Judge Burnett has more than a half-century of service in the American Bar Association Criminal Justice Section and Judicial Division and over a quarter century as a member and former chair of the editorial board of this magazine. It is only in recent years that his role as a watchdog on the civil rights movement during the Kennedy administration has come to light (due to the expiration of confidentiality requirements). But Judge Burnett was more than an eyewitness to the quest of African Americans for civil rights. He was a front-line participant, putting his personal and family safety at risk.
Born and raised in highly segregated Spotsylvania County, Virginia, the young Arthur Burnett witnessed Jim Crow firsthand—from attending segregated schools to a guns-drawn encounter with the local police, he pushed on and was driven to excellence. After graduating from high school, he attended Howard University in Washington, DC. It was there that his “Forrest Gump” moments in history began.
Tapped by Thurgood Marshall, a young attorney for the National Association for the Advancement of Colored People (NAACP) to attempt to integrate the University of Virginia Law School, Judge Burnett was primed to deal with possible danger to him and his family. He was one of the first African Americans in the Honors Program of the US Department of Justice and one of the agency’s first African American attorneys. One day after John Fitzgerald Kennedy was sworn in as the 35th president of the United States, Judge Burnett was summoned by Attorney General Robert F. Kennedy to be his confidential “eyes and ears” on the civil rights movement. After serving as a federal prosecutor, Judge Burnett became the first legal advisor to the District of Columbia Metropolitan Police Department and later became the second US Magistrate—and the first African American to hold that post. In that role, he was assigned to Chief Judge John Sirica of the US District Court for the District of Columbia and worked with Judge Sirica, who oversaw the Watergate investigation that led to the resignation of President Richard M. Nixon.
Tapped by President Jimmy Carter to spearhead federal civil service and pension reform, he was reappointed as US Magistrate by President Ronald Reagan, who later nominated him to the District of Columbia Superior Court. Judge Burnett shared his remarkable story at the 2023 annual meeting of the American Bar Association in Denver by fellow Criminal Justice editorial board member and former chair Judge Richard Ginkowski.
You met Thurgood Marshall when you were an undergraduate at Howard University and he was a NAACP lawyer. How did that happen?
The Brown case (Brown v. Board of Education) had come down and I was called to the office of the vice president (of Howard), who was also the former Dean of the Howard Law School. I agreed to become a plaintiff in a case to desegregate the University of Virginia Law School.
How dangerous was that undertaking?
Virginia at that time was massively engaged in active resistance to desegregation. We were warned that the (Ku Klux) Klan had vowed that any Black who tried to go to the University of Virginia would be kidnapped and lynched. I lived under death threats. They had an agreement with the Department of Justice that the moment my name hit the press, I would have two deputy marshals with me 24 hours a day. That was the game plan.
How did that turn out?
The case was settled because the NAACP had limited resources and Thurgood Marshall said that they had to turn their attention to Arkansas, where Gov. (Orval) Faubus said that he wasn’t going to obey Brown v. Board of Education. This led to the Little Rock Nine standoff with the federal government. The NAACP reached a settlement with Virginia, and I wound up at New York University for Law School. I was the only Black student in my classes in the day division. Thurgood (Marshall) wanted me to go to Columbia, but NYU, my second choice, offered me a teaching assistant position, so I turned down Columbia.
And Virginia paid your way at NYU?
Virginia paid for it.
After leaving Howard, you again crossed paths with Thurgood Marshall?
In my third year of law school, he called me to his office to interview me to become his assistant for civil rights, but I had been selected for the Honors Program at the Department of Justice. At that time, there were only three Black attorneys at the Department of Justice. They were doing menial work up until a few months before our meeting. I said now that the Attorney General wants me to come to the Justice Department, I want to make sure that the lady of justice is blind. I turned down Thurgood Marshall.
That was your first stint at the Department of Justice?
I was the fourth Black attorney they hired. Later I was drafted into the Army but then came back.
What happened on January 21, 1961?
This was the second day of the Kennedy administration. Bobby (Attorney General Robert F.) Kennedy called for me and said, “Arthur, I want you to be my special assistant.” I was to be his eyes and ears on the civil rights movement, but he said, “If anyone asks, tell them you’re busy doing work for me but don’t tell them what you’re doing.” People thought I was his “go-fer.”
As part of your duties, were you at the Lincoln Memorial on August 28, 1963, when Dr. Martin Luther King Jr. delivered his “I Have a Dream” speech?
During that week of August 1963, I was the undercover agent on the (National) Mall pretending to be one of Martin Luther King’s followers and I was only a few feet away from him when he made the “I Had a Dream” speech. As Bobby Kennedy’s confidential assistant, I lived that role during the Martin Luther King era. You might say I was a “groupie” but was the liaison directly with Bobby Kennedy and the top leaders of the Justice Department.
And why were you doing this?
Without getting into too much detail, one concern was whether the Communist Party was trying to infiltrate the civil rights movement and trying to cause a revolution in this country. Another reason was to make sure that law enforcement was not “anti-civil rights” and violating the constitutional rights of Dr. King and civil rights organizations. I lived in a “no-man’s land” and couldn’t even tell my wife what I was doing. And the FBI was monitoring me, including listening to my telephone conversations.
What were you thinking when Dr. King was saying, “I Have a Dream”?
It was very inspirational, and I kept thinking that I had a dream, too, but I want to make that dream a reality, so I have to be discrete and behind the scene and not tell people what I’m doing and jeopardize my own life and my family.
Fast forward to November 22, 1963—
When Jack (President John F. Kennedy) was shot, Bobby called for me and said, “Arthur, I’m too emotional today. I want you to be with me.”
And when he learned that the president died?
He sat me at a desk and said, “I want you to be the person giving directions to the FBI and to officials in Texas.” He swore me in as Acting Attorney General and from about 12:30 that day until 1 a.m. the next morning I was at his side until he told me to call my wife and go home and get some sleep.
On Sunday morning, November 24, 1963, Lee Harvey Oswald, who was suspected of shooting President Kennedy, was shot in the basement of the Dallas Police Department. That happened on live television. Did you feel that this had an impact on the investigation?
My wife woke me up and said that Jack Ruby had killed Oswald. I wonder, I often wonder, had Jack Ruby not gotten in there and killed him, we would really know a lot more than we know today.
Your work with Attorney General Kennedy led to other special assignments?
He also made me his special assistant on another famous guy named Jimmy Hoffa and organized crime activity. I dealt with cases involving union racketeering and savings and loan scandals. I prosecuted two congressmen for corruption. I worked with US Attorney Joseph Tydings, who later became a US senator and was instrumental in expanding the duties of US magistrates. During the balance of the time that Robert Kennedy was there, I still was liaison with the Criminal Division to keep him advised of all the major cases and other matters of sufficient importance to be brought to his attention.
We hear allegations today that the Department of Justice is pursuing cases for political reasons. In your day, Attorney General Kennedy assigned you to prosecute one of his closest friends.
That was Frank Boykin, a congressman who was a close friend of his father and was “like an uncle” to Bobby Kennedy. I presented the case to the Attorney General, who stood up, tears in his eyes, and told me that “we have to do what we have to do.” I took the lead as Special Assistant US Attorney. It was comparable to what we’re dealing with today—campaign contributions really being bribes but camouflaged. We’re still dealing with that today and there should be a constitutional amendment.
One of your other duties for Attorney General Kennedy was to monitor how law enforcement officials were acting with respect to the civil rights movement and its leaders. Tell us about your own experiences with police that inspired you to pursue racial equity in law enforcement.
The year I graduated from high school at 17, I got a job at Howard Johnson’s as a bus boy from 4:00 to 11:00 at night. I had to wait for my father to pick me up. Shortly after 11:00 I locked up the place and waited on the back stoop. Two police officers drove up. They jumped out, squatted down, and had their guns drawn on me. I said, “Officers, I work here. I’m the bus boy. They left me here to clean up.” They arrested me and put me in the back of the police car. My father showed up, but they locked me in the car and took me over to the manager’s home. He said, “He’s the best n_____ kid I ever had work for me. I want to make him night manager.” But if I made any quick motions or was sassy, I might not be here. That was my first negative racial contact with law enforcement.
When I was at Howard University, I pledged to a fraternity and they had us go out to find old bottles. A classmate’s father, who was a mechanic, let us use his car, but unfortunately the registration wasn’t in it. The police saw us going down alleys looking for bottles at night and took all four of us to the police station. They locked us up until they were able to find out that the car wasn’t stolen.
And when I was at NYU, I saw a white woman step off the curb and into traffic, where she might have been killed or seriously injured. Instinctively I reached out to grab her and pulled her back. A police officer ran up, grabbed me with handcuffs ready to handcuff me, but the woman said, “Officer, what are you doing? This man just saved my life.”
These three negative encounters made me more committed to criminal justice reform.
A few years later, you actually were hired by the District of Columbia Metropolitan Police.
When Walter Washington, a Black man, was mayor, I was hired as the legal advisor to teach police proper procedures and community relations and to assist the chief. I wound up being much like an “in-house lawyer,” helping the police make better cases to ensure that they went after the right people and not the wrong ones. I left about a year later when I was appointed the first African American US Magistrate in 1969.
And you were one of the first US Magistrates as well?
I was, I think, the second, but the first African American.
You were assigned to Chief Judge John Sirica in Washington.
Yes, and Judge Sirica treated me kind of like his senior judicial clerk. He had me review all pretrial matters and make recommendations to him. In the course of looking at pretrial discovery matters, I raised with him an issue of a missing gap in the (White House) tapes and that he should issue an order requiring President Nixon and the Watergate people to produce information concerning how that missing gap of 18 minutes in the tape came about. He did so, and that led to President Nixon’s resignation and the former Speaker of the House, Gerald Ford, becoming the new president of the United States.
That had to be an exciting time for a young US Magistrate?
I don’t know if it was exciting. I believed in equality under the law, not politics, and this must be done. I wrote all kinds of legal memoranda dealing with the relationship between the judiciary and the executive branch of the US government. (Judge) Sirica agreed with me, and the rest is history.
You left to work with civil service and pension reform in the Carter administration, and then President Reagan reappointed you as a US Magistrate and later appointed you as a District of Columbia Superior Court judge.
When I was magistrate, an opening came up for an appointment as a district court judge, and I applied for it. The Republicans were in charge, and Reagan’s attorney general felt there were too many Black district court judges, so I was appointed to the superior court.
There was talk of you possibly being appointed a federal judge or to some other post by President Kennedy. Why didn’t that happen?
I didn’t know about it at the time, but Bobby Kennedy had mentioned me for some cabinet-level position. I was penciled in for Pearl Harbor Day, December 7, 1963, but, as you know, President Kennedy was shot and killed. I got to know the new president, Lyndon Johnson, and worked with him as an advisor on civil rights matters.
You left the active superior court bench in 2004 to become the executive director of the National African American Drug Policy Coalition. What prompted you to do this?
Before that I was chosen to lead a coalition to look at the disparity in penalties relating to crack vs. powdered cocaine. There was a significant disparity—and racial discrimination that affected African Americans. I testified before Congress. I was the leader of the effort to remove the disparity between crack and powdered cocaine. The coalition was formed because of that, and I drew up the charter. The National African American Drug Policy Coalition was formed with that as its number one goal.
Equity in drug enforcement?
Exactly.
Nearly 20 years later—has anything changed?
We still have residual problems and political thinking that crack cocaine is a lot more dangerous, like fentanyl. We still have that problem to overcome. I’m not sure we’ll ever achieve equality where cocaine is treated as cocaine, period. There are still pockets of resistance.
Today, heroin and fentanyl seem to have overtaken cocaine and the opioid crisis overshadows this.
Absolutely.
And the coalition’s main task today is?
The main objective at this point is to get white people, Black people, Asian Americans, all Americans treated alike in the criminal justice system. This is a civil rights issue.
The other big issue is the legalization of marijuana and where that will lead us. Will 12-, 13-, and 14-year-old youngsters be led to more serious drug issues than we’ve had in the past?
Of course, prevention is important. We may not be able to stop everyone—Prohibition didn’t keep people from drinking alcohol—but maybe we can slow it down. We need to work with kids, mentor them, and show them that there is a better way.
“Re-entry” is a chic phrase today. How do we stop punishing drug offenders when they’ve done their time?
That’s a difficult problem. I’ve had people come out of prison and end up being ministers, and you’d never think they had a problem. But there’s a lot of people who get out whose lives are still a mess.
Today we can pinpoint down to even a few blocks the “hot spots” of crime in a community. There’s also research that one of the most significant deterrents to crime is economic investment. One of the coalition’s objectives was to strike partnerships with the business community. Do you think economic investment and jobs can turn challenged people and communities around?
Indeed. I’m working with the Biden administration right now on ways to get more students involved in the STEM fields. We need summer programs to encourage 13-, 14-, 15-, and 16-year-olds not to get involved in drugs and adults to be mentors. We’re looking at colleges and universities setting up two-week summer programs to show these kids a better way through higher education. Show them the way. Demonstrate how important it is to become a scientific researcher or to become a doctor, pharmacist, or any of the other things you can do. We’re asking the HBCUs (historic Black colleges and universities) to get involved. But still we need police in African American communities to treat kids the same as if they were in a middle-class suburb and not to accuse a Black youngster of breaking into a car if he just lost the key. Police officers shouldn’t just make assumptions in “the ’hood.” There are circumstances where police interpret conduct of young Black kids differently and jump to conclusions.
Isn’t that one of the tensions today in many communities of color that are disproportionately victimized by crime where residents want the police to do their jobs, but they also want officers not to infringe on civil rights?
We need to have more police community relations programs where residents and police officers get together and talk about positive activities in the community and these problems as well and don’t jump to conclusions. I had a case before me as a judge where a Black police officer who assaulted a youngster said that he was breaking into something, but a white police officer who saw it testified that it wasn’t like that and the Black officer was later prosecuted for perjury.
One of your “hot button” issues in advocating for equity in criminal justice is eliminating peremptory challenges. Why?
There’s the problem of implicit bias and jumping to conclusions. People who live “in the ’hood” may be misperceived as anti-police, but they may have important insights to add to a jury’s deliberations. This can be true in civil cases, too. England abolished peremptory challenges. So did Canada and Arizona as well. We are monitoring the results there. As it stands, people make assumptions based on how a person is dressed or how they talk that may not be true.
Even if we eliminate peremptory challenges, judges will still have to be careful to identify implicit biases when a prospective juror is challenged for cause. And then there’s the question of whether judges have implicit biases, too.
Critics of eliminating peremptory challenges say that sometimes all they have to work with is a hunch because a biased juror may not explicitly utter “the magic words” required to strike them for cause. What do you say to them?
Let’s monitor what’s happening where they’ve done it and see.
You’ve written that getting rid of peremptory challenges promotes judicial economy, but might not the opposite be true because judges would have to be more aggressive with voir dire to uncover potential biases? Along those lines, might an extensive supplemental juror questionnaire become the norm?
There will be more voir dire work for judges and questionnaires will need to be tailored to help identify biases.
You’re the proud father of five children who are now very accomplished adults. What worries you about the future for today’s children?
I think an area in which we’re very lax is coming up with the best policies we can for liquor and drug controls and youth exposure to positive things as an alternative to experimentation with alcohol and drugs. We need these intercessions with kids as young as five years of age so that they go in the right direction. We need more example setting and mentoring. I’ve been involved with a group called One Hundred Fathers where we try to get fathers to engage with their sons and daughters in positive activities to discourage them from going the wrong way.
You were an eyewitness to so much history, especially as it relates to civil rights. Are you confident of or scared about the future?
We’ll see whether or not we’ll face another civil war and if the country is so divided that people will resort to violence and crime. One of the greatest threats this country has faced since its creation and the Civil War is now. The whole issue of voting rights and political influence is bringing this country to its knees. We’ve got a lot of work to do.
