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Paul Butler tells this story:
He was prosecuting a standard “dropsy” case, not much different from the countless others he argued in D.C. Superior Court in 1990. The defendant, a black man in his early 20s, was charged with selling crack. Police testified that when they closed in to arrest him, he dropped his little glassine bags of dope onto the sidewalk and ran.
With steely coolness, Butler delivered a strong closing argument. The cops’ story was consistent, he told the jury; the defendant’s story wasn’t. As usual, the judge instructed the jurors not to consider penalty or punishment. Butler watched them file into the jury room, confident they’d send the two-bit perp to prison.
Too confident. A few hours later, the jury foreman pronounced the defendant not guilty.
Butler was floored. He’d never lost a jury case in D.C. Superior Court, and this case had looked open-and-shut, an easy call. He didn’t understand the verdict. He didn’t like it. And he didn’t want to lose again, to let another punk loose on the streets. He stepped out of the courtroom looking for answers.
As the jurors left the cloakroom, he ambushed them, asking each of the 12 to explain the verdict. Eleven refused. One complied. She was a woman in her early 50s, the only white on the panel. Standing in the cavernous courthouse hallway, looking up at the imposing black prosecutor, she admitted that she knew the kid was guilty. Everyone on the jury knew he was guilty, she said. But we didn’t believe he should go to prison. He’s so young.
The jury had nullified the case—that is, they’d freed a man they believed to be guilty, ignoring the law, the judge’s instructions, and their oaths as jurors. Butler had heard of mutinous juries. In the training session at the U.S. Attorney’s office, old hands warned rookies like him that they could expect to lose many cases, no matter how clear-cut, because a black jury would sometimes refuse to convict a black man. But even that warning hadn’t prepared Butler for watching a dope dealer walk because the jury didn’t have the heart to put him away.
This juror didn’t say that she voted to acquit because the defendant was black, and Butler couldn’t know for sure what the other jurors had thought. But he suspected that race, not youth, was the sticking point, and that suspicion haunted him.
Butler had seen his stint in D.C. Superior Court as a stepping stone, a way to acquire trial experience quickly so he could ascend to higher ground in the U.S. Attorney’s office. He was proud of his work. In six months, he prosecuted around a hundred misdemeanors, mainly drug and gun offenses, mainly committed by black males. His conviction rate was the highest in his department. And in every case, he believed that the defendant was guilty.
But in the months and years after that trial, his self-righteousness waned. He lost moral satisfaction in his job. He’d become the Head Negro In Charge, a cog in a machine that seemed to exist almost exclusively to send black men to prison. What he was doing was wrong, he decided. The jury had been right.
Tonight, in front of the camera, John McLaughlin looks every inch the Powerful White Man, a formulator of the conventional wisdom. His yellow hair sports the side part and dull cut favored by Washington opinion makers. His suit is styleless, impossible to remember. His topic is impossible to forget. Tonight he’s talking about the O.J. Simpson verdict.
McLaughlin quickly establishes the bona fides of the evening’s guests. As snapshots fill the screen, he jackhammers an overview of Paul Butler’s life. PBS viewers see a photo of a goggle-eyed baby; they hear that he was born in Chicago and is now 34 years of age. A school picture of an Afro’d kid in a suit: Christian, single, politically independent. A tall young man in cap and gown, hugged by a heavyset older man: Yale undergrad, Harvard Law School. A shaven-headed, goateed intellectual in front of rows of books: now a professor of law at George Washington University (GWU).
Halfway through the show, McLaughlin quotes an incendiary passage from Butler’s recent article in the Yale Law Journal. “My goal is the subversion of American criminal justice, at least as it now stands,” reads the talk-show host, eyebrows raised high in disapproval. “Through jury nullification, I want to dismantle the master’s house with the master’s tools.”
The camera cuts to Butler. He too wears a conservative suit, and his smooth scalp reflects the studio lights. His voice is deep, and he speaks slowly, gravely. He looks like a brooding Shakespearean hero as he renders the complexities of his argument into shocking soundbites. “Sometimes,” he scolds McLaughlin, “following justice means going outside the law.”
In his writing and TV appearances, Butler exhorts black jurors to acquit nonviolent black criminals—drug dealers, prostitutes, and burglars—even if they’re clearly and inarguably guilty. The article McLaughlin quotes—“Racially Based Jury Nullification: Black Power in the Criminal Justice System”—was cited in the Wall Street Journal months before its December publication. Thanks to the Simpson trial, the piece entered popular culture even before its academic debut. An excerpt ran in the December Harper’s, and Butler appeared on a slew of network news hours and cable talk shows; Geraldo Rivera based a show on the essay. The furor has yet to die down: In February, 60 Minutes devoted a segment to him.
If Butler didn’t exist, the talking-head shows might have created him. He’s a shameless radical—but one with an Ivy League pedigree and an office in the ivory tower. In his elegant baritone, he lobs phrases such as “black power” and “emancipation” like silky grenades. He is a lawyer who advocates overthrowing the rule of law. He’s the guy Angry White Men have nightmares about.
Which suits Butler fine. As he sees it, black America is living a nightmare. In his writings and on shows like McLaughlin’s, he marshals horrifying statistics. In Baltimore, one study found that 56 percent of African-American males between 18 and 35 were either awaiting trial, in prison, on probation, or on parole. In California, another study found that nearly two-thirds of black males are arrested before they turn 30. Federal stats show that more young black men are in American prisons than in college.
Plain old liberals might locate the problem with racist police officers or racist laws. Butler admits that both exist, but he stakes out a more radical position: He argues that black men really do commit more crimes than white men. The roots of that “ugly truth,” he writes, lie in structural racism: Because black men have fewer opportunities to succeed in American society, more of them turn to crime. Not all do so, of course. But then, “not everyone exposed to a virus will become sick.”
From that radical premise, he moves to an even more radical solution: jury nullification. Since American democracy has failed blacks, he argues, they have no duty to uphold it.
The ramifications of his argument extend far beyond the courts. Butler suggests that when a juror votes to send a black man to prison, that juror often hurts the black community. Prison removes a man from society while he’s incarcerated, and makes it hard for him ever to re-enter. If a black man has hurt no one, Butler argues, his remaining free is clearly better for the black community. Locking up a nonviolent offender yields “too little bang for the buck. Black people have a community that needs building, and children who need rescuing, and as long as a person will not hurt anyone, the community needs him there to help.”
Butler compares racially based jury nullification to the Montgomery bus boycott; he equates nullification with the emancipation of slaves. He is proposing a revolution, and like most revolutionaries, he doesn’t plan past the battle at hand. Never mind that would-be criminals might see nullification as a get-out-of-jail-free card: Butler says he’s “agnostic” on the idea that punishment deters crime. And never mind that jurors would loose criminals onto their own streets. He hopes that the black community would take care of its own: fostering the acquitted criminal’s education, treating his addictions, and if necessary, forcing him to pay child support. The enormous difficulty of absorbing nonviolent criminals lies outside Butler’s narrow legal argument; he leaves others to work out such details.
McLaughlin notes that Butler’s radical stance clashes with his mainstream curriculum vitae. “Your credentials are outstanding,” the host bellows. “You served in the government. You graduated from Harvard….And then you make the point that it’s appropriate for a jury to nullify in some cases, such as when a young black is accused of cocaine trafficking or possession.”
“That’s correct,” says Butler.
“You believe that?”
“I sure do.”
In his office, Butler keeps a file folder of letters generated by his writings and TV appearances. Some writers are supportive; others thoughtfully try to persuade him that he’s mistaken. Still others erupt in fury. After watching Butler on CNBC’s Rivera Live, one man grew so enraged that he didn’t bother to address the professor directly. Instead, he wrote to the president of GWU, demanding to know how a race-baiting extremist could be allowed to shape young minds.
Joseph diGenova, the former U.S. Attorney for the District of Columbia, speaks evenly while discussing jury nullification, but gives no quarter in his analysis. Butler’s plan, says diGenova, “would invite judicial anarchy reminiscent of the Old South in reverse. The law is supposed to be about justice, not about payback.”
Certainly, nullification is already occurring, and has always occurred here and there, in isolated cases. But diGenova especially worries about an organized movement to nullify. “Is it wise to be teaching law students to ask a jury to nullify or to invite jurors to engage in this?” he asks rhetorically.
His answer is a resounding no. “It’s a very slippery slope. If the minority community adapts this strategy, it must remember that it is a minority community. A majority backlash would help no one. It’s very shortsighted, even dangerous.”
Besides, he points out, most black criminals are tried for crimes against other blacks. In such cases, the victim would be hurt twice: once by the criminal, and again by the jury.
Butler’s critics abound in academia as well, although they see him as a vigorous (if wrongheaded) thinker, not a menace to society. Randall Kennedy, a well-known scholar of race and the law, was once Butler’s professor at Harvard Law; now he’s one of Butler’s intellectual sparring partners. “I disagree with him,” says Kennedy on the phone from Cambridge. “But he’s doing what academics are supposed to do: push things, make people think.”
Still, Kennedy has no trouble reeling off a host of reasons why adoption of Butler’s ideas would yield havoc. Butler, he says, wrongly dismisses the danger of “victimless” crimes. “There’s a reason why people in communities cry out to get rid of drug dealers. Drug dealers make a community more vulnerable to people who will stick you up or break into your house.”
Kennedy, who is black, argues that Butler oversimplifies matters of racial politics. “He portrays the criminal justice system as wholly the creature of white people. I’m not a great hawk when it comes to the war on crime; I think there’s a strong argument for decriminalizing drugs. But we live in a democracy, and there’s a strong sentiment for criminalization—and it’s not just among whites.” If laws are racist, then Butler should attack the laws—not the legal system.
Most seriously, Kennedy charges, Butler denies a criminal’s responsibility for his act: “He makes it seem as though crime is not really the criminal’s fault, that a person shouldn’t go to jail. He doesn’t take into account that something distinguishes Person A, who is terribly disadvantaged but does not engage in drug dealing, from Person B, who is also terribly disadvantaged and does. He becomes so deterministic that he annihilates people’s ability to make choices in their lives.”
The law-journal essay in which Butler advocated wide-scale, racially based jury nullification—the one in which he attacks democracy and the rule of law—is dedicated to his mother, Lindi Butler Walton. “She is the reason that [I am] a law professor, hoping to salvage the lives of some desperate people, and not one of those desperate people,” he writes.
A snapshot of Walton is pinned to the corkboard in Butler’s office. The Christmastime photo shows a fit, young-looking woman, a retired third-grade teacher who still lives on Chicago’s South Side. On the telephone, Walton quotes e. e. cummings and obviously relishes the chance to brag about her son. She is as perky as he is grave. His words roll out slowly, each syllable conscious of its weight. Hers rise like bubbles.
“Paul was always serious,” she says. “It’s as if he knew he had a gift and understood that at an early age.” He was born on Jan. 15, Martin Luther King’s birthday, and in his early teens once predicted that his birthday too would one day be celebrated. She believed him, she says. “He had an aura about him.” She was disappointed when, as a high-school student, he chose Yale; she’d been pushing for Harvard.
If American society attacks black men like a virus, Butler sees his mother as a vaccine. He credits his achievements not to his own talents or moral streak, but to his upbringing. He blames crime not on criminals, but on the world that shaped them. At times, his jury-nullification crusade seems tinged with survivor’s guilt. There, but for the grace of his mother, goes he.
Most of the GWU law students who fill room L401 look as though they’ve escaped from the J. Crew catalog. They are casually but expensively dressed. Their handknit sweaters display just the right touch of careless style. Their haircuts bespeak youth, money, and taste.
The class is Criminal Procedure, and the auditorium’s seats are filled, partly because of Butler’s star power and his reputation as a prof on the way up. Butler has never discussed his views on racially based jury nullification in this class, but some of these students have seen him on CNN or have read his post-O.J. editorial in the Washington Post. None could help noticing the CBS camera that a few weeks before roamed the auditorium.
Butler lives up to his radical-chic rep. On the first day of this class, by way of introducing himself, he admitted that he’d broken laws (marijuana possession while he was in college, he specifies later). And he produced a boom box to play what he termed an “editorial”: N.W.A’s “Fuck Tha Police.” Such minor transgressions of law-school decorum are heady stuff, especially for an untenured professor.
But the main reason the students claim their seats this February afternoon is that Butler is a stickler for attendance and holds them ferociously responsible for class preparation. Today’s subject is Terry v. Ohio, which concerns the police right to stop and frisk a suspect.
Precisely at 1:10, when the class is scheduled to start, Butler strides down the amphitheater’s stairs and places his Pepsi on the podium. He quickly assigns students to roles in the case at hand. A genial, dark-haired young man will play Officer Martin McFadden, a 39-year veteran of the Cleveland Police Department. Three other students are enlisted as the trio of suspects. The one with the orange down jacket will be Terry.
From the back of the room, Butler directs “McFadden” and the three “suspects” to enact the scene. The area to the left of the blackboard, Butler says, will serve as the street where McFadden approached the trio; the area in front will be the store in which he searched them.
The four students stand on the “street” where McFadden grabbed Terry.
“Officer,” Butler says, “why don’t you show us how you did that?”
“McFadden” reaches for “Terry,” pins his arm behind his back, and holds him like a shield to ward off a possible attack from the other two suspects. Pantomiming a gun, the “cop” commands the “suspects” to accompany him back to the blackboard “store.”
“What did you say?” asks Butler.
“Assume the position.”
“Did you say it in a wimpy tone like that?”
“McFadden” barks: “Assume the position!”
The trio turn away from the class and place their hands on the blackboard. Butler asks “McFadden” to demonstrate his search. He lightly brushes each suspect.
“You wouldn’t have found a gun if you patted them down like that,” says Butler. “Show us.”
“McFadden” tries again, patting the nearest suspect’s jacket a half dozen times.
“How long did you pat them down?” asks Butler.
“Fifteen or 30 seconds each.”
“That wasn’t 15 seconds. Show us. I’ll time you.”
“McFadden” returns to his task. He checks the suspect’s chest methodically, moving slowly down his sides. Time drags. Butler consults his watch. Someone in the class laughs, uneasy. “McFadden” pats some more. Finally he turns to face the class.
“That was 20 seconds,” says Butler.
The Supreme Court ruled that because the officer reasonably feared for his life, he was justified in searching the defendants, even though they’d committed no crime. The state’s interest outweighed Terry’s right to privacy.
The classroom theatrics guarantee Butler’s students will remember the specifics of when police can legitimately stop a suspect for a search. But he has also exposed the proto-lawyers to the suspect’s point of view—a side that most of them will never know firsthand. In 20 excruciating seconds, Butler has demonstrated the suspect’s loss of dignity, the damage done by a simple search. He has never explicitly mentioned race. But the subject hangs in the air, and he forces the students to breathe it.
The class applauds as “McFadden,” “Terry,” and the other two “suspects” return to their seats. On the chalky blackboard, three ghostly pairs of handprints remain.
Law-journal articles require footnotes, tiny type full of the supras and ibids that lend the weight of precedent and Latin. It is a measure of how far Butler’s jury-nullification thesis lies outside the usual realm of legal reasoning that he turns, for his footnotes, to pop culture. He cites poets, rappers, and newspaper articles. Footnote 76 invokes a New Yorker essay by Henry Louis Gates Jr.
“Blacks—in particular, black men—swap their experiences of police encounters like war stories, and there are few who don’t have more than one story to tell,” writes Gates. He recounts stories by jazzman Wynton Marsalis, novelist Walter Mosley, and sociologist William Julius Wilson.
Butler has his own stories.
When he was 10 years old, he pedaled his Schwinn into an all-white neighborhood. A police car pulled alongside him, and the white cop inside asked Butler whether the bike belonged to him.
Butler replied that it did. And as he sped away, he shot off his mouth. He asked the cop whether his car belonged to him.
Butler expected his mother to be proud of him, proud that he’d stood up for himself in the face of white authority. Instead, she was furious. Didn’t he know what happened to black boys who talked to the police like that?
Years later, after Butler graduated from law school and moved to D.C., he was driving two friends to a cookout. Butler then worked for a well-known defense firm. One of his friends clerked for a federal judge; the other worked for the Federal Aviation Administration. They were all black men, and they all wore shorts and baseball caps.
In the southeast part of Capitol Hill, for no apparent reason, a Park Police car began to follow them. When the cops turned on their lights, Butler pulled over, opened his door, and began to approach the officers.
Remain in the car, one commanded over the mike. Remain in the car. Butler did.
The two officers left their car and walked around Butler’s, peering through the windows at its occupants. They then ordered the three men out. The cops searched the trio, shoving Butler against the little red Mazda.
“It was a classic Terry frisk,” Butler remembers.
The cops found nothing. Butler demanded to know why they’d stopped him, but they gave no reason. Later he made a few phone calls, but after getting nowhere dropped the matter.
Nothing really came of either incident. Butler’s life was not derailed, nor did he then lose faith in law and order: He would still become a prosecutor. But those brushes with the law serve to remind him that the rule of law depends on who is doing the ruling.
In the New Yorker, Gates points out that fame can insulate blacks from the worst of the criminal-justice system: a Spike Lee or an O.J. Simpson will receive treatment very different from what a no-name black man will get. Fame, of course, adheres only to a very few blacks, and Butler isn’t among them. Although he’s already claimed a small share of the limelight, it’s highly unlikely that his name-recognition will ever match that of a middling professional athlete. An appearance on 60 Minutes doesn’t count for much on the street. To cops, Butler is just another black man. And he knows it.
While CBS was filming that segment, grizzled interviewer Mike Wallace said that Butler reminded him of Malcolm X. The comparison flattered Butler. He opens his Yale Law Journal article by quoting a speech Malcolm delivered at Harvard in 1964: “What is logical to the oppressor isn’t logical to the oppressed….There just has to be a new system of reason and logic devised by us who are at the bottom, if we want to get some results in this struggle that is called ‘the Negro revolution.’”
But it’s hard to see Butler as “the oppressed,” as one of those “who are at the bottom.” He graduated from two of the most elite schools in the nation and has aired his ideas in both the mainstream and intellectual media. At GWU, the overwhelming majority of his students and colleagues are white. His apartment is in Mount Pleasant, one of D.C.’s few integrated neighborhoods. He quotes Malcolm X, but he lives Martin Luther King.
Occasionally Butler hints that he staked out a radical position not because he embraces it wholeheartedly but as a kind of bargaining chip, a way of tugging public discourse leftward. In one footnote, he writes that he’d be amenable to a “more democratic reshaping” of his jury-nullification idea, “perhaps by some representative organization of African-Americans.” He even offers an example of the sort of compromise he’d accept: endorsing jury nullification in the cases of drug possession but not of dealing. In another footnote, he refers in passing to racially based jury nullification as “my modest proposal.” Intentional or not, the Swiftian echo rings true: Butler is, after all, championing terrible measures to right unendurable wrongs.
Whether or not Butler sees jury nullification as a stratagem rather than an end in itself, he is budging public discourse. He counts his appearance on CNBC’s Rivera Live as one of his greatest victories. During that segment, Daryl Gates—the former head of the Los Angeles Police Department, and to many blacks the embodiment of racism—phoned in. A photo of Gates’ pinched face appeared at the bottom of the screen, superimposed over a live shot of Geraldo, then Butler, while Gates verbally attacked the O.J. verdict, “the professor,” and nullification in general.
The criminal-justice system, Gates complained, can’t bear the burden it’s expected to shoulder. “We have a society that’s really having a great deal of difficulty trying to deal with all kinds of societal problems, and they’ve heaped it on the police. They’ve dumped it on the police. And they want the police to solve all these problems.”
Butler blinked rapidly. Daryl Gates—Daryl Gates!—was telling the TV audience that law enforcement can’t solve America’s problems of race and culture. For a moment, black America and white America were discussing the same thorny problem, admitting that prisons and cops are not enough, agreeing that crime should be stopped before it starts. For a tiny, televised moment, Paul Butler tasted victory.CP
Research assistance by Eric Friedman.
Art accompanying story in the printed newspaper is not available in this archive: Darrow Montgomery.