A federal appeals court on Friday rejected disgraced former Suffolk County police chief James Burke’s bid to vacate his 2016 corruption conviction based on a claim that the trial judge should have recused himself because of out-of-court comments about the case.
Burke pleaded guilty in 2016 to beating a prisoner who had broken into his car and orchestrating a cover-up. He was sentenced to 46 months in prison by Central Islip U.S. District Judge Leonard Wexler, and was released to a halfway house in December.
His appeal focused on a sealed letter that prosecutors provided to Wexler and defense lawyers on Feb. 22, 2016, four days before Burke’s guilty plea, revealing that the judge — now deceased — had made comments about the investigation that led to Burke’s arrest.
In their Friday ruling, a three-judge panel of the Second U.S. Circuit Court of Appeals said Burke’s lawyers never objected or moved to disqualify Wexler in 2016, and there were no facts in the letter that indicated the judge had a bias for or against Burke that would have required him to recuse on his own.
“Given Burke’s failure to timely move for recusal at any point during the lengthy period this matter remained pending before Judge Wexler after Burke was in receipt of the Feb. 22 letter, his … challenge has been waived,” the judges wrote.
The judges said in their ruling that the letter reporting Wexler’s remarks will be unsealed.
During oral arguments this week, a prosecutor said the letter related “innocuous statements, perhaps careless, things he shouldn't have been speaking about outside of court” but “nothing … that reflects any bias, hostility or prejudice in any way towards Mr. Burke."
The 46-month sentence Wexler imposed was more than Burke wanted, but less than the government requested. Although Burke has served his prison time, the judge also imposed a sentence of three years of post-release court supervision.
During oral arguments on the appeal, Burke’s lawyer said he wanted the “option” of trying to withdraw his guilty plea, but stopped short of saying he would withdraw it, which could potentially open him up to a longer sentence.
Since Burke’s conviction, federal investigations into law enforcement in Suffolk County have continued, including pending charges filed in 2017 against former district attorney Thomas Spota for trying to obstruct the investigation of Burke.
The pending appeal, legal experts said, would have complicated any effort by prosecutors to subpoena Burke in that case.
Clara Kalhous, a lawyer for Burke, declined to comment Friday on the ruling. “We are reviewing the decision and have not made any plans concerning future litigation at this time,” she said.