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Oral History of Honorable Arthur L. Burnett, Sr.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is William Marmon and the interviewee
is Honorable Arthur L. Burnett, Sr. The interview took place at the home of William Marmon on
Thursday, October 24, 2019. This is the third interview.
MR. MARMON: Good morning, Judge.
JUDGE BURNETT: Good morning.
MR. MARMON: Today we’re going to talk about two periods in your life. One, the period
where you were active in the United States Civil Service Commission, and
since we already covered in the last session your six years as a federal
magistrate, then we’re going to go directly to your period as a judge in the
D.C. Superior Court. So let’s start with the United States Civil Service
Commission. Can you give us the background of how you got into that
and what you did and the dates thereof?
JUDGE BURNETT: Very well. In the fall of 1975, I was called by a gentleman named Fred
Abramson, who was the President of the District of Columbia Unified Bar,
and in the course of the conversation, he introduced me to a gentleman
named Carl Goodman, who was the General Counsel of the United States
Civil Service Commission, and said they were looking for a person who
was of color for the position of Assistant General Counsel in charge of
Legal Advisory Section of the General Counsel’s Office to issue advisory
opinions on what the civil service system would require, but also be
consistent with equal employment opportunities requirements. For
perhaps five to ten minutes we talked generally and I mentioned a few
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names. At that point they asked me would I be interested in the position in
view of my academic achievement and professional experience as a
judicial officer functioning as a magistrate. I hesitantly paused and
reflected and said I was happy doing the legal work of a magistrate in the
federal court and that I thoroughly enjoyed the nature of the work and the
challenges and it could lead to me being appointed as a federal district
court judge. I note that at that time Congress had not amended the
legislation dealing with magistrates to add the title “judge.” That change
in title did not occur until the late 1980s. They said well you are young
enough to become a federal judge as, you are in your early 40s. I
responded that I had just turned 40 earlier that year and paused and said let
me think about it.
Well at the same time, my wife and I had five children. My wife
had been complaining that I was so busy as a magistrate bringing work
home to work on at nights and weekends that she ought to just take the
children and go back home to Oakland, California and then she would
have more help from her relatives than she was getting from me. This
attitude and the issue of spending more time with my five children
weighed heavily on me, and I said let me think about it. Further, the job
as Assistant General Counsel would pay considerably more than what I
was getting as a magistrate. As I now recall it would result in a pay
approximately between $22,000 to $23,000 more than what I was
receiving as a magistrate. My four older children were entering their early
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teens, and in three or four years later they would be entering college one
after the other with all the expenses that would involve. I said I would
give the matter serious thought and this led to a further meeting with the
three Commissioners in person with my wife present in their conference
room to assure her that I would have more time to spend with the children
and that politically I would not have to get involved but could give legal
opinions like a judge would objectively and as required by the United
States Constitution and the laws. Then all three Commissioners – the
Chairman Alan Scotty Campbell, Vice-Chair Jule Sugarman and
Commissioner Ersa Poston – assented to those conditions and stressed that
I would have a staff of attorneys working for me which would give me
more time to be with and involved with our children and that they would
honor the condition that I could act like a federal district court judge
harmonizing the civil service law with affirmative action and not be
required to yield to political considerations in the legal opinions I
approved or wrote or had staff attorneys write for my approval. I
emphasized that I would only approve or write legal advisory memoranda
or letters that I thought five Justices on the United States Supreme Court
would approve. Commissioner Ersa Poston responded “That’s ideal, Mr.
Burnett. That’s what we want. Under the President we do not intend to
compromise the Merit System and we want someone who will act like a
federal district court judge.” Vice-Chairman Jule Sugarman made similar
comments, and then Chairman Scotty Campbell said, “Well if my two
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colleagues here accept those guidelines, we are prepared to offer you the
position.” I then accepted the position and left the magistrate’s system.
Thus, after agonizing over the decision, I decided to take the offer and to
become the United States Civil Service Commission Assistant General
Counsel in charge of the Legal Advisory Division of the Office and I did
have more time to become an assistant scout master in which our two boys
were involved and to referee football games in which they played, and to
participate in activities of our two older daughters at their schools and the
activities in which they were engaged as teenagers. Our youngest
daughter was then only 3 years old at the time.
MR. MARMON: Tell a little bit about what you did in the job.
JUDGE BURNETT: In the job, when issues came up about harmonizing equal employment
opportunities, affirmative action, with civil service merit requirements, I
wrote legal opinions which were then sent by the Commission to a
government agency or department saying our legal advisor advises that no
you can’t do this or yes you can do this and so forth. With reference to
blending the two, some would say conflicted, I would say actually I can’t
see being a reverse segregationist in the sense of favoring a less-qualified
black over a white person who is equally or more qualified. And indeed, a
very interesting thing happened while I was in that position.
I was asked by Eleanor Holmes Norton to an interview with her to
become the General Counsel of the Equal Employment Opportunity
Commission. She went over those issues with me, and I made the same
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comments in substance I had made to the three Commissioners of the
United States Civil Service Commission. I told her that I could not
compromise the civil service merit standards and act like a White
segregationist in favoring White candidate over a better qualified Colored
individual. Thus, I unequivocally stated as an African-American I could
not give preference to an African-American over a better qualified White
applicant. I emphasized that I would have to be “color blind.” I was not
selected to be recommended to the President to be appointed the General
Counsel and continued as Assistant General Counsel of the United States
Civil Service Commission. I had taken the position that I could not
shoehorn affirmative action and give it greater preference than the civil
service system required.
So I think my insistence on being a purist caused me not to be
recommended for Presidential appointment as General Counsel of the
Equal Opportunity Commission at the time. I continued as Legal Advisor
in the Civil Service Commission, and then along about late 1976 or early
1977, President Jimmy Carter asked Scotty Campbell who in the Civil
Service Commission was the most scholarly, qualified person to reform
the civil service system. I was designated by Scotty Campbell to be the
Legal Advisor to the President in overseeing and developing proposed
legislation to improve the civil service system, to flesh somewhat
patterned on the model of the Office of Management and Budget and to
flesh out its powers and obligations, thus developing the prohibited
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personnel practices, and drafting the other provisions to be in the law as to
its duties and obligations. I was further assigned the task to deal with
separation of employee rights in a new entity to be called the Merit
Systems Protection Board (MSPB) and I drafted the provisions in the bill
to establish that separate entity. And its duties and obligations. Finally, I
drafted the provisions as to the duties and obligations of the Office of
Special Counsel to prohibit political activity by federal government
employees. Finally, the proposed legislation contemplated the creation of
a Labor-Management Agency for the federal personnel system, the
proposed provisions being drafted by experts in the Civil Service
Commission dealing with labor unions and labor-management issues, and
I oversaw their proposals which went into the bill which resulted in the
Civil Service Reform Act of 1978.
Then the Merit System Protection Board separated the
management side from determining the rights of employees and so forth. I
wrote the provisions on Merit Systems Protection Board. And then, along
with an expert in labor management, co-wrote the provision dealing with
and setting up and defining the powers of the labor relations. Fourth was
carving out the role of the Office of Special Counsel to deal with
prohibiting political activity by government employees. I took the lead,
along with the expert in the labor field and the Hatch Act field of drafting
what became the Civil Service Reform Act of 1978.
MR. MARMON: Were you involved in the legislative process?
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JUDGE BURNETT: Yes. As a matter of fact, during that time I was officially the Civil Service
Commission liaison to the White House Counsel’s Office and physically
present in the White House and on the Hill in dealing with House of
Representatives Post Office and Civil Service Committee and dealing with
Senate Governmental Affairs Committee. I was the lead person that the
President had to shepherd that legislation through Congress. Frequently, I
was there with the Committee staff of the House and the Senate
Committees until 11:00 p.m. or 12:00 midnight or 1:00 a.m. in the
morning on proposed amendments, drafting bill language, and reviewing
drafts of House and Senate Committees’ Reports on the proposed
legislation.
Indeed, in one instance, and this is probably, I won’t say the most
tested time I ever had before a Congressional Committee. I testified for
the Administration on the entire bill before the Senate Governmental
Affairs Committee as the lead government witness. When I finished
testifying for the Administration on the entire bill, the Chair said,
“Mr. Burnett, we don’t want you to leave. We want you to sit at the end
of the witness table over there, and as each witness testifies and raises
questions about what this legislation will provide as to any provision in it,
we want you present to answer them.” So I sat before that Committee
from approximately 10:00 a.m.in the morning until 6:00 p.m. that evening
responding to the criticisms and questions prompted from all the witnesses
who testified that day and answers questions from members of the
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Governmental Affairs Committee prompted by the witnesses’ testimony.
Before the House Post Office and the Civil Service Committee I did the
same thing but it was not quite as grueling as the proceedings before the
Senate Committee. In connection with the proposed legislation, on the
day I testified before the Senate Committee, I had been requested by then
Representative Gladys Spellman of the 8th Congressional District in
Maryland, to appear and testify in Maryland where she was holding a
hearing and she said she wanted me to be at this hearing she was holding
that night. To hear from her constituents and answer any questions any of
them might have about provisions of the proposed legislation. I went to
that hearing, which went from about 8:30 p.m. to almost 12:00 p.m. that
night. That was the most grilling day I have had in my life.
The outcome of that was I got to be very, I won’t say attached, but
very close as a liaison to Abraham A. Ribicoff, of Connecticut the then
Chair of the Senate Committee, and Representative Morris K. Udall of
Utah. It was as if I was almost a member of their respective Committees’
Staff. When they drafted the House and Senate reports, they had me to
review them to make sure they were accurate.
MR. MARMON: What were the major innovations or changes that the Act provided for?
JUDGE BURNETT: In connection with prohibitive personnel practices, we had provisions
dealing with the so-called whistleblower problems and protections and
how to protection whistleblowers against retaliation who act in fact with
genuine sincerity as to alleged corruption or politicizing merit decisions
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in the civil service system and to make sure that the merit system operated
like a scientific model based on pure merit and not because of
relationships, politics or bias or prejudice of any sort. So my biggest
challenge was to draw up prohibitive personnel practices that would
provide adequate protection and guarantee that the merit system would not
be corrupted.
MR. MARMON: How long did you stay in that job?
JUDGE BURNETT: I stayed in that job until January 1980. Indeed, during the course of that
time period in 1978 or early 1979, that when I was also in a time period
when I came under consideration for appointment to the U.S. Court of
Military Appeals, now called United States Court of Armed Services
Appeals, was interviewed by Deanne Siemer, General Counsel of the
United States Department of Defense for appointment to the United States
Court of Military Appeals, later renamed the United States Court of
Appeals for the Armed Forces. Also during that same time period, I was a
final candidate for the U.S. Court of Appeals for the Federal Circuit and
interviewed by the Judicial Nomination Commission for appointment in to
that Court in 1978-1979. Both of those potential appointments occurred
during the same time period, and while I was among the finalists being
considered, I was not selected for either of these two appointments.
One of the questions raised before the Judicial Nomination
Commission for the Federal Circuit Court of Appeals was whether I had
left the magistrate position because I had done something wrong or
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somehow messed up as a judicial officer. There was a lingering cloud and
some persons thought my family situation and pay compensation
justifications were merely a cover for having somehow messed up.
Usually when a person gets to be a judge, he or she dies in the office
retires as a judge, but a judge does not leave to take another job. I later
learned from Chief Judge Aubrey Robinson upon being re-appointed a
Magistrate the second time in 1980 and also from others that Members of
the Judicial Commission for the Federal Circuit Court appointment had
called district court judges of the District of Columbia and had asked if
there was anything unfavorable about as to why I had left the magistrate
position in 1975. They later told me that the Commission was a little
concerned that I had given up the magistrate position and went to be legal
counsel in the United States Civil Service Commission and if any judge
had found any problems with my performance as a judicial officer. We
told them definitely not, that I was totally in compliance, and it wasn’t
until January of 1980 that I was reappointed as a magistrate again, the
second time, I think the suspicion that I had done something wrong or
displeased some federal judge and had been kicked out that the shadow or
the question totally disappeared.
MR. MARMON: Any other events you want to talk about for the period in the Civil Service
Commission?
JUDGE BURNETT: In 1979 – 1980, that was a Presidential Campaign between President
Jimmy Carter being re-elected and Ronald Reagan I was being vetted to
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be appointed Director of the Office of Government Ethics. Or
alternatively, the Director of the Office of Special Counsel by the White
House. An investigation for my nomination to one of these positions and
was in process for me for that appointment. However, it then appeared
that President Jimmy Carter would lose to Ronald Reagan. Even though
each of those offices carried four year terms, I concluded that an occupant
of that position was still removable by the President. I concluded that if I
took either appointment by then President Jimmy Carter, if Ronald Reagan
got elected, he could demand my resignation and I would be out in private
practice, and at that point, in 1980, my oldest daughter was just entering
college and my older son would be starting college in 1980. I concluded
that I did not want to be thrown into private practice with two of my
children starting college. It was then that former Chief Judge Aubrey
Robinson called me and asked if I would be interested in coming back as a
magistrate again. I noted that Congress had raised the salary to 90% of the
level for district court judges and I enjoyed judicial work so much, that I
applied to return to my old position as the person who had taken my place,
had been appointed to the Superior Court of the District of Columbia and
that position was vacant again. That 90% salary was equivalent to what I
was earning as Assistant General Counsel then in the Office of Personnel
Management. I said definitely, at least I would have more stability and
security in my life and for my family. I then notified the White House of
my decision and pulled out of being vetted for either of the two
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presidential appointments by President Jimmy Carter and opted to go back
to being a magistrate, and was sworn in the second time in January of
1980.
That was my plight in December 1979 and early January 1980. I
turned down two potential Presidential appointments.
MR. MARMON: Maybe we should talk about your second magistrate years. I’m not sure
we covered that last time. We just covered the first magistrate period.
Let’s move on to that and then move into your Superior Court
appointment.
JUDGE BURNETT: Before we do that, while I was in the legal advisory status, Congress
considered legislation to expand the jurisdiction of the United States.
Magistrates. I was the Chair of the Federal Bar Association’s committee
on the magistrates system, and I appeared and testified before the Senate
Judiciary Committee with Ted Kennedy as Chair and Strom Thurmond as
Minority Leader at the time. Griffin Bell, then Attorney General and
formerly a 5th Circuit Court of Appeals Judge, had testified about giving
magistrates authority to try civil cases with consent of the parties. But the
Justice Department’s position was to provide for a de novo trial before a
U.S. district court judge in the district court if the parties did not like the
result of what happened before the magistrate in a civil case trial.
I appeared representing the Federal Bar Association being a former
United States magistrate at that point and testified that United States.
Magistrates are selected and appointed by the federal district judges who
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select them like they select their law clerks – the best who apply.
Therefore, a majority of the active sitting district court judges will select
the best intellectual person they can find. Second, magistrates who are
selected will want to encourage the lawyers of the Bar to consent so civil
trials before them and therefore magistrates are not going to be as
arrogant or dictatorial or acerbic as some district judges may be, and thus
magistrates will bend over backward to be civil and reasonable to
encourage lawyers to use them more, and will take a more neutral middle
road in dealing with the lawyers, and the lawyers might be more
comfortable in trying cases before United States magistrates than some
federal district judges. Finally, magistrates who are selected for the
position figure they might want to become district court judges, so they’re
going to set out when they have these consent cases to give the litigants
and the lawyers the best trial they can give them. Senator Strom
Thurmond said, “Mr. Burnett, that’s a brilliant idea.” And indeed they
rejected Attorney General Bell’s position and actually accepted my
position of giving consent jurisdiction to United States magistrates but
with appeals directly to the United States. Courts of Appeals so you would
not have the double expense of litigants having to fund two separate trials
in the district court if they didn’t like the outcome of what happened
before the magistrate.
Thus I was the spark plug, you might say, of overriding the Justice
Department’s position and getting Congress to provide basically that with
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consent, the magistrate sits as a substitute district court judge with direct
appeal to the applicable U.S. Court of Appeals.
In addition during that time, they were also broadening the pretrial
functions in dealing with pretrial motions, and indeed, we developed a
system and a rule of the court which was adopted throughout the Congress
that the district court would have a rule that magistrates would submit a
report and recommendation, but when ten days expired and neither side
have objected to the magistrate’s report and recommendation, it
automatically became the ruling of the district court without a judge even
bothering to read it. They adopted that practice, and I was the guy running
with the football in getting that accomplished.
MR. MARMON: Moving on into your period as magistrate for the second time, let’s talk
about that period now.
JUDGE BURNETT: During that period, the role of magistrate judges in civil cases, especially
as a result of Congress giving magistrate consent power to try cases, they
also gave magistrates the power to preside as settlement judges to settle
cases and to more or less enter orders dealing with discovery issues and
deposition disputes, interrogatories, confidentiality, attorney client
privileges matters, application for attorney fees, where applicable,, et
cetera. I had many legal issues come before me where I wrote opinions
much like a district court judge that were published in the Federal Rules
Decision. During that period, I wrote 43 such opinions published in the
Federal Rules Decision Reporter as pretrial rulings of the U.S. District
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Court of the District of Columbia. (See Appendix for list of such cases)
Indeed, one case I dealt with the complicated issue of attorney-client
privilege and the issue of whether or not the attorney-client privilege was
say abrogated when the attorney was complicit in the obstruction of
discovery or destruction of documents. As a result of my ruling in that
particular case, CBS Broadcasting Company, a sexual harassment case
was settled, and the decision was then later cited by the 7th Circuit Court
of Appeals as to how federal courts should rule in federal courts in the
entire nation. The attorney-client privilege does not protect a lawyer who
becomes an aider and abettor in a crime, a co-conspirator, or participant in
a fraud, or obstructs justice in a criminal case.
MR. MARMON: Can you go into more detail about what was concluded there?
JUDGE BURNETT: I concluded that the attorney-client privilege did not apply when there was
sufficient or valid evidence that the lawyer was engaged in covering up or
protecting a broadcasting company from allegations of sexual harassment
by a woman, and if the lawyer had in fact advised a client to destroy and
not to produce certain things, then the attorney-client privilege had no
application, and that would be an exception to the attorney-client
privilege. This principle might well also apply in obstruction of justice
cases or accessory after the fact.
MR. MARMON: Interesting. Any other notable cases that you had?
JUDGE BURNETT: As a result of my pretrial rulings and handling of pretrial discovery issues,
many lawyers began to consent to trials before me actually sitting as a
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district court judge, and in1985, I actually tried, presided in a role of a
United States District Court judge, over thirteen civil cases and ultimately
tried as if I were a district court judge with direct appeals to the court of
appeals applicable. None of those cases were reversed.
MR. MARMON: Do you remember any of those cases, the particulars of any of them?
JUDGE BURNETT: Not specifically right now, but I recall that when I was nominated by
President Ronald Reagan to be appointed to the Superior Court of the
District of Columbia, which handles both state type general jurisdiction
crimes and civil cases as well as some federal cases, I had to compile that
information and submit it to the Senate Governmental Affairs Committee
that oversees the confirmation of judges to the D.C. Superior Court.
That’s why I remember the number thirteen separate cases with a specific
number in mind. I provided that list of 13 cases to the Committee during
my confirmation hearing process.
MR. MARMON: Let’s move on to your appointment by President Ronald Reagan to the
D.C. Superior Court. How did that come about?
JUDGE BURNETT: Actually, in 1987, I applied both for the U.S. District Court and the
Superior Court, and Ed Meese was Attorney General. Royce Lamberth
was also being considered for District Court. Royce Lamberth told me
that Ed Meese told him that his competitor for appointment to the federal
district court was Judge Burnett, but we have enough black judges on the
district court now, and indeed Royce said he got the appointment because
Meese, as a political matter, didn’t want any more black judges on the
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U.S. District Court, and I ended up on the Superior Court. The two of us
were being considered for federal court and I ended up on the Superior
Court, Royce Lamberth got the federal appointment. We both went
through confirmation procedures at the same time.
MR. MARMON: What happened during the confirmation proceedings?
JUDGE BURNETT: Basically at the hearing they reviewed my life history much like we are
talking here now. What is your history, Judge Burnett, what have you
done, and have there ever been any ethical complaints filed against you. I
said I don’t know of any. I have never been told of any. Pretty much
basically I recall that there was a Senator Sasser from Tennessee and
Senator Roth from Delaware on the committee that presided over my
confirmation hearing, and they were more laudatory about my background
then I would have been in person. They said they remembered me from
my work with Congressional Committees because I was the one who led
the work on Civil Service Reform in the Carter Administration They
explicitly spoke of my excellent work with the Committees dealing with
Civil Service Reform. Indeed their statements were far longer than my
official statement in my confirmation hearing. Their statements in the
transcript sounded more like my eulogy and I had died and gone to
Heaven. They asked me certain perfunctory question like have any Bar
discipline complaints ever been filed against you, have you ever had any
tax problems, are you aware of any of your children being involved in any
drug problems or illegal conduct or so forth. The ultimate question was
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whether I aware of any fact about me which would embarrass the
President of the United States. I think my testimony before the Committee
was only three or four pages.in length.
MR. MARMON: What was the vote for confirmation?
JUDGE BURNETT: Unanimous for confirmation. According to what I was told, by consent. It
was not controversial at all.
MR. MARMON: Was it voted on in the full Senate?
JUDGE BURNETT: Yes. Full Senate.
MR. MARMON: That was also by unanimity?
JUDGE BURNETT: The way I read the record it was unanimous.
MR. MARMON: Let’s talk about life in the D.C. Superior Court.
JUDGE BURNETT: When I got sworn into the Superior Court, Fred Ugast was the Chief Judge
of the Court. I was sworn in one day, and the next day he said, “Judge
Burnett, you are an experienced judicial official. We don’t need to go
through training. Here’s your calendar, go sit on the bench. So I didn’t
even have to go through a training period. I was just transferring from one
kind of cases to another type of cases. So my second day on the job, I had
a full calendar and started handling cases just like an experienced judge on
the Superior Court of the District of Columbia.
MR. MARMON: What kinds of cases did you have?
JUDGE BURNETT: I started out with a misdemeanor calendar dealing with simple assaults and
shoplifting, destruction of property, unlawful entry and petty larceny.
Then moved on to handling felony criminal cases involving assaults with a
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dangerous weapon, burglary and robberies. The assignments at that point
were for one year at a time so usually from January through December. I
came on in November, so most of the year had passed, and in January I
was assigned a Felony II case which is everything that involved such as
offenses carrying 5, 10 and 15 years sentences,, and then finally I moved
on to handling first-degree murder and, rape cases which carried the
potential of 30 years to life sentences. To use a baseball analogy the
Chief Judge started a new judge off handling minor criminal cases and
then moved the judge up to more serious cases and ultimately to the big
league handling first degree murder cases.
MR. MARMON: Was the court on Fifth Street?
JUDGE BURNETT: I started off in the Court of General Sessions Building at Sixth and E
Streets, N.W. The Civil Court cases were handled down in a Court
Building at Fifth and E Streets across from where the new Center Judicial
Building is now. For the first year or two, my chambers and courtrooms
were on Fifth and E Streets, Northwest.
MR. MARMON: Did you enjoy that work?
JUDGE BURNETT: Yes. It was fine. I just jumped in and did what had to be done.
MR. MARMON: How long did that period go on for?
JUDGE BURNETT: Actually, the Chief Judge changed calendars every year. There came a
point that I was assigned to a civil calendar. I think I took over the
calendar from Judge Ricardo Urbina that had over 750-cases on it, and I
was getting about 70-80 new cases every month, so that meant I had to
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dispose of about 80 cases just to keep the calendar manageable. During
that period I worked day and nights handling and reviewing my assigned
civil cases spending 14-16 hours a day. I recall that when I left the
calendar two years later, I had reduced the calendar to approximately 550
cases. I at least kept current, got rid of the older cases first within two or
three years and was able to reduce the calendar by approximately 200
cases. I was on the civil calendar for a couple years and then I went back
on criminal cases calendar dealing with murder and rape cases and major
drug cases.
During that time period I received the case involving Carl Rowan,
a noted columnist and news media person, and a former ambassador, with
reference to youth breaking into his house and swimming in a pool at his
residence, and it resulted in charges against him for unlawful possession
and having a gun. In that case the defense claimed that the Police
Department had approved him having the gun in his house for his
protection. I developed a new doctrine and created a jury instruction that
instructed the jury that if the Police Department had approved him having
the weapon, then the Government Prosecutor should be estopped from
convicting him for unlawful possession of the weapon or carrying the
weapon in and about his own residence. The jury hung and the
Government did not proceed to try him again and the charges were
dismissed. Thus, I developed the criminal defense doctrine of estoppel by
government action – a new doctrine called estoppel by government action,
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with referenced to the fact that the police department had in fact approved
Carl Rowan having a gun in his house, and then the government turned
around and after the pool incident prosecuted him for illegal possession
and display of weapon. I analogized that behavior by government agents
to a situation like a law enforcement officer telling an individual he or she
can park at such a location in an emergency situation and when he returns
finds that he has received a parking ticket for illegal parking when he had
the approval of an officer to do so. I wrote an opinion on that issue with
reference to that defense. I developed that doctrine with reference to
estoppel with reference to criminal prosecution and that being a valid
criminal defense when a person acts at the direction of law enforcement
and then they turn around and prosecute that person for illegal conduct.
The other big case I had was the one involving John Hinckley, in
connection with shooting President Ronald Reagan. That was during my
second appointment as United States Magistrate in the United States
District Court for the District of Columbia
MR. MARMON: Let’s talk about that.
JUDGE BURNETT: In the district court as a magistrate, I was the arraigning judicial officer
who handled the preliminary proceedings involved as a magistrate the
second time when John Hinckley was arrested and brought before the
court. I recall that I conducted the initial appearance around midnight
with the Director of the FBI sitting in the front row of my courtroom and
with the courthouse being under tight security, and I entered the order
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referring him to a federal mental health center for a determination of his
mental status and whether he could claim insanity as a criminal defense in
the prosecution of the case. Subsequently upon referral from Judge
Barrington Parker I handled other pretrial proceedings in the Hinckley
case as well.
I also handled many cases involving demonstrators against the
Vietnam War. I actually had the experience of women sometimes being
arrested with young babies and opening their blouse clothing with their
breasts fully exposed and nursing their babies sitting on the courtroom
floor waiting to for their initial appearances and bail or pretrial release,
but refusing to give their true identities, and thus I was left with no
alternative but to commit them without bail as “Jane Doe’s” until we could
get the history of the individual and/or identify parents or other relatives
and arrange for third party custody releases arraigned or being advised of
their rights as a magistrate judge the second time around in the federal
court system. I also handled cases as a magistrate involving persons
protesting against the United States Supreme Court in connection with its
rulings on abortion, and even one case in which Chief Justice Rehnquist
was listed as a witness. The case was resolved without the need for his
appearance.
MR. MARMON: Going back to the Superior Court days, are any other cases you want to
talk about?
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JUDGE BURNETT: There was one other case, and as a matter of fact I developed an expertise
in dealing with neglect and abuse cases, welfare and foster care cases. We
had one case in which a lawyer on behalf of a young lady had filed what
you would call a motion for termination of parental rights. She had been a
runaway from home and considered “incorrigible”. She was placed in a
group home by another judge of our court. My recollection is that it was
in a group home facility in Georgia. She testified by electronic means
over open microphone from the group home that she ran away from home
not because she was engaged in prostitution but because her mother could
not have a baby and wanted to give her $500.00 to get pregnant by her
mother’s live-in boyfriend and she kept running away because she did not
want the mother’s boyfriend to impregnate her and that she wanted to in
her words divorce her mother, change her name, and start life over again.
When she testified on open microphone from Georgia into the courtroom,
the courtroom audience was spellbound. Further, her grades had so
improved while in the group home that she was preparing to attend
college. I granted the motion. At the point when she was in the group
home, she had participated in furthering her high school education where
she was an A and B student and would be going to college, stating that she
wanted to become a social worker to prevent other girls going through
what had happened to her. So that was one of the most interesting cases I
handled in the Superior Court sitting on termination of parental rights
cases.
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The other aspect of that assignment was that I also became the
adoption judge. As the adoption judge in these cases, I had numerous
petition to review to decide whether to grant or deny petitions for adoption
by the caretakers. These cases tugged at my heart strings and I frequently
stayed up until 2:00 a.m. in the morning review adoption case files. I
recall there was one occasion that In one month, I granted a total of 83
adoptions to give these children loving homes and the quality of care they
deserved. This was probably the highest number of adoptions in one
month by any judge of the Superior Court of the District of Columbia.
This may well be the highest number of adoptions granted in a month’s
time in the history of the Superior Court in the District of Columbia. I
have not heard of any other judge of the Superior Court granting more
adoptions in one month’s time.
MR. MARMON: Why was the Superior Court monitoring the adoption process?
JUDGE BURNETT: The Superior Court was created as a general jurisdiction court with
comprehensive jurisdiction over all types of cases rather than having
separate specialized courts as in some states. Thus Congress consolidated
in the Superior Court jurisdiction all types of matters handled by state
courts throughout the United States and also authorized the Superior Court
to handle some cases based on federal grounds such as the prosecutions by
the United States Attorney in the Superior Court and allowing civil cases
involving unlawful discrimination and other types of cases to be brought
in the Superior Court because of the status of the District of Columbia.
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Thus, the Superior Court has far broader jurisdiction than Circuit Courts in
the States as general jurisdiction courts. Superior Court is a
comprehensive court that covers all those matters as a consolidated court
rather than a separate adoption court like you used to have back in the
olden days in some of the states. So the Superior Court has functioned
basically as a dual court, as a state court of general jurisdiction over all
state-type matters, as well as being a quasi-federal court much like
territorial court in the Virgin Islands and Puerto Rico. So Superior Court
judges handled cases both that were state-type cases and federal-type
cases.
MR. MARMON: Adoption cases were contested adoptions or why were they before the
court?
JUDGE BURNETT: Absolutely. Many times the parents would not want their rights
terminated and their child or children adopted. There was also the
question of suitability of the people who wanted to adopt a child contested
by social workers of the government agency overseeing the child on
welfare. They would make reports, including reports on lifestyle, history,
drug uses, and so forth, of the potential adoptee parents.
As a result of my work in the Superior Court and dealing with the
foster care cases and neglect abuse, termination of parental rights and
adoption cases, I came to the attention of Marian Wright Edelman, and
when I got to a point where I was eligible to retire, Marian Wright
Edelman said, “Judge Burnett, why don’t you retire, take senior judge
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status where you can select where you want to sit or don’t want to sit and
become my judicial advisor with reference to legislation and policies to
improve the system for youth and deficient homes in America.” So in
1998, between eleven and twelve years into my fifteen-year term, I
decided to retire, or semi-retire, you might say, and take senior judge
status in October 1998. Whenever I was not actually engaged in activities
for the Children’s Defense Fund and testifying before Congress, I was
available almost full time from 1998 until 2004 handling civil cases
involving the youth system of the Superior Court dealing with juvenile
delinquency, dealing with neglect and abuse, dealing with termination of
parental rights and adoption simultaneously while being an advisor to the
Children’s Defense Fund with Marian Wright Edelman, and to some
extent, on legislation involving children I had dealings with Hillary
Clinton and other members of the United States Congress.
As a matter of fact, Marian Wright Edelman urged me to work
with Hillary Clinton’s office staff as a volunteer when she was a United
States Senator. I did not pursue that option as I concluded that I would be
working in the Senator’s office full time and not available to work for the
Children’s Defense Fund or to handle cases as a Senior Judge of the
Superior Court. I also ended up being a frequent speaker at conferences
and programs around the country and even to establish and run programs
at the Alex Haley Farm in Tennessee put on by the Children’s Defense
Fund on how to improve the childcare system in America.
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MR. MARMON: What were some of your views on that?
JUDGE BURNETT: My views on that were that I recommended, and I recommended even to
the city here, that there should be a middle ground between terminating
parental rights and adoption called temporary guardianships which would
provide for temporary guardians for children who are in homes where the
parent has a drug problem and tell the parent we will give you two years
to effectively deal with your drug problem if you want your child or
children back with you and back under your care. If at the end of two
years you are not improving or you are going downhill, then the child will
be put up for adoption, but let us get the child out of your house into a
stable setting where we don’t have the problem like the girl in Georgia
where the mother was trying to force the girl to have sex with her live-in
boyfriend to get pregnant by him because she, the mother, could not get
pregnant and now have a child. In many instances, unfortunately, many
poor black women sometimes sell their bodies to get their drugs.
Sometimes they even offer their teenage or pre-teen girl child or children
for sex. They may say: “I’m on the rag now, you can have sex with my
daughter instead.” Mom may tell the daughter if you do not do it, we will
lose our place to stay and have to live on the street. So we have run into
those hard problems in dealing with people who live in property and
people with drug addiction problems. Sometimes drugs lead people to do
things that are almost unimaginable.
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So I have dealt with those type of situations, and in many
instances, I have worked out a situation under the State Transfer Act of
providing for interchange among states for children to go to Georgia,
Mississippi or Alabama to live with grandparents for a couple years while
the mother or father try to get their lives straightened out, and if they do,
the children can come back and still be biologically and legally their
children if we had a guardianship arrangement as opposed to terminating
rights of the natural parent and placing the child with initially with a
stranger who may develop such an attachment with the child to legally
adopt the child.
That was the toughest problem I have faced in my judicial career is
how to break the back of cyclical poverty and degradation and to give
these children the opportunity to develop their abilities and talents and
become contributing to the communities in which they become adults, and
at the same time reducing significantly crime and violence in the United
States. Coming up with a middle ground approach of temporary
guardianships may be a way to improve the quality of our communities
and reduce crime, violence and mass incarceration in this nation. Such a
system would create an incentive for biological parents for people to cope
with their addictive dependency problem to turn their lives around.
Finally, if the temporary guardianships would also provide for
guardianship subsidies, like adoption subsidies, it may give senior citizens
who have retired from 40 hour a week employment, supplemental income
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to remain in our inner cities and help provide for their healthcare as senior
citizens and keep their lives interesting and productive. It could slow
down the gentrification of our major urban areas of this nation and
improve public safety. It could revitalize the concept of it taking the
whole village to raise a child to reach his or her potential as a human
being.
MR. MARMON: How was it like working with Marian Wright Edelman?
JUDGE BURNETT: She is a most agreeable and inspiring woman, most compassionate, and
indeed she would have been a better choice for the Supreme Court than
Clarence Thomas [laughter]. I think she would have been a person on the
United States Supreme Court who would be more like a Justice
Frankfurter or one of the most scholarly justices we could have had.
Until 2004, that was the area in which I more or less specialized in
– dealing with children issues in the court system. Being a speaker for the
Children’s Defense Fund and advising Marian Wright Edelman, Congress
on legislation and bills pending in Congress and communicating with
Senator Leahy, Senator Leahy, and Congressman Bobby Scott and others
in the House of Representatives was most fulfilling to me. I sort of served
as her liaison with members of Congress on children’s issues.
MR. MARMON: When did you actually leave the Superior Court altogether?
JUDGE BURNETT: August 1, 2004. That came about in connection with my being involved
with the National Bar Association to create a coalition of major Black
organizations to deal with the social problems of poor Black Americans
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and the criminal justice system and needed reforms in both the juvenile
justice system and in the criminal justice system in dealing with adults. In
the period of 2002, 2003, Clyde Bailey, a lawyer with Kodak Camera
Company had surgery done by my doctor son and learned of me through
my son, who’s a doctor at Johns Hopkins specializing in prostate cancer,
and he sought me and said he did not know why he had not learned of me
before then. He then contacted me and asked me to meet with him and
told of his plans once he became President of the National Bar
Association. These discussions led to him asking me to be his judicial
aide or judicial chief of staff as the incoming President of the National Bar
Association. He stated: “What I want to do as my legacy to the National
Bar is to bring together all the major Black organizations in this country in
a unified matter, much like the United States or a United Nations, and
based on your background and experience, I want you to be my principal
adviser to do this.” He advised that his wife was a Ph. D. Professor in
Psychology at Howard University would also work with the two of us on
this program. He concluded that he wanted me to be their advisor in
setting up this Coalition.
The Coalition had its initial meeting in the House Rayburn Office
building that was set up by the Congressional Black Caucus Foundation. I
was the emcee at that particular event, and members of the Black Caucus
Foundation encouraged us to proceed with the implementation of our plan
to create this Coalition. I was designated to take the lead to achieve this
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objective and on August 1, 2004 I took a sabbatical from the Court as a
Senior Judge to recruit and organize this Coalition of Black Professional
Organizations as the consensus at the April 1, 2004 meeting was
unanimous to proceed with setting up this Coalition.
So on August 1, 2004, I took a sabbatical from the Superior Court
to become full time the executive director of the National AfricanAmerican Drug Policy Coalition, an association of organizations at that
point, to explore with the various organizations their interest in joining a
Coalition of organizations to deal with coming up with retention
programs to keep our Black kids from getting involved in drugs, juvenile
delinquency behaviors and criminal type conduct and eliminate biases and
prejudices in our juvenile justice and criminal justice systems. So I went
on sabbatical, then for what I contemplate d would be just for one or two
years and then returning to the Superior Court to resume acting as a Senior
Judge hearing cases for the remainder of my life. When this brief period
was up, I went back before the Commission on Disabilities and Tenure to
ask for an extension of my sabbatical and it indicated that I was doing
such a great job, that they would give me an indefinite extension. So I still
was considered a senior judge on the court with the power to return to the
court but continued indefinitely. On sabbatical. Year after year went by,
and they kept extending me as a senior judge on sabbatical until 2013,
nine years later. Then Judge Gladys Kessler of the United States District
Court, who was the Chair of the Commission, called and said “Judge
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Burnett, you’ve been gone so long, why don’t you just go ahead and retire
completely, and now you also are working closely with the Obama
Administration, and though you have tried to avoid getting involved in
political stuff or things you have to handle were you to return to hear
cases. Why don’t you just go ahead and retire completely?” So I retired
completely as a judge of the Superior Court of the District of Columbia
on February 15, 2013.
But in the meantime, going back to August of 2004, that was an
organizing period of exploring with the National Medical Association, and
National Association of Black Social Workers, the Association of Black
Psychologists, the National Organization of Black Law Enforcement
Executives and other Black Organizations whether they would join and
become member organizations of the National Coalition, Inc.
It was our initial plan that when we got to a fifteen such
organizations, we would proceed to incorporate and apply for 501(c)(3)
status with the Internal Revenue Service. However when we reached July
2005 and we had a total of 15 member organizations indicating their desire
to become members of the National Coalition, about July of 2005, we
reached that number of fifteen, but we had about eight additional
organizations indicating an interest and suggesting that we say hold up
incorporating and formalizing the Coalition. So we held up in 2005, and
finally, by January of 2006, we had 23 separate national Black
organizations saying they wanted to create this coalition and incorporate
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much like a United Nations with the National-African American Policy
Coalition under your leadership being an organization dealing with
Congress, dealing with implementing civil rights in criminal justice,
juvenile justice and preventing our kids from contributing to mass
incarceration of blacks in this country. So we proceeded and were
incorporated in District of Columbia on January 12, 2006. Then through
the services of voluntary counsel we applied for and received our Internal
Revenue Service status as a non-profit corporate entity on August 30,
2006 retroactive to January 12, 2006. In the incorporation process I
became the Vice President of Administration. Since August 1, 2004, I
have been the National Executive Director of that organization.
On October 1, 2018 I relinquished the position of Vice President of
Administration in view of my age and health issues and the Board of
Directors decided to divide the functions with another retired judge taking
the Officer Position as Vice President of Administration, but I continuing
at the present time as the National Executive Director and the National
Spokesperson for the Coalition.
The current situation is I’m still the national executive director and
national spokesperson, but she’s the vice president of administration, so
when things come up having to do with authority of vice president or in
her domain overseeing that, I say you can take care of that now. I remain
as a member of the Board of Directors.
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MR. MARMON: You mentioned that you got involved with the Obama Administration.
Why don’t you talk about that?
JUDGE BURNETT: In connection with the Obama Administration, the Congressional Black
Caucus, I’m told by reliable sources, recommended me to Obama to be the
Director of the Office of National Drug Control Policy. I was told that
President Obama indicated that I had such wide experience, he did not
want to pigeon hole me on drug policy and that he wanted to use me
across the entire operation of the federal government. I want to use him
across the entire operation of the United States government.
Consequently, as a result of that, I have had calls from Valerie Jarrett on
content of speeches he would make and have been invited to the White
House to consult with staff on a number of matters on sentencing matters
and criminal law issues.
In 2010 I was invited to the White House to be next to his chief of
staff, his advisor, on whether to sign the bill that reduced the disparity
between crack cocaine and powder cocaine or insist on a one-on-one
parity, and I advised and sat next to the chief of staff during the advisory
committee to advise whether he should even sign the bill which came the
Fair Sentencing Act of 2010.
On other instances, I received calls we want you at the White
House to be part of an advisory meeting on this issue or that issue. In
2014, I received a White House award from the Obama Administration as
one of the top ten experts in the nation on substance abuse in the country.
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I recall one instance I was in Hawaii and was speaking at a
conference of National Medical Association. At 9:00 a.m.in the morning,
I get a call from the White House and said the President wanted me to be
with him at a program here in Washington at 3:00 p.m. that afternoon. I
said I’m in Hawaii right now, and even if a private plane was here, you
couldn’t get me there by 3:00 p.m. Washington, D.C. time. When I did
return, I went from Hawaii to Michigan where I was a keynote speaker at
a Michigan state drug professional organization, and from there, I went to
Florida for a meeting. So I had three trips lined up back to back without
returning home. That was my relationship with the Obama
Administration. And indeed, in some instances when they were making
reports to Congress, they would run a draft of the report by me for me to
flag any issues on which they should be focusing on specifically.
Ironically, as life would have it, serendipity, my oldest son, Arthur
Burnett II, was a student at Princeton University when Michelle Robinson
came to Princeton as a freshman. My older son was assigned as her big
brother at Princeton. My second son, Darryl Lawford Burnett, was a
professor at the University of Maryland in Public Health combating the
drug crisis it had following the death of Lenny Bias. He took a sabbatical
to go on leave to write his thesis for a Ph.D. degree, and in that capacity
ended up working with a gentleman named Danny Davis, who was then an
Alderman in Chicago before being elected to Congress. My son on
sabbatical ended up being the Program Manager while on sabbatical for
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the National Association of Community Health Centers and was an aide to
Alderman Danny Davis, who was campaign manager for Barack Obama
when he ran to become a state Senator. As a result Darryl too had contact
with Barack Obama. So both of my sons have had contact with the
Obama family.
