A countryman between two lawyers is like a fish between two cats. -- Benjamin Franklin


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by Howard Mintz, 6/20/96

It will be baptism by fire for the Sacramento federal judge assigned to preside over the case of Unabomber suspect Theodore Kaczynski.

U.S. District Judge Garland Burrell Jr., the first African-American federal judge in Sacramento and a man described by his peers as unflappable and methodical, brings a load of civil experience but little criminal trial exposure to the high-profile case against Kaczynski.

As a lawyer, the 48-year-old Burrell's career was almost entirely devoted to civil litigation, one of the only issues to provoke questioning during his confirmation hearing before the Senate Judiciary Committee in 1992.

Even since taking the bench, Burrell has not drawn the more noteworthy federal criminal trials to hit the Sacramento courts in recent years, such as the string of Capitol corruption prosecutions brought by the Sacramento U.S. attorney's office. His decisions in criminal cases have produced nothing of published importance out of the Ninth Circuit U.S. Court of Appeals.

Nevertheless, many Sacramento lawyers say Burrell's patience in the courtroom and tendency toward cautious, slowly-delivered opinions suits him for a case that will draw a crush of attention from the media and legal profession. "I think I'm going to be right, two years down the line, that this person does not have an ego," says Sacramento City Attorney Samuel Jackson, a close friend of Burrell's and one of his former colleagues. "I don't think he'll let anything taint that. He will probably take another briefcase or two home [during this case], but that will be because he wants everything to be airtight."

Burrell drew the Kaczynski assignment after at least two other Sacramento federal judges, Lawrence Karlton and Edward Garcia, recused themselves. Karlton decided to bow out of the case because a close friend owns the building where the Unabomber's latest fatal bombing occurred in 1995, while Garcia recused himself because he does not believe he will be able to devote himself to the time-consuming case once he takes senior status in November.

One top Sacramento lawyer speculated that Garcia, who handled a number of the major Capitol corruption trials, simply does not want the headache of such a controversial case at this stage of his career.

The Sacramento indictment of Kaczynski on Tuesday certainly turned a quick spotlight on Burrell. Fellow Sacramento U.S. District Judge David Levi received so many media calls about Burrell on Wednesday that he has politely declined to discuss his colleague's credentials.

The question now for Burrell is whether he can keep a firm grip on the case and what promises to be a complex lengthy trial down the road, or wind up second-guessed and ridiculed like Lance Ito.

"The only hit he's going to take is his lack of experience," says former Sacramento U.S. District Judge Raul Ramirez. "He's a great guy, compassionate, you couldn't ask for more in a judge. I just hate to see him come under that kind of scrutiny. I don't think he's got a fin, and to swim with the sharks you've got to have a fin."

A Public Sector Lawyer Based on interviews with Sacramento lawyers and the roughly 40 pages of material Burrell submitted to the Senate Judiciary Committee in 1992, the judge brings a strong understanding of government to the bench because of a career centered on the public sector.

In fact, the only hardball question Burrell faced during his confirmation hearing came from Wisconsin Sen. Herbert Kohl, who asked how a lawyer so rooted in representing government could be "sensitive to citizen complaints about misuse of government authority?"

"I am always very sensitive as to how that authority is wielded," Burrell replied. "I grew up in neighborhoods where you had to deal with people of authority and there was some question as to whether or not there was fairness."

Burrell grew up in Los Angeles and eventually got his master's degree in social work in St. Louis before gaining his law degree from California Western School of Law in San Diego. In what would turn out to be his only experience in criminal law, Burrell's first full-time lawyer job came in the Sacramento district attorney's office in 1976, where he worked in the juvenile crimes section and the misdemeanor unit and, for a short time, on preliminary hearings in felony cases.

Burrell then went to the city attorney's office for the first of two stints. He was a deputy city attorney from 1978 to 1979, and a senior deputy again from 1986 to 1990. Jackson, who worked with Burrell through both tenures, labeled his colleague "Nighthawk" because of his relentless work habits. During Burrell's second tour with the city attorney's office, he defended the police department, sued several local adult bookstores under an anti-smut ordinance, and supervised litigation aimed at drug and gang abatement. Burrell, in one of his more high- profile cases, succeeded in 1990 in shutting down a major Sacramento card room suspected of being a site of drug dealing.

In his Senate Judiciary Committee paperwork, Burrell cites his work for the Sacramento police department in crafting strategies to go after crack houses and other drug nuisances as one of his top accomplishments.

The U.S. Attorney's Office Another big chunk of Burrell's career was spent in the Sacramento U.S. attorney's office, where he served exclusively as a civil division lawyer. As a civil lawyer for the federal government, Burrell handled primarily environmental and tort issues, although at one point he successfully defended the Bureau of Alcohol, Tobacco and Firearms in a civil rights case over illegal searches.

Burrell was a civil litigator handling standard government tort cases from 1979 to 1985, but boosted his career when he came back to the office in 1990 after his second stint in the city attorney's office. At that time, he was hired as civil division chief by then-U.S. Attorney David Levi.

Levi, in fact, was considered a strong backer of Burrell's bid for a judgeship in 1992. Burrell headed the 15-lawyer civil division when former Republican Sen. John Seymour's local judicial screening committee recommended him to the Bush administration. Burrell indicates in his Judiciary Committee papers that he also had his hat in the ring for the Sacramento U.S. attorney's job when he was tapped for the bench.

Since becoming a judge, Burrell has done little to attract attention. In one case, he ordered a local school district to permit three Sikh students to carry ceremonial knives to school on religious freedom grounds, a decision affirmed by the Ninth Circuit U.S. Court of Appeals.

The judge also has been reversed for siding with Indian gaming interests in their long-running fight with the California attorney general's office, and briefly handled litigation over the IOUs given to state employees during the budget impasse two years ago.

There is little indication of Burrell's leanings in criminal litigation, but lawyers who know him say he is not an ideologue and is likely to give both federal prosecutors and Kaczynski's defense team plenty of latitude to make their arguments.

"He'll be able to stand up to public scrutiny," says former Sacramento U.S. Attorney George O'Connell. "He's conservative in following legal precedent -- he's going to be very careful. But there is no ideological bent I've ever seen him display."
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Copyright 1996, American Lawyer Media

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