Kary Antholis:

This is Jury Duty, a weekly podcast forum for the discussion of crime and justice storytelling, news and narrative analysis presented by Crime Story Media. 

This episode features a discussion between yours truly, Crime Story, Publisher/Editor Kary Antholis and Crime Story Consulting Editor, and Georgetown Law Professor, Paul Butler. 

In our chat, Paul and I discuss the national movement to elect progressive District Attorneys.

Kary Antholis:

Welcome, Paul Butler. Thanks for joining me.

Paul Butler:

Hey Kary, great to be here.

Kary Antholis:

Thanks for your terrific piece on Kim Foxx and Jussie Smollett that we published this morning.

Paul Butler:

I’d been critical of her not being transparent about why she was doing what she did in the Jussie Smollett case. Then the day after I wrote an op-ed way back almost a year ago, she responded to me and other critics with this op-ed where she explained why her office had acted in the way it did in the Jussie Smollett case, and that’s how all prosecutors should be. She was transparent. She was accountable.

Kary Antholis:

I’d like to use that opportunity, the opportunity of your piece to dive into this area and this movement of progressive prosecutors running for district attorney primarily in cities around the country. Reflecting back, I remember an exchange on Twitter between you and James Foreman Jr. Someone came up to him and said that he or she wanted to be a prosecutor because they wanted to fight mass incarceration by becoming a part of a prosecutor’s office. You and James Foreman exchanged an email expressing skepticism that that was a productive way to participate in the process of resistance against the carceral state.

Kary Antholis:

Given that in the year and a half or so that’s passed since that exchange, we’ve come a long way in terms of the progressive prosecutor movement. People like Larry Krasner and Kim Foxx have made meaningful changes in their offices in Philadelphia and Chicago. There are people like Chesa Boudin, who’s taken over for George Gascon in San Francisco. Gascon himself was a progressive and championed Proposition 47 aimed at decarcerating California. I wonder if you’ve reflected on that movement, and what nuances have evolved in your thinking about this progressive prosecution movement?

Paul Butler:

I’m a person who believes that our criminal legal process needs profound transformation. A lot of people understand the depth of the problem of mass incarceration. Famously, the US has 5% of the world’s prisoners, 25% of the world’s inmates. There are more African Americans in the criminal legal process now than there were slaves in 1850. So the question is how do you transform that system into something where there is equal justice under the law? About five years ago, I had students who have the same kinds of concerns that I have asking should they be prosecutors? Because they heard prosecutors have all this power and discretion, and they hoped that maybe by creating change from the inside, they could make more of a difference.

Paul Butler:

So these were folks who, 10 years ago, would have been defense attorneys. They would have gone to work as a public defender or maybe run for office and done policy work. But hearing about the vast power of prosecutors, thought that was the way to make the difference. As it happened, that’s why many years ago, I wanted to be a prosecutor. I went in as an undercover brother hoping that I could create change from within. What I found, and this is in the 90s, was that rather than change the system, the system changed me. It wasn’t like on the first day, I started calling defendants cretins and douche bags, which is how they were referred to in the office that I worked at. It took a while, but the incentives then in prosecutor offices were to lock up as many people as you could for as long as you could.

Paul Butler:

It wasn’t that you were thought of poorly if you were concerned about defendants, but the idea was that if those were your values, that you should be a defender. You should be a public defender. So it didn’t work for me the way I hoped, and that was the message that I communicated to many of my students. A lot of them still decided to go ahead and be prosecutors. I wished them Godspeed, and I said, “Report back.” The reports I got back were discouraging. Many people had experiences like me where they weren’t able to make the kind of difference that they’d hoped.

Paul Butler:

What’s new and different in the last five years is that we have got line prosecutors who are progressive going in on the down low, hoping to be a change agent of the system. We have the actual head prosecutor, the District Attorney, running on a platform that’s about reducing mass incarceration, that’s about alternatives to prison, that’s about giving folks second and third chances. When I made those arguments about people, if you want to be prosecutors, understand the odds are against you transforming the system in the way you hope. My argument was never directed to the head prosecutor, because I always understood that that person is the most unregulated actor in our criminal legal process.

Paul Butler:

She can do whatever she wants, and up until real recently, that hasn’t been reviewed by judges and that says the prosecutors have more power than judges. So I’d said even back then, if there’s a way you could somehow catapult yourself to being the man or the woman, go for it, but that’s not the experience of most line prosecutors. Now, as you mentioned, we have people like Kim Foxx, people like Chesa Boudin, people like Larry Krasner, who are the man, the woman, and they’re using their vast power to try to make a difference. So I’m, I don’t know if you could say optimistically skeptical or encouragingly pessimistic. I’m watching real closely. I’m hoping that they are, as leaders, able to transform.

Kary Antholis:

In your observations, how are the forces opposing these progressive prosecutors marshaling themselves? What are the things that you’re observing that the forces that are trying to support the system, that are trying to protect the conservative, institutional carceral state? What are the tactics and strategies that they’re using to try to fight these progressive prosecutors?

Paul Butler:

Big city prosecutor offices are vast bureaucracies. So when a new leader comes in, she has to deal with the old guard, and many of those people are not on board. They are now managers in a system that they’ve been working in for years and years, and they have a sense of what’s in the best interest of the community, and that’s old school frequently. It’s ‘we need to lock up people. We need to get these thugs off the street.’ That’s the public interest aspect of their work as they see it. Oddly enough, the more people who are locked up, the better they are doing their jobs. That means that the rest of the citizens are safe. So to disrupt that mindset, a lot of elected leaders have found, is virtually impossible. So what you have to do is to get rid of the dead weight.

Paul Butler:

You have to fire a lot of people, and some prosecutors like Larry Krasner have been able to do that. In other instances, because of either the politics or things like union contracts, they’re not able to get rid of people who aren’t down with their program. So they confront resistance from within. Some of these old timers think I just have to wait out until the next election. Sometimes there are concerns about actual sabotage of these new progressive prosecutors who are trying to do the right thing. That’s a huge issue that again, the way to deal with that is it sounds cold, but it’s not unfamiliar. When there’s a new administration in Washington, everybody gets fired who was a political actor. These folks are career folks, but the idea is the same. You want people who are enthusiastic about implementing the policy and those aren’t hard to find. Come to your alma mater, Georgetown law school. I have a number of students who would die to work with Larry Krasner or Kim Foxx or Chesa Boudin.

Kary Antholis:

Tell me a little bit more about what happened in Chicago, and how a judge was able to circumvent the process and appoint a prosecutor to pursue the Jussie Smollett case.

Paul Butler:

If you’re expecting a coherent story, there isn’t one. What everybody knows is that this actor named Jussie Smollett, an African American gay man who was one of the stars of a TV show on Foxx called Empire, claimed that he was the victim of a homophobic and racist hate crime. His claim got a lot of attention. People were outraged and distressed that this would happen to somebody in 2019, which is when the case arose. It turned out after a Chicago police extensive investigation that there was considerable evidence, according to the police, that this claimed attack had not happened. That Jussie Smollett had made the whole thing up. His motive, they said, was to get a raise on his TV show, so he in turn was prosecuted.

Paul Butler:

The Chicago State’s Attorney’s office, which was run by Kim Foxx, this progressive prosecutor, threw the book at him. They charged him with a number of felonies and ultimately, they ended up dismissing those charges. They say that Smollett performed community service. He paid a fine, and that this dismissal was consistent with their policies of providing alternatives to prison and punishment for people who weren’t serious threats. The prosecutors said that they thought that Smollett was probably guilty. They weren’t 100% sure they could get a conviction based on some of the evidence in the case, but at the end of the day, they said they dismiss not because they thought that he hadn’t done it. But it was consistent with a whole bunch of other folks in their office in Chicago who get accused of relatively minor crimes and get breaks based on the platform that Foxx had run on.

Paul Butler:

She said that she wanted to use her office’s resources to go after the real bad guys. I think people may remember that her foil, even though she wasn’t running against her, was the previous Chicago State’s Attorney who had covered up the murder of an African American man named Laquan McDonald by the police. So Jussie Smollett, I think this was the biggest thing that ever happened to him. I think a whole lot more people knew his name after he made these charges than before, but for whatever reason it became a huge media sensation, both the charges and then that dismissal. The President of the United States led the outrage. He tweeted that it was an embarrassment. Chicago’s then mayor said that it had been a whitewash. The City Police Chief went on TV and was practically in tears over Kim Foxx’s office dismissing these charges.

Paul Butler:

So widespread outrage and then this is the bizarre thing that, as the lawyer, makes no sense. There was some random judge in Chicago who filed a complaint against the State’s Attorney’s Office saying that there had been improprieties in the ways that they dismissed charges in the Smollett case, and she got … This random judge got another judge, the chief judge, to appoint a special prosecutor to oversee how Kim Foxx’s office had handled this case. It was bizarre. It was unprecedented, but it happened. So last week, we learned that this special prosecutor overseeing Kim Foxx, a guy named Daniel Webb, brought new charges against Jussie Smollett. He brought six or seven disorderly conduct charges against Smollett, and he says that his investigation of Foxx and her office’s handling of the case is ongoing.

Kary Antholis:

Is that subject, do you think, to Illinois constitutional review?

Paul Butler:

Again, this is all what lawyers would call issues of first impression. So what everybody who is part of this progressive prosecutor movement, the proposition that folks begin with is prosecutors are so powerful because they have all this discretion that’s not subject to review. I was a prosecutor at the US Department of Justice, and my beat was public corruption. We declined many more cases than we prosecuted, and we frequently declined, just like Kim Foxx, not because we thought the person was innocent, but we thought there might be a better alternative than the criminal legal process. Sometimes folks were involved in upcoming elections, so we let the voters decide. Other instances, we thought just cost benefit analysis, it’d be better not to bring the case, witnesses, any number of reasons.

Paul Butler:

But again, I’d say, I don’t even want to venture a guess, but conservatively, for every one prosecution, I initiated, I decline five. Prosecutors do that all the time. The idea that some judge could look at a declination and say, “No, that’s wrong, you got to bring the case,” never occured to me. It never occurred to any prosecutor I know because it didn’t happen. Again, the whole point of the progressive prosecutor movement is that prosecutors are so powerful because they’re not subject to this review. So when you ask, well, can the special prosecutor who’s reviewing the elected prosecutor, can the special prosecutor be reviewed by another judge or prosecutor? This is Chicago, so anything goes. I have no idea.

Kary Antholis:

It’s interesting. In response to reading your piece, I just looked up to see if there was anything else like this that has gone on since this spate of progressive prosecutors have been elected. Apparently in Boston, the progressive prosecutor there declined to bring charges against protestors of a straight pride parade, and a judge tried to do something similar to what the Chicago judge did to Kim Foxx. The prosecutor in Boston, her decision to decline to prosecute was upheld and the judge’s effort to have a special prosecutor assigned was denied.

Paul Butler:

Yeah, but then there is what happened in Orlando where there was a progressive prosecutor who was against the death penalty. There was a tragic case in which a police officer was killed in the line of duty. Even in that case, the prosecutor said she was not going to ask for the death penalty, because of her concerns about racism and classism and all the things that don’t matter that go into the decision about whether someone gets killed as punishment. She just wasn’t going to do it. Her decision resulted in the Republican governor of Florida taking away all of her death penalty eligible cases and assigning them to another prosecutor from another district. Was this legal? Was it constitutional? It happened. What all three of these prosecutors have in common, the prosecutor in Orlando, the prosecutor in Chicago, and the prosecutor in Boston is that they’re African American women.

Kary Antholis:

Interesting. In the piece that you wrote for Crime Story, you concluded by saying that if you were on a jury judging the Jussie Smollett case that’s to come, you would exercise your right to vote for jury nullification of the trial. I couldn’t help but think that the senators that voted on the impeachment of Donald Trump, many of them acknowledged that what he did was subject to being called a high crime and misdemeanor, and yet they made a decision to acquit Donald Trump because they did not believe that it merited removing him from office. In a sense, that was jury nullification. You’ve been very vocal about what you’ve called the instrumentalist approach that Attorney General Barr has taken to enforcement of law, and at the same time that he’s criticizing progressive prosecutors, he is giving license to illegality and misdeeds within this administration. How do you reconcile the jury nullification that senators engage in with the advocacy of jury nullification in cases like the Jussie Smollett situation?

Paul Butler:

I first learned about jury nullification when I was a prosecutor in DC doing street crimes and drug crimes. As a rookie prosecutor, I was warned by some of the experienced guys that sometimes we prosecutors would persuade a jury beyond a reasonable doubt that the defendant was guilty. But if it were a drug case and especially a drug possession case, and the defendant was a young black man, the DC jurors were going to acquit. At this time, DC jurors were mainly African American, and the prosecutors told me that they would acquit because they didn’t want to send another black man to jail. When I started trying cases, this happened all the time. So when I started writing as a law professor, it was the first thing I wanted to study. What I learned was that this practice called jury nullification is a power that jurors have.

Paul Butler:

It’s built into the constitution. For most of the history of the United States, it was accepted that it was the role of jurors to judge the law as well as the facts. If they thought that in a particular case, a prosecutor was doing something that was an abuse of the prosecutor’s power, the jurors didn’t have to convict even if they thought the person was technically guilty. So I wrote an article in the Yale Law Journal where I suggested if the DC jurors were doing that kind of nullification, that their analysis was correct. That is there were too many black men in prison then and now, and the way that the act could have the most political purchase was that if it were more organized, if it were more overtly political as opposed to the nontransparent way it was happening from jury trial to jury trial.

Paul Butler:

The article got a lot of attention. It was this former prosecutor recommending that black jurors acquit some black defendants, even though the defendants were guilty. One of the questions I got was a version of what you just asked Kary. So folks said, okay, well, if DC jurors do it in nonviolent drug cases for African American defendants, how is that different from what used to happen in the South in the 1950s and 60s where white supremacists committed terrorist acts against civil rights workers or African American people, including killing them, and white Southern jurors acquitted them? That’s nullification. What’s the difference? The thing about nullification is it’s a power. It’s like any other power. It could be used for good or it could be used for evil. So when we think about the practices of nullification that I think most people would support, an easy case is the Fugitive Slave Act.

Paul Butler:

It was against the law to help a slave run away. There’d be proceedings in Boston in the 1850s where most folks were abolitionists, and they’d be sworn in as judges on fugitive slave cases. A lot of times, the people who’d helped the slaves escape admitted that they did it. There was a case in the courthouse in Boston in the 1850s where there was a fugitive slave proceeding. So the person, the enslaved person doesn’t have a speaking role at the trial. The trial is just to see who he belongs to. During the course of this proceeding, two men, a black man and a white man, they walk into the courtroom, they pick up the enslaved man. His name was Shadrach. They take them out of the courtroom, and they put them on a train to Canada to freedom. The jurors found the two men who helped the slave escape not guilty. When I talk about that case, I often ask people, “What would you do if you were the juror?”

Paul Butler:

Almost everybody says they would’ve done the same thing. They would not have punished those two men for the act of helping an enslaved person go free. When I was a prosecutor, there were people, believe it or not, as late as the 1990s who were prosecuted for consensual homosexual sex. Gay men who might be having sex in a car who get discovered by cops, and they’d be charged with sodomy. Again, these weren’t frequent prosecutions, and I wouldn’t have done one of those cases, but people did. There was a hard time finding jurors who would apply the law, even though, at that time, it was constitutional for consensual gay sex to be punished. Jurors would nullify in those cases. Now, I think almost everybody should understand those jurors were doing the right thing. So that’s a long winded way of explaining that when you look at what I call good nullification, it doesn’t inspire bad nullification.

Paul Butler:

The fact that those white supremacist jurors were nullifying, when they did that, they didn’t say, “Oh, we’re doing that because of the fugitive slave cases.” They did it out of their racism, out of their white supremacy. So again, when I look at nullification in the context of someone like Smollett, I don’t think that the senators who voted not to remove Trump from office would say, “Oh, we’re doing that because black jurors are nullifying in Oakland and the Bronx and in DC because they’re critics of mass incarceration.” I think bad nullification comes from a different place.

Kary Antholis:

Paul Butler, thank you for your time today. Really appreciate it, and looking forward to the next opinion piece and to our next conversation.

Paul Butler:

Always a pleasure, Kary. Thanks for having me.