Church yard fist fight

A church yard fist fight doesn’t happen often, but this is one of my favorite prosecution stories. Judge Buster McConnell was on the bench. It was a routine “plea and bond day” where only agreed-upon pleas were heard by the court and contested bond hearings were held. It’s a staple of the court process.

Buster had a policy that when something sounded unusual, he’d ask the assistant district attorney if they had discussed it with me. This particular morning I was in the courtroom but I was discussing another case at the time when I heard Buster ask if the ADA had cleared it with me. The ADA said no, she didn’t have to. 

I looked up and motioned for her to come to the table where I asked her what was going on. She protested that it was an agreed deal, and I said I wanted to hear the deal.

Sam and Dave were best friends. Sam was married and Dave was newly divorced. Sam suspected his wife was stepping out, so one Sunday evening when his wife feigned illness, he went to their church alone, but not really. Instead he watched as his friend Dave picked up his wife and took her to Dave’s church! That’s an open-minded church.

There was a confrontation in the church yard and the guys were rolling around, exchanging blows in front of many onlookers. That’s when Sam said, “I’m going to kill you.” Sam was arrested. 

The plea offer was for Terroristic Threats, probation, first offender, etc. Not a bad plea offer on most terroristic threat cases. But this wasn’t a normal case.

I told my then-young ADA that she needed to do a pre-trial diversion offer, meaning the case is effectively dismissed. “But Kelly, he threatened to kill him!”

I explained that this is the South. When your wife’s paramour is engaged in fisticuffs with you as you are rolling around on the ground, you are not exchanging pleasantries. Frustrated, but following orders, she changed it to a pre-trial offer and Buster signed off on the deal.

I don’t know what happened in that marriage, but 30 years later it still sticks out in my mind. A general observation about prosecutors, which will get a lot of protests: I think attorneys who have practiced general law make for better prosecutors. Sam didn’t need a felony on his record for defending his marriage in a fistfight. 

We don’t pay enough to attract seasoned attorneys, so young attorneys become public service attorneys. They are legally competent, just not terribly experienced in life. Which is why Judge McConnell had his policy.

Kelly Burke was born in Knoxville where he spent his younger years, followed by high school years in Atlanta where he graduated from Georgia Tech, and Mercer Law School. He has been in private practice, a magistrate judge, and an elected district attorney. He writes about the law, politics, music, and Ireland. He and his wife enjoy gardening, playing with their Lagotto Ramanolo named George Harrison, and spending time with their grandchildren. To see this column or Kelly’s archives, visit www.kellyrburke.com. You can email Kelly at dakellyburke@gmail.com.