On Friday, December 2, 2022, the Special Court of Review of the Supreme Court of Texas dismissed the State Commission on Judicial Conduct’s public admonition of Robert D. Burns, III, then Judge of the Dallas County Criminal County at Law No. 1, Dallas. The case is styled as ‘In Re Honorable Robert D. Burns, III’ with case #CJC No. 20-1561.

The public admonition of Burns stemmed from the comments that Burns made while sentencing a defendant at the end of a 2018 criminal trial over which Burns presided. After the jury entered its verdict finding the defendant, Charles Wayne Phifer, guilty of capital murder in the death of his girlfriend’s four-year-old daughter in March 2016, Burns made the following comments:

“Mr. Phifer, in 28 years practicing criminal law and handling hundreds of murder cases. I thought I’d seen it all, and I’ve seen some pretty bad stuff. I think this is the worst case that I’ve ever seen. What you did was unfathomable, inhuman, and savage. You and Jeri [the child’s mother] did monstrous things to that little girl. Life in prison seems insufficient. Hanging a little girl in a closet is savage. You should die in a locked closet just – if TDC had one, but they don’t have one for you, unfortunately. Life in prison doesn’t seem like enough for you, but nonetheless, that’s the punishment you’re getting.”

In January 2022, the State Commission on Judicial Conduct (“the Commission”) initiated its investigation against Judge Burns. The proceedings ended with the commission’s issuance of a public admonition against Burns.

The Commission set forth two charges of judicial misconduct against Judge Burns, as follows:

“Charge I – Judge Burns’ comments to Defendant, Charles Wayne Phifer, that he “should die in a locked closet,”, constituted a willful failure to treat Phifer with the patience, dignity, and courtesy a judge owes to all those with whom he deals in an official capacity.

Charge II – Judge Burns’ comments to Defendant Charles Wayne Phifer, that he should die in a locked closet,” constituted willful conduct that is clearly inconsistent with the proper performance of his duties, and/or that cast public discredit upon the judiciary or the administration of justice, . . .”

Judge Burns was alleged to have willfully violated either Canon 3(B)(4) of the Texas Code of Judicial Conduct or Article V, Section 1-(a)6)(A) of the Texas Constitution, which respectively states:

A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity, and should require similar conduct of lawyers, and of staff, court officials, and others subject to the judge’s direction and control.

Willful or persistent conduct that is clearly inconsistent with the proper performance of his duties, and/or that cast public discredit upon the judiciary or the administration of justice.

Judge Burns sought a review of the Commission’s public admonition and requested the appointment of a special court of review to hear and determine this matter.

At the trial de novo, the Commission called Judge Burns as its sole witness. The Commission mainly focused on the testimony from Judge Burns that he should not have made the comment and Judge Burns’s opinion that trial judges throughout the state of Texas made somewhat “similar” statements when sentencing criminal defendants.

The filing states:

‘In his direct testimony, Judge Burns explained that he made the unplanned and spontaneous comment after a week-long trial, which he acknowledged took an emotional toll on him given the horrendous details of how the child-victim had died. In fact, Judge Burns recounted that he found the Phifer case to be the most emotionally impactful case of his entire career, which included 16years practicing criminal law as both a defense attorney and prosecutor, 12 years as a criminal trial judge, and further included many “high profile” cases.’

The filing continues:

‘Judge Burns credibly testified that he did not intend to make any comments to Phifer at sentencing, explaining that his usual practice is to only make comments to defendants who are youthful or are receiving probation to guide them in the future. Judge Burns recalled, however, that after the jury delivered its verdict and was polled, half of the jurors were sobbing and the other half were sullen. He testified that he then made his unplanned comments to the jurors—rather than to Phifer—to explain to them why Phifer was only receiving a life sentence in an attempt to “make the jury feel a little bit better[.]” ‘

The filing additionally notes:

‘Next, upon uttering the phrase, “You should die in a locked closet,” Judge Burns immediately recognized his error. Judge Burns testified that he attempted to “modify” or “correct” the statement by adding that the Texas Department of Corrections would not actually treat Phiferthat way, as it had no such “locked closet.”

In addition, the record demonstrates that the judge made his comments in a calm and even tone of voice. He did not raise his voice to Phifer or speak to him in an angry or aggressive manner. The audio clip of his comments that he introduced at the trial de novo confirmed that his tone was subdued throughout the sentencing.’

The Special Review Court, in ruling against the commission stated in the Judgment:

“Although we recognize that Judge Burns’s comment was intemperate and regrettable, we find that it was an isolated and unplanned statement that was not intended to degrade the defendant. At best, the comment reflected a momentary “error of judgment” rather than gross indifference, intentionality, or moral turpitude that would rise to the level of a sanctionable Canon 3(B)(4)violation.”

Based on the foregoing facts and discussions, the Special Court of Review concluded in favor of Judge Burns.

The disposition reads:

“We find that the Commission failed to carry its burden of establishing by a preponderance of evidence that Judge Burns engaged in any willful or persistent conduct in violation of either Canon 3(B)(4) or the Texas Constitution. We therefore find Judge Burns not guilty of both charges and dismiss the Commission’s Public Admonition.”

As of today, Judge Robert D. Burns, III is the Chief Justice of the Fifth Court of Appeals. He earned a law degree from Southern Methodist University Dedman School of Law in 1990. Judge Burns’ profile can be found online at this link.

A copy of the original filing can be found here.