Judge Robert McBurney, Fulton County Superior Court, Atlanta (Photo: John Disney/ ALM)

To say the early months of 2018 were a bit hectic for Judge Robert McBurney is probably an understatement.

McBurney's colleagues selected him in February to take over as chief judge for the state's largest and busiest judicial circuit. Then, in March, he started presiding over the seven-week trial of attorney Claud “Tex” McIver, who was convicted of the murder of his wife, Diane.

“It was definitely a steep learning curve,” said McBurney with smile. “Suffice to say we got off to a little bit of slow start because of all of that.”     

No stranger to high-profile cases, whether as a judge or prosecutor, McBurney said the initial maneuvers for the trial—including moving to a larger courtroom where a cadre of reporters could view and record the proceedings from a nearby outpost—were a bit disconcerting.   

“It takes a little while to adjust, but then after a while it's a trial and you don't notice it,” he said.

McBurney succeeded as Judge Gail Tusan as chief; she served the maximum of two two-year terms allowed under court rules.

Growing up in Oakland, California, and the East Bay Area, McBurney attended Harvard. After graduating with a degree in political economy, he signed on with global management consulting firm McKinsey & Co.

“My first taste of Atlanta was working with McKinsey,” he said. “Their big office was in New York. I wanted to be in a smaller office.”

The company paid for him to return to Harvard and pursue a law degree. He returned to the role of management consultant. But the relentless travel and living out of a suitcase wore on him and his wife.

“In my third year of law school, I worked as a prosecutor in Cambridge, and in the background that experience was floating in my mind,” he said. “Then one day I heard from a friend that this guy named Paul Howard was hiring assistant district attorneys.”

Howard, the Fulton County district attorney, hired McBurney.

Appearing for the Prosecution

“It was a pretty serious about-face from high-dollar management consulting to the largest prosecutor's office in Georgia,” he said. The pay was decent, “but it was not a McKinsey salary, and I was definitely not flying business class and staying at top hotels anymore.”

“But it was fascinating and definitely more meaningful for me,” McBurney said. “I didn't wake up in the morning thinking, 'I've got to add a penny to some company's bottom line.'”

McBurney started out in the precursor to the office's Complaint Room, then was assigned to now-Senior Judge Elizabeth Long's courtroom, working alongside “mentor and trial partner” Brad Malkin, now the chief assistant DA.

Among the cases he handled was that of Elijah Salahuddin, serving four life sentences for the  1995 murders of four men during a card game, and that of Jamil Al-Amin—formerly known as H. Rap Brown—convicted of murdering a Fulton County deputy and wounding another in Atlanta's West End in 2000.

“Al-Amin was the big one,” recalled McBurney, who had left the DA's office for a litigation slot at Dow Lohnes. McBurney was asked to return to help try the case.

McBurney had also applied for a position with the office of then-U.S. Attorney William Duffey, who would later be elevated to the federal bench.

“I stayed there for 10 years. We had a pretty illustrious corps” of AUSAs, McBurney said, including John Horn, who left his position as U.S. attorney to join King & Spalding in March; Michael Brown, who was confirmed to the federal bench in January; Larry Sommerfeld, a cybersecurity expert who left the U.S. Attorney's Office last month to join Alston & Bird; and current U.S. Attorney BJay Pak.

McBurney's biggest case involved the international terrorism investigation into Georgia Tech student Syed Ahmed and co-conspirator Ehsanul Sadequee.

“I got to work with agents in Canada, the UK, Denmark, Bosnia-Herzegovina,” he said. “That was a very interesting case, and in some ways very impactful. … These were pretty frightening guys.”

When Judge Marvin Arrington Sr. announced his retirement in 2012, McBurney's wife urged him to seek the post.    

“I was at the 10-year mark, and she said, 'If you don't apply, I'll apply for you,'” he said.

Appointment to the Bench 

Gov. Nathan Deal tapped McBurney for the job in 2012.

“I'm still new enough to know there's a lot to learn,” McBurney said. “Civil litigation is a much broader universe, a new set of procedures. In criminal cases, there's a motion to suppress, then there's a trial.”

“Had you been in court for my first civil trial, you would have seen the look of horror on my face after opening statements, when I told the plaintiff's attorney, 'You may call your first witness,'” he said.

“He turned on his heel and barked, 'I call John Doe, the defendant!' I dropped my pen and waited for the defense lawyer to jump up and yell, 'Objection!,' I was thinking, 'Oh, no, we just picked a jury, and now we'll have a mistrial.'”

“I now know it's OKfor the plaintiff's lawyer to call the defendant as a witness,” he said with a grin.

Even after six years on the bench, McBurney said he's still not quite used to being the judge when dealing with his former colleagues.   

“These are people I learned from.” McBurney said. If I'm going into a bar meeting or something, it seems strange when they call me 'Judge.' I'm Bob.”

McBurney has been noticed—and drawn criticism—for his practice of allowing jurors to submit their own questions at the close of each witness' testimony, a custom he adapted from U.S. District Judge Reggie Walton in Washington.

Like Walton, McBurney issues index cards to the jurors, and any questions are reviewed by the lawyers, who are given an opportunity to object.

“Sometimes they're as mundane as 'I didn't hear what he said' … one I get frequently is, 'Has [the defendant] done something like this before?' which of course I reject,” McBurney said.

Lawyers sometimes complain the questions impact their trial strategy or threaten to go down a rabbit hole of irrelevant information, but McBurney said the questions are often illuminating.

“The one objection I typically overrule is 'asked and answered,'” he said.      

One series of cases that has vexed McBurney involves allegations that an Atlanta sperm bank donor with mental health and other problems was allowed to father multiple children for women who had had been led to believe he was highly educated and of superior intellect. 

McBurney has dismissed complaints filed by the aggrieved parents on three occasions, ruling that Georgia law prohibits “wrongful birth” actions. In each opinion, he has lamented that the law has not kept pace with technology and—while careful not to discuss the details of the cases—he said he empathizes with the plaintiffs.   

“One role of the judge is to provide redress to those who have been wronged, and it is frustrating when you cannot provide redress,” he said. “And I think it's the judge's duty to bring it to the attention of the higher courts, and to the Legislature. And these cases do seem to fall within that category.”

Asked about a recent incident in which a young defendant with a history of violence was released by a fellow Fulton judge into a rehabilitation program and went on, allegedly, to kill a man in Brookhaven, McBurney—again avoiding the specifics of the case—said an offender's history and the efficacy of any intervention program must be carefully weighed.   

“A takeaway from this recent tragedy is that courts, when considering all of these accountability programs … must take into account what they actually provide versus what they purport to provide,” McBurney said.

'Running' the Fulton Court?  

Asked whether his experience as a business consultant helps in running the state's busiest court, McBurney smiles.

“I've come to learn that I'm not running much at all,” he said. “But there are situations for which the management consulting experience comes in handy, particularly when dealing with the county, case counts, who's been in jail for how long. Had I worked at the State Department, that would have been very helpful, because diplomacy is very important in this role.”

As chief judge, McBurney said he is particularly concerned with an ongoing, end-to-end analysis of the county justice system's mental health procedures.

“When do citizens with mental health issues come into contact with the justice system, where are they getting care, and where do they get it when they exit? That mapping is being done,” he said.

“The next step is putting sufficient money there to get better treatment, better outcomes. That homeless person sleeping in an abandoned house: Is the best solution to lock him up? The data's pretty clear that a significant portion of the inmate population is afflicted with mental illness.

“If we're not treating them, we're just recycling them through the system,” he said.

As to what litigants and lawyers can expect in his courtroom, “they should expect that I will listen respectfully and let them speak their piece, that I will respond appropriately,” he said. “If they're an attorney, they should be prepared to tell me why they're there and what they want me to do.”

“One of my role models is [U.S. District Judge] Richard Story,” he said. “He had this almost magical ability to pronounce a sentence to somebody who was about to go away for a long time, and–even though they certainly didn't like where they were going–they would say 'thank you,' because they'd been treated with respect and dignity. That's very different from how I've seen some judges work.

“No matter how annoying a lawyer may be, no matter how unrepentant a defendant may be, they should always feel like they had an opportunity to be heard,” McBurney said.