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One Angry ManPaul Butler Wants Black Jurors to Put Loyalty to Race Above Loyalty to the Law
By Patricia Cohen
Paul Butler says he lost just one trial as an assistant U.S. attorney.
It was a classic "dropsy" -- the dealer catches sight of the cops, drops the bag of dope and runs. This time, the kid claimed the police set him up and then beat him.
"I destroyed his case," Butler says matter-of-factly. Butler is proud of his conviction rate during a six-month assignment as a prosecutor in 1990. At a trial's start, he would unfold his 6-foot-3 frame from the chair, turn his brown oval face toward the jury box and announce, "My name is Paul Butler and I represent the United States of America," nudging the syllables of the last few words for emphasis.
"The African American jurors, the older women in particular, would just beam," Butler says in his rich bass, as if they were thinking, " `You go, boy, you represent the United States of America.' "
So when the foreman in the dropsy case stood and pronounced the black defendant "not guilty," Butler was shocked. All 10 black jurors refused to speak to him after the verdict, but one white juror finally admitted that the others talked her into letting the kid off.
Butler had often heard colleagues complain of black jurors refusing to send black defendants to prison despite indisputable guilt; it was a staple of a prosecutor's training. But when it happened to him, he was indignant. "I was angry. . . . I win all my cases."
Now, from his fourth-floor office at George Washington University Law School, Paul Butler, 36, has become the leading spokesman for "jury nullification," urging African American jurors to ignore rock-solid evidence of guilt and set nonviolent black defendants free.
In the backwash of O.J. Simpson's acquittal, Butler's calls to put loyalty to race above loyalty to law have fueled anxieties about the nation's trial system. While fear of renegade jurors has prodded some state legislatures to consider abandoning unanimous jury verdicts, a federal appeals court last week declared that judges have a duty to prevent nullification. In the District, some judges have started issuing what's become known as an "anti-Butler" warning to jurors; a New York Times editorial this week chided Butler, and angry GW alumni have demanded -- unsuccessfully -- that he be fired.
"I do want to subvert the criminal justice system," Butler declares unapologetically. A system that treats black crack smokers more harshly than whites who snort powdered cocaine doesn't deserve respect, he says.
What seems remarkable, however, is not simply that someone is advocating nullification, but that this former prosecutor, this Justice Department veteran, this product of the Establishment, is its preeminent champion.
How did Paul Butler move from there to here?
"I think Paul's law review article grew out of his experience at the U.S. Attorney's Office," says Glenn Ivey, a friend of Butler's since Harvard Law School and a former prosecutor who now works on Capitol Hill. "In Washington, D.C., all the defendants you see are pretty much black, and you're locking them up mainly on drug violations."
But back then, Butler says, sending black men to jail didn't trouble him. He was depressed by statistics that showed 42 percent of African American men in the District of Columbia were under criminal-justice supervision, but he continued to have faith in the process.
"If I were thoughtful, I would have thought about the relationship between poverty and black crime," Butler says of his prosecuting days. "But that was too expensive for me as a black man. I would have had to leave the office."
No, says Butler, there was no lightning flash of insight, no crystalline epiphany. His championing of jury nullification came as a gradual peeling off of rationalizations like the leaves on an artichoke.
His friends were the first to start picking at the outer layers. They teased him when he took a high-paying job at the tony firm of Williams & Connolly in 1987, the only black associate out of about 120 lawyers. ("Paul used to call meetings of the black associates and sit there in his office by himself," says colleague Marc Srere, remembering Butler's piquant joking.) Butler, as if trying to convince himself once again, ticks off the reasons he joined the firm: the $50,000 in school loans to repay, the top-notch litigation experience. Still, the accusation that he had sold out by representing rich corporate clients stung.
A desire to move "closer to the good guys" pushed him to join the Justice Department's public corruption unit in 1990. As preparation, he was first assigned for six months to the U.S. Attorney's Office to gain trial experience. The courtroom competition, the public performance -- Butler loved it, even if it meant locking up black kid after black kid. He was the government's "hired gun" and he was bent on winning.
But his friend Odeana Neal insisted that he was still on the wrong side. Neal, now an associate professor at the University of Baltimore law school, gathered once a month with 10 or so African American friends for dinner and discussion, first at Harvard and then in Washington. Like a Greek chorus, the group provided running commentary on everyone's life. "It was troubling to me that so many of us had chosen [to be prosecutors] and I thought they had chosen it because it was prestigious and afforded a decent amount of money," Neal says. "We have an obligation to do good by the rest of the community."
Some of the prosecutors, like Glenn Ivey, fiercely disagreed with the idea that they weren't serving their own people. Protecting African Americans from drug dealers was doing good, he argued. But Neal remembers that Butler, normally voluble, grew contemplative. The discussions cut deeply. After a while the evenings became so rancorous the topic was banned from discussion.
What replaced it was the Marion Barry trial. Despite seeing the crack pipe, the white rock of crack cocaine and the videotape of D.C.'s mayor smoking, a handful of the black jurors refused to convict him on 13 of 14 drug counts. To Butler's surprise, a few black assistant U.S. attorneys privately celebrated. Barry had been entrapped because he was a powerful black man, they believed.
If the daily task of prosecuting black drug users barely affected Butler, the Barry case hit him like a stack of law books. "It made me appreciate the subversiveness of the little people, these African American jurors," Butler says, still marveling at the audacity of the secretaries, clerks and assistants who filled the jury box. "The U.S. Attorney's Office gave them Barry on a platter to fry. . . . And they refused to convict."
The jury's insurgency was less troubling than Barry's personal victory. At the same moment Butler was scrutinizing his own responsibilities as an African American, here was Barry, who, Butler believed, had flagrantly let blacks down. "You have to conduct yourself in the best way, not to bring disfavor on your people. If it applies to a lawyer like me, then what about the mayor?" Butler says. "I felt betrayed."
So if Butler had been on this nonviolent drug offender's jury, would he have voted guilty or not guilty?
Butler pauses, fiddling with the paper clips in his desk drawer: "I don't know. I don't know."
Birth of a Notion
Butler liked the high-powered public corruption unit (and the fact that most of the defendants were white), but he had trouble seeing himself as a career prosecutor. When he heard of a teaching opening at the George Washington University law school, he applied.
As part of the interview process, he delivered a 20-minute lecture to the faculty. His subject was the Barry trial -- how every move, from the appearance of Louis Farrakhan to the mayor's charge of entrapment, was a calculated attempt by the defense to play the race card.
Butler got the job and began to expand the lecture into a publishable article. He'd already seen how black criminal defendants and their lawyers tried to send a message to black jurors. Now for the next question: How would those jurors respond?
"We're talking about criminals," Butler explains, "so that the idea that law-abiding people would identify . . . with them in some way is just fascinating."
Critical race theory offered an explanation. The decade-old academic movement essentially argues that colorblindness is an illusion; everything we see or do -- including the laws we pass -- is a function of our race.
At the same time, Butler was preparing to teach a course in criminal law and began reviewing the classic justifications for punishments. "You never think about that when you're practicing," he says. "Why punish" is the traditional lecture the first day of class. Why punish black men for drug crimes, he asked himself.
He concluded that retribution has no place in what he had come to believe is a racist justice system, citing a Sentencing Project study that concluded African Americans receive three-quarters of drug-related prison sentences even though they make up only 13 percent of the nation's regular drug users.
"Criminal conduct among African Americans is often a predictable reaction to oppression," he wrote in the Yale Law Journal in November 1995. "For pragmatic and political reasons, the black community is better off when some nonviolent lawbreakers remain in the community rather than go to prison." Let African Americans decide instead of the white-controlled criminal justice process.
Butler was referring primarily to victimless crimes, and not to violent ones, such as murder or rape. In robberies of the wealthy, nullification is an option, he wrote. Though the theft is "clearly `wrong' " and the race or class of the victim "irrelevant," it makes political sense to nullify: "If the rich cannot rely on criminal law for the protection of their property . . . perhaps they will focus on correcting the conditions that make others want to steal from them."
More than 100 years ago, the Supreme Court, in a dispute over instructions to the jury in a murder case, recognized that juries had the power to nullify. Abolitionist juries ignored the law to prevent returning runaway slaves to their owners, and white jurors in the Jim Crow South routinely freed white murderers when the victims were black. But Butler pushed the idea further, offering a legal justification for freeing clearly guilty criminals solely because of their race.
Suddenly his incendiary thesis was seen as the explanation for Simpson's acquittal on murder charges a month earlier (even though Butler believes the verdict was based on reasonable doubt and not nullification). Butler was catapulted onto TV and into magazines and newspapers.
He won plaudits from other critical race theorists, some defense attorneys and even a few critics, who praised his intellectual courage in articulating the legal system's dirty little secret -- the one that the trials of Marion Barry, Bronx outlaw Larry Davis and the black men videotaped beating Reginald Denny during the Los Angeles riots suggested.
But while a few viewed Butler as a visionary, several prominent experts called him an arrogant self-promoter, a dangerous subversive or a racist. "Bad public policy, bad law . . . and morally reprehensible," declared Joseph diGenova, former U.S. attorney for the District of Columbia. "Erroneous claims, dubious calculations and destructive sentiments," said Butler's former law professor Randall Kennedy.
Butler was impenitent. "It doesn't matter if a white person understands or agrees with it," he told interviewer Mike Wallace on "60 Minutes". "It's a power that we have, whether you or any other white person likes it or not."
The attention -- negative or not -- was thrilling. Butler had wanted to force a public debate and he had.
But some scholars worried it was too intoxicating. "It's one thing to be controversial, but he's so taken with notoriety," says one law professor familiar with his work. "We live in a time of rather significant racial tension, I don't think you can be cavalier about these ideas or pump them up through the TV cameras."
There is one point Butler openly concedes: that African Americans often want the criminal justice system to respond to drug use in their neighborhoods. He remembers, when living in Mount Pleasant, that a guy several houses down was selling drugs. "I wanted to call the police . . . and then I thought, `You're the last person who should be mad,' but I don't like it in my neighborhood."
Life in Chicago
The U.S. Attorney's Office, the Barry trial, the law school, the TV studios -- maybe those just insulate the heart of Butler's evolution. In order to understand where Paul Butler is now, maybe one also needs to go back to where he started, on the South Side of Chicago. "I didn't know a white person until I was 13 or 14," he says. "I never saw any except on television."
To a reporter preparing to write about him, Butler hands a poem by Nikki Giovanni: "I really hope no white person ever has cause/ To write about me . . . they'll probably talk about my hard childhood/ And never understand that/ All the while I was quite happy."
When Butler writes about himself, he begins with the bicycle. He was 10 years old and pedaling to a shopping mall in an all-white Chicago neighborhood when a police car pulled alongside. A white officer rolled down the window and stuck his head out: "Is that bike yours?"
"Yes," Paul answered. "Is that car yours?" he added before speeding away. When he got home, his mother was furious.
"The police have a license to kill . . . and that's what they do to young black men, so you say `Yes sir' and `No sir,' " says Lindi Butler Walton, remembering the incident. She is a tall, striking woman with gray-streaked hair that falls behind her shoulders in dozens of tiny braids. Her entrance into a room ushers in a current of energy. She settles into a blue-flowered sofa in her house in Mattison, a comfortably middle-class suburban community about 40 minutes outside downtown Chicago.
"I never had a good experience with whites," says Walton, explaining that her son's childhood segregation was "purposeful." Growing up, Paul Butler remembers his mother slipping on a dashiki to march with Martin Luther King Jr. in Marquette Park, and his great-grandmother Mollie Washington warning, "You can't trust any white people."
Walton packs her camera to visit the apartment on Wabash Avenue on the South Side that she and her two children shared with Washington for a couple of years. Walton had dropped out of the University of Illinois when she discovered she was pregnant with Paul during her freshman year and was divorced soon after.
Those tough years are behind her now that she has her college degree, is financially secure and remarried. As the Waltons' mustard-colored Jaguar exits the highway, Lindi's husband, Elmo, clicks the door locks shut. Minutes later, he pulls up across the street from a tan brick apartment building splattered with graffiti. Glass crescents litter the sidewalk. In the first-floor windows of the apartment where they used to live, drooping yellow sheets fill in for curtains. "We didn't live like that," Lindi says after she poses for a snapshot in front of the building. "We were poor, but not poor poor."
From there, Elmo Walton drives to the three-bedroom beige brick bungalow Lindi bought for $18,500 in Princeton Park. At the neighborhood school, the other kids asked Paul if he was from the Caribbean. Because he spoke perfect English, they assumed he was from another country. Teasing and fights were common, but he adds, "The teachers were excellent."
Her children "were going to be educated in black schools by black teachers," says Walton, who unrelentingly preaches education and taught in Chicago's public school system for 25 years. "Nobody understands or cares for you like your own."
Still, Walton wanted her son "to go someplace where he could go to Harvard or Yale" even if that meant putting him in a predominantly white school. So when he reached the ninth grade, she sent Paul to the 150-year-old St. Ignatius prep school, which the legendary Mayor Richard Daley's sons attended.
"White people were a shock," Butler says of his first day at St. Ignatius. That he could even get along with white classmates was something of a surprise.
By the time Butler arrived at Yale, he was used to living easily in a predominantly white world, though he avoided assimilating. At Harvard Law School, he was known as a "race man," working to recruit more minority faculty. Odeana Neal remembers a class in which Prof. Kennedy was explaining how conciliatory the freed slaves were after the Civil War to the whites who once owned them. Butler was astonished. "Paul's first question in that class was, `Didn't the former slaves have access to guns?' "
In explaining his own view of whites, Butler says that by the time he reached college, "I thought maybe white people had changed . . . [from] a time when all white people were white supremacists.
"Now I have white friends who are good people who I trust," he says. His sister is married to a white man, and Butler once lobbied unsuccessfully with his all-black discussion group for a white friend to be allowed to attend.
From those first days behind a desk at St. Ignatius to those first days of lecturing in front of a GW classroom, Butler has struggled to reconcile his family's fearsome stories about whites with his own day-to-day experiences: "I still don't know how to fit it all together," he confesses.
Success and Anger
"It's funny when people talk about Paul being a radical," Odeana Neal says. "If you're poor and uneducated, the stereotypical black, [white people] understand having a different viewpoint, they understand anger. But when you have a similar experience as they do and they have a different perspective, it comes as a shock."
Ellis Cose wrote about the undercurrent of fury that runs under the skin of many middle- and upper-class African Americans in his book "The Rage of the Privileged Class." "I don't know Paul Butler well enough to speak about his individual case," says Cose, who recently edited a book of essays on justice including one by Butler (and who disagrees with his thesis). "But he certainly fits the profile of a lot of people I interviewed" -- successful and tremendously angry.
Butler agrees: "It's the sum total of a lot of trivial slights . . . that are insignificant alone." He remembers, for example, the colleague who mentioned Butler could be a contender for deputy attorney general without considering the AG job itself.
But if it isn't odd that Butler wants to undermine the system that helped produce him, the perception that it's strange is the very reason for his renown. Butler's Harvard degree and prosecutor's bona fides -- those are in part responsible for the remarkable attention his work has received.
And for his continuing success. Butler can be seen opining on CNN, ABC, CNBC and Court TV; he writes a column in Legal Times and rides the legal lecture circuit. This week he's finished another article, for next month's issue of the Colorado Law Review. In it, he argues that affirmative action should be used to correct the disparity in sentencing blacks arrested on drug charges, a proposal that is sure to exasperate supporters of affirmative action. "Either more whites would have to be arrested or fewer African-Americans should be," he writes. "Alternatively, affirmative action might require identical sentences for similar `white' criminal conduct such as powder cocaine use and `black' criminal conduct such as crack cocaine use."
Butler leans back in his chair. Last month the faculty voted to grant him tenure. His intellectual journey is just beginning, he says. "Now I can say what I really think."