By Patricia Cohen
Washington Post Staff Writer
Friday, May 30, 1997; Page B01

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 matteroffactly. Butler is
proud of his conviction rate during a sixmonth assignment as a
prosecutor in 1990. At a trials start, he would unfold his
6foot3 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 prosecutors training. But when it
happened to him, he was indignant. "I was angry . . . I win all
my cases."

Now, from his fourthfloor office at George Washington University
Law School, Paul Butler, 36, has become the leading spokesman for
"jury nullification," urging African American jurors to ignore
rocksolid 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 nations 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
"antiButler" 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?

Career Advancement "I think Paul's law review article grew out of
his experience at the U.S. Attorneys 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 the criminal justice systems 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 highpaying 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 topnotch 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 Departments 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
governments "hired gun" and he was bent on winning.
But his friend Odeana Neal insisted that he was still on the
wrong side. Now an associate professor at the University of
Baltimore law school, Neal and 10 or so African American friends
gathered once a month for dinner and discussion, first at Harvard
and then in Washington. Like a Greek chorus, the group provided
running commentary on everyone's lives. "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 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 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 offenders 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 highpowered 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 20minute
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?

"Were talking about criminals," Butler explains, "so that the
idea that lawabiding people would identify . . . with them in
some way is just fascinating."

Critical race theory offered an explanation. The decadeold
academic movement essentially argues that color blindness 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 threequarters of
drugrelated prison sentences even though they make up only 13
percent of the nations 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 whitecontrolled 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 selfpromoter, 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 attentionnegative or notwas 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 allwhite
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 graystreaked 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 blueflowered sofa in her
house in Mattison, a comfortably middleclass 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 greatgrandmother 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 Walton's
mustardcolored 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 firstfloor
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 threebedroom 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 150yearold 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 allblack 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 daytoday 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 enrage both supporters and
opponents of affirmative action. "Either more whites would have
to be arrested or fewer AfricanAmericans should be.
Alternatively, affirmative action might require identical
sentence 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."