Judge Liles Burke, now 48, is one of three Alabama district court nominees put forward by the Trump Administration. Having been a judge since his early thirties, Burke currently serves on the Alabama Court of Criminal Appeals. Burke’s conservative record on and off the bench will likely endear him to Senate Republicans, while raising concerns among Democrats.
Background
Liles Clifton Burke was born in Arab, AL in June 1969. The son of a prominent local attorney, Burke attended public school and graduated from The University of Alabama in 1991. He went on to the University of Alabama Law School, graduating in 1994.
After graduation, Burke returned to Arab to join his father’s firm. While working there, Burke also served as Arab’s Municipal Prosecutor and City Attorney. In 2001, Burke was appointed a Municipal Judge for Arab. In 2006, he was elevated to be a Marshall County District Judge by Republican Governor Bob Riley.
In 2011, Republican Governor Robert Bentley appointed Burke to a seat on the Alabama Court of Criminal Appeals, the chief intermediate court in the state for criminal issues.[1] Burke was elected unapposed to a full term on the court in 2012 and still serves as an associate judge.
History of the Seat
Burke has been nominated for a seat on the U.S. District Court for the Northern District of Alabama. This seat opened on August 31, 2013, when Judge Charles Lynwood Smith moved to senior status.[2] While the seat opened only a year into President Obama’s second term, negotiations between the Administration and Alabama’s Republican senators fell apart and no nomination was ever made to fill the seat.[3] President Trump announced Burke’s nomination to the vacancy on July 13, 2017.[4]
Jurisprudence
Burke’s first judicial position was as a Municipal Judge in Arab, Alabama. In this capacity, Burke handled hearings on misdemeanor and traffic offenses, as well as issuing warrants and handling bond hearings. Upon his elevation to the District Court, Burke handled more serious criminal matters, as well as civil proceedings. In that role, Burke helped set up a family drug court and domestic violence court in Marshall County.[5] During his four year tenure as a District Judge, Burke had only one case overturned by a higher court.[6]
As a judge on the Alabama Court of Criminal Appeals, Burke reviewed appeals from criminal cases brought in Alabama trial courts. As their cases could only be appealed through a writ of certiorari to the Alabama or the United States Supreme Courts, Burke and his colleagues frequently were the final word on criminal law in Alabama. During his tenure, Burke established himself as a part of the court’s conservative mainstream, rarely dissenting or concurring.[7] The following patterns are established in his jurisprudence.
General Affirmance of Death Penalty Convictions
Burke has consistently voted to affirm the imposition of the death penalty,[8] even in circumstances that have led his colleagues to question its application. In Lane v. State of Alabama, Burke affirmed the death penalty against a series of challenges by the defendant.[9] Specifically, Burke rejected arguments that the defendant was mentally retarded, and that violent rap lyrics written by the defendant were unfairly used against him, noting:
“The fact that Lane wrote such lyrics makes it more likely, though not certain, that he held such violent behavior in high esteem. The fact that Lane valued that type of behavior is probative of both his motive and intent in shooting Wright and stealing his vehicle.”[10]
Judge Samuel Welch dissented on both those points, noting that the rap lyrics, written years before the crime, had no probative value in the trial.[11] Further, on the issue of Lane’s mental disability, Welch criticizes the legal standard used by Burke to examine the case, noting:
“I do not believe that the majority’s statement is an accurate statement of the law.”[12]
Burke’s opinion was vacated by the U.S. Supreme Court, which remanded the case back to the Alabama Court of Appeals to be reconsidered in light of Hall v. Florida. On remand, Burke again affirmed the death penalty, over dissents by Welch and Judge J. Elizabeth Kellum.[13]
Similarly, Floyd v. State involved a challenge by a white defendant under Batson v. Kentucky.[24] The defendant argued that his rights were challenged by the prosecutor’s decision to strike 10 out of 11 african american venire members and 12 out of 18 women. Floyd’s initial challenge resulted in a remand by the Court of Criminal Appeals to determine the race-neutral reason for the strikes. When the trial court again ruled against Floyd, the Court of Criminal Appeals affirmed his death sentence on the second appeal. However, the Alabama Supreme Court reversed and sent the case back down to the trial court. On the third appeal, Burke wrote the opinion rejecting the Batson challenge. Burke’s ruling was affirmed by the Alabama Supreme Court,[25] but reversed by the U.S. Supreme Court.[26] On remand, the Alabama Supreme Court reinstated the death penalty against Floyd.[27]
Like in Lane and Floyd, Burke has shown a willingness to re-impose the death penalty where higher courts have reversed previous decisions on the issue.[14] For example, in Wimbley v. State of Alabama, Burke joined a unanimous court in re-affirming the death penalty after it was vacated by the Supreme Court.[15]
Willingness to Consider Sufficiency of the Evidence Arguments
In contrast to his rigid stance on the death penalty, Burke has shown a willingness to overturn convictions based on “sufficiency of the evidence” arguments. “Sufficiency of the evidence” challenges argue that, based on the evidence offered at trial, no reasonable juror would find that the elements of the crime have been proven. During his tenure, Burke has written several opinions overturning convictions based on insufficient evidence.[16]
Burke’s willingness to entertain challenges based on “sufficiency of the evidence” is particularly surprising as trial judges and juries are generally given deference in factual issues, and federal judges from both political parties almost always reject appeals based on the “sufficiency of the evidence.”
Mixed Record on Criminal Procedural Protections
Burke’s record on protecting defendant’s Fourth, Fifth, and Sixth Amendment rights is decidedly mixed. While Burke generally affirms convictions against criminal procedural challenges, he has demonstrated a willingness to side with defendants in some cases.
For example, Burke voted to overturn the conviction of a driver who was pulled over for driving with a cracked windshield.[17] In his majority opinion, Burke noted that, as Alabama law does not specifically prohibit driving with a cracked windshield, the traffic stop was improper and all evidence obtained violates the Fourth Amendment.[18] In contrast, most of Burke’s votes on Fourth Amendment issues have been against the defendant.[19] Notably, Burke wrote for the majority in finding that a bag of narcotics recovered from a defendant’s pocket was in “plain view” and as such did not violate the Fourth Amendment.[20] Judges Welch and Kellum dissented, pointing out that the police officers could not see the contents of the bag from the defendant’s pocket, merely the “knot” and as such, there was no probable cause to assume that the bag contained contraband.[21]
Similarly, Burke reversed a trial court judge who had found that a juvenile defendant’s waiver of his Miranda rights was not “intelligent and voluntary.”[22] This opinion drew a sharp dissent from Welch, who argued that Burke failed to follow the deferential standard of review for trial court factual findings.[23]
Conservative Rulings on Divisive Issues
In addition to the rulings above, Burke’s votes in two cases involving divisive social issues may draw scrutiny.
Diggs v. State[28] – This case involved Alabama’s “Stand Your Ground” Law. The defendant, charged with manslaughter, argued that he shot the victim in self-defense after the victim fired first. The trial court refused to instruct the jury on self-defense. The Court of Criminal Appeals reversed, finding that the jury should have instructed on both self-defense and the lack of a right to retreat. Burke concurred with the result.
Gilbert v. State[29]– This case involved a constitutional challenge to Alabama’s sexual misconduct law. Specifically, the defendant argued that, in criminalizing a consensual sexual encounter between two men, the law violated Lawrence v. Texas. In writing for the court, Burke rejected this argument. He noted that, even though the statute, on its face, criminalizes consensual “deviate sexual intercourse,” the defendant had not demonstrated that his own conduct was consensual, and as such, did not fall within the bounds of Lawrence. Judge Kellum dissented from this holding.
Political Activity
Burke is a Republican and has run for judicial office on the Republican Party line.[30] In 2012, Burke was re-elected unopposed as a Republican to the Court of Criminal Appeals. In addition, Burke has been fairly active as a donor, including political donations to Rep. Robert Aderholt, and the Alabama Republican Party. Notably, as a sitting judge, Burke donated to Sen. Marco Rubio in 2015.[31]
Twitter Use
Since August 2012, Burke has maintained a Twitter account under the handle @JudgeLilesBurke.[32] While the account has “Judge” in the title, it serves primarily as a personal account. While the vast majority of the posts are innocuous, sharing family photos, his views on sports, and inspirational Bible messages, some posts focus on controversial subjects including religion and politics.
Religion
Burke, who is a committed Christian, frequently tweets and retweets inspirational Bible messages and verses.[33] On occasion, Burke has tweeted his support for the expansion of Christianity. For example, on Dec. 22, 2013, Burke retweeted a message from Pastor Steve Gaines, who said:
“I pray that the Lord will raise up more preachers in 2014 who will preach God’s Word compassionately & passionately with no compromise.”
Similarly, on Sept. 12, 2015, Burke posted an article from Christianity Today under the caption: “Christianity is surging in the heart of Islam.”
Burke has also tweeted messages against Islamic extremism, tweeting on March 31, 2015:
“68 Christian churches burned by Muslim extremists. We must pray for those people of faith who are suffering.”
Similarly, on Feb. 21, 2015, Burke retweeted conservative journalist Sean Davis:
“I believe Obama when he says he’s a Christian. I also believe ISIS when it claims to be Islamic.”
Burke has also tweeted articles criticizing agnosticism,[34] and atheism.[35]
Politics
Burke’s tweets on politics fall into two main categories. The more numerous category of posts details partisan events for the Alabama Republican Party he attended as a judge.[36] The second category of posts are more overtly political. In tweets, Burke has criticized Bernie Sanders,[37] Edward Snowden,[38] and socialism.[39] He also tweeted messages supporting Margaret Thatcher,[40] Ronald Reagan,[41] George H.W. Bush,[42] and Senator Richard Shelby.[43] During the Alabama referendum elections in March 2016, Burke also tweeted messages of support for Amendment 1, which allows the legislature to restructure judicial retirement.
Overall Assessment
Critics of the Trump Administration will find much to dislike about Burke, from his conservative record on the Alabama Court of Criminal Appeals to his active affiliation with the Republican party. Burke’s opinion in Lane, indicating that writing violent rap lyrics is probative of motive and intent to commit crimes, is likely to draw particular criticism.
Burke’s tweets are another source of concern. Alabama’s Canons of Judicial Ethics instruct judges to “avoid impropriety and the appearance of impropriety,” “regulate his extra-judicial activities to minimize the risk of conflict with his judicial duties,” and “refrain from political activity inappropriate to judicial office.” It could be argued that Burke’s tweets on political issues, including his endorsement of Republican candidates and Amendment 1, violate these canons. Burke’s tweets on religious issues do not raise a similar concern, but may draw criticism from those advocating a separation of church and state.
Burke’s defenders may argue that, given Alabama’s system of electing judges through partisan elections, Burke’s campaigning and involvement with the Republican party is inevitable. They will also point out that Burke has frequently supported defendants in non-capital cases, and that his record does not suggest any bias in favor of prosecutors.
With a Republican majority in the Senate, Burke is almost certain to be confirmed. If and when he makes it through the process, he will likely bolster the ranks of conservatives on the Alabama federal bench.
[3] Compare Pema Levy, Jeff Sessions has a History of Blocking Black Judges, Mother Jones, Jan. 9, 2017, http://www.motherjones.com/politics/2017/01/jeff-sessions-blocked-black-judges-alabama/ with Mary Troyan, Judicial Vacancies in Alabama Pile Up, Montgomery Advertiser, April 22, 2015, http://www.montgomeryadvertiser.com/story/news/local/alabama/2015/04/22/judicial-vacancies-alabama-pile/26166537/.
[7] Burke authored concurrences or dissents in less than 20 cases out of the over 300 cases he oversaw.
[8] See, e.g., Johnson v. State, 2015 Ala. Crim. App. LEXIS 3 (Ala. Crim. App. Feb. 6, 2015); ; Thomas v. State, 155 So. 3d 270 (Ala. Crim. App. 2013). But see Smith v. State, 157 So. 3d 1007 (Ala. Crim. App. 2014) (reversing death sentence due to improper admission of polygraph evidence).
[9] See Lane v. State, 169 So. 3d 1076 (Ala. Crim. App. 2013).
[11] See id. at 1143 (Welch, J., dissenting) (“Even if writing rap lyrics about violence established that the songwriter held violent behavior in high esteem, and I do not agree that it does, it is sheer speculation to hold that valuing violent behavior somehow established motive or intent as to the robbery-murder of Wright.”).
[13] See Lane v. State, 2016 Ala. Crim. App. LEXIS 21 (Ala. Crim. App., Apr. 29, 2016).
[14] See, e.g., Russell v. State, 2016 Ala. Crim. App. LEXIS 81 (Ala. Crim. App., Dec. 16, 2016).
[15] See Wimbley v. State, 2016 Ala. Crim. App. LEXIS 83 (Ala. Crim. App., Dec. 16, 2016).
[16] See Caver v. State, 219 So. 3d 1 (Ala. Crim. App. 2016); McClellion v. State, 167 So. 3d 381 (Ala. Crim. App. 2014); Folds v. State, 143 So. 3d 845 (Ala. Crim. App. 2013); Black v. State, 74 So. 3d 1054 (Ala. Crim. App. 2011). But see Evans v. State, 82 So. 3d 766 (Ala. Crim. App. 2011) (affirming conviction against sufficiency of the evidence standards).
[17] JDI v. State, 77 So. 3d 610 (Ala. Crim. App. 2011).
[19] See, e.g., Skipper v. State, 195 So. 3d 1075 (Ala. Crim. App. 2015); Pickering v. State, 194 So. 3d 980 (Ala. Crim. App. 2015); State v. Harris, 159 So. 3d 86 (Ala. Crim. App. 2014).
[20] Nix v. State, 136 So. 3d 1101 (Ala. Crim. App. 2013).
[21] See id. at 1106 (Welch, J., dissenting).
[22] State v. RC, 195 So. 3d 317 (Ala. Crim. App. 2015).
[23] See id. at 326 (Welch, J., dissenting).
[24] Floyd v. State, 190 So. 3d 987 (Ala. Crim. App. 2013).
[25] Floyd v. State, 191 So. 3d 147 (Ala. 2015).
[26] Floyd v. Alabama, 136 S. Ct. 2484 (2016).
[27] Floyd v. State, 2016 Ala. LEXIS 132 (Ala., Nov. 18, 2016).
[28] Diggs v. State, 168 So. 3d 156 (Ala. Crim. App. 2014).
[29] Gilbert v. State, 2016 Ala. Crim. App. LEXIS 15 (March 18, 2016).
[30] Judges are elected in partisan elections in Alabama.
[32] https://twitter.com/judgelilesburke?lang=en
[33] See, e.g., Retweet of David Jeremiah, July 31, 2015.
[34] See Tweet, Jan. 28, 2015 (“Great article by Rabbi Wolpe. ‘Being spiritual is not the same as being religious.’”
[35] See Tweet, Nov. 18, 2014 (“This is a great short read that made my day. ‘How a French Atheist Becomes a Theologian’”).
[36] See, e.g., Tweet, Sept. 3, 2016 (“I greatly enjoyed speaking to the Cullman County Republicans today about Alabama’s Court System. Many old friends.”).
[37] See Retweet of Ben Shapiro, June 6, 2016 (“To be fair, if Sanders understood math, he wouldn’t be a socialist.”).
[38] See Retweet of Ari Fleischer, June 10, 2013 (“Real whistleblowers don’t flee the country.”).
[39] See Tweet, Apr. 16, 2016 (“For those in our country who seem to have forgotten that socialism always ends badly, look no further than this…”).
[40] See Tweet, Jan. 17, 2014 (quoting Margaret Thatcher) (“The facts of life are conservative.”).
[41] See Tweet, Oct. 4, 2014 (“The country I love sure needs another dose of this great man.”).
[42] See Tweet, June 26, 2016 (“I miss President Bush’s leadership and his keen sense of humor.”).
[43] See Tweet, Feb. 1, 2016 (“…Thank you, Senator, for all you do for our state!”).
[44] As a law student at Georgetown, Kelly spent a year as a Work-Study Reference Clerk at the Edward Bennett Williams Law Library.
The Vetting Room 