Pratt Retrial Bid May Ride on Definition of ‘Informant’

The scene in Orange County Superior Court was a replay of a confrontation nearly a quarter-century earlier.

Julius C. “Julio” Butler, the key prosecution witness against former Black Panther Party leader Elmer “Geronimo” Pratt, was testifying. Johnnie L. Cochran Jr., Pratt’s lead defense attorney in the 1972 murder trial, was again asking the questions.

This time, Cochran read from FBI memos released seven years after Pratt’s conviction--memos saying Butler had told agents that Black Panther Party leader Eldridge Cleaver had a .50-caliber machine gun mounted on a truck, that Panthers in Oakland had a rocket launcher, that Pratt had a submachine gun and a .45-caliber pistol.

Butler, 64, continued to deny that he was an “informant.”

A former Los Angeles County sheriff’s deputy and an ex-Panther, Butler was the linchpin in the case against Pratt--a case that symbolized the violence that ended the Panthers’ effectiveness as a militant black movement. It was Butler who told authorities that Pratt had killed schoolteacher Caroline Olsen on a Santa Monica tennis court in 1968. Butler later testified that Pratt had confessed the crime to him.

Today, as Pratt seeks a retrial, Butler’s credibility and his relationship with law enforcement remains the central issue. And the question of whether he was an informant is as important as it is difficult to settle.

Pratt, 49, denies that he made a murder confession to Butler, and maintains--as he did during his trial--that he was in Oakland when Olsen was shot during a robbery.

And Pratt says Butler lied when he testified in 1972 that he was not a law enforcement informant and had never informed on anyone.

The jury believed Butler.

But that was before the FBI released documents in 1979 detailing more than 30 contacts agents had with Butler before Pratt’s trial. Three jurors have since said that had they known about those contacts, they would not have voted to convict Pratt.

Those FBI memos have become crucial in Pratt’s efforts to win a new trial. Without them, his lawyers contend, the jurors who convicted him were missing a critical tool for assessing Butler’s credibility.

After two weeks of testimony in the retrial hearing, Pratt’s chances for a new trial appear to boil down to a single question: Who is telling the truth, Pratt or Butler? The burden is on Pratt to prove that Butler--now a lawyer and a leading official at Los Angeles’ First African Methodist Episcopal Church--lied on the witness stand.

The debate over whether Butler was an informant has raged since the FBI released memos on agents’ contacts with him. Butler had testified at Pratt’s trial that he did not work for the FBI or the CIA, and he denied on the witness stand that he had ever informed on anyone.

Two courts adopted narrow definitions of the term “informant” as part of their decision to let Pratt’s murder conviction stand.

Orange County Superior Court Judge Everett W. Dickey now has been given the task of determining whether Pratt’s conviction should be overturned. He is presiding over a hearing that was moved to Santa Ana to avoid a conflict of interest because Los Angeles Superior Court Judge Richard P. Kalustian, Pratt’s prosecutor while a deputy district attorney in 1972, was called as a witness.

Dec. 16, the hearing’s first day of testimony, was dominated by a renewed debate over definitions, beginning with the fact that Butler’s name has turned up in a file of the Los Angeles County district attorney’s “confidential informants.” Prosecutors, who are opposing Pratt’s request for a new trial, attempted to show that the district attorney’s office file contained names of confidential “sources”--not confidential “informants.”

It was a distinction echoing decades-old debates about Butler’s role: When is a source an informant, or an informant a confidential informant--or a “liaison” or a “mediator?”

Shortly after releasing its memos in 1979, the FBI said the confusion about whether Butler was an informant “is understandable in light of the contrast between the broad dictionary definition of informant and the precise law enforcement usage of that term.”

Noting that a dictionary defines informant as one who gives information, the FBI went on to say: “Of course, under that broad definition, Butler would be considered an informant, for he supplied information to the FBI.”

But Butler is not what the FBI manual calls an informant, the bureau noted, adding that he was a “probationary informant”--someone being “cultivated as an informant, but whose reliability and willingness to cooperate are not yet established.”

Pratt’s supporters scoff at the notion that Butler was drawing a fine legal distinction in 1972, when he denied being an informant; they insist that Butler simply lied.

A later FBI memo dismissed questions about definitions as “not enlightening,” adding: “Certainly, FBI labels are not critical.” The crucial issue, the memo said, “is whether Pratt was denied a fair trial because the jury was not told Butler supplied information to the FBI.”

A Los Angeles Superior Court judge was aware of Butler’s relationship to the FBI when she turned down Pratt’s 1979 request for a new trial, the memo said. Pratt filed a new petition in 1980, and a divided 2nd District Court of Appeal again turned him down.

“The failure to disclose to the jury the extent and nature of the FBI contacts with witness Butler . . . was nonprejudicial and harmless beyond a reasonable doubt,” the late Justice L. Thaxton Hanson wrote for the majority, which included Justice Mildred Lillie. (Hanson’s opinion was written before three jurors said they would have acquitted Pratt had they known Butler’s role.)

Hanson also cited a legal definition of informant as someone who “informs or prefers an accusation against another, whom he suspects of the violation of some penal statute.” The information Butler gave the FBI does not make him an “informant” within that legal context, Hanson wrote.

Long Beach Superior Court Judge G. William Dunn, sitting as an appellate court justice, “vigorously” dissented from Hanson’s opinion.

Between August 1969 and April 1972, Butler had 33 contacts with FBI agents “during which he supplied information to the FBI about the Black Panther Party in Los Angeles,” Dunn wrote.

“While there may be semantic distinctions regarding what criteria defines an ‘informant’ and about what constitutes ‘working for’ the FBI, the [FBI memos] indicate that Butler was, in some instances, described as a ‘PRI’ which, translated, means Probationary Racial Informant.”

Dunn argued that Butler’s status as an informant “was a material fact which could have affected his credibility at the Pratt trial.”

The Hanson court also dealt with the separate issue of an informant whom the FBI admitted was “in the defense camp” before and during Pratt’s trial. The presence of that still-unidentified informant had no more effect on the fairness of Pratt’s trial than “the furniture in the areas where the discussions were conducted,” Hanson wrote.

In his dissent, Dunn wrote that Pratt’s due-process rights were violated because a defendant “has an absolute right to . . . communicate with his counsel in private.”

Pratt filed another petition for a new trial in federal court in 1985, but U.S. Magistrate John R. Kronenberg supported Hanson on Butler’s role.

“That Butler was an FBI informant is doubtful,” Kronenberg wrote. “The evidence indicates that he was a contact and nothing more.” He did not explain the distinction.

The definition of informant is not precise, Kronenberg wrote. The California Court of Appeal had found that Butler was not an informant, and Kronenberg said he was required to presume that such a factual finding was correct.

Lay minister Jim McCloskey, whose New Jersey-based Centurion Ministries has championed Pratt’s cause, called the distinctions between “informant” and “contact” little more than “an artificial device courts have used to wiggle out of reversing Pratt’s conviction.”

Cochran said courts and prosecutors are “playing word games to justify the result they want. We have spent 25 years where so-called intellectual people play word games. In many respects it’s intellectually dishonest. You decide what the result is and try to justify it.”

With Butler on the witness stand in Orange County last week, Cochran had his first chance in 25 years to ask him how he defined “informant.”

Informing is “giving accurate information about something--not something I’m guessing at,” Butler said. He then said he was not guessing when he told agents Pratt had a submachine gun--a weapon FBI memos indicate once belonged to Butler.

“So when you said the names Eldridge Cleaver and Geronimo Pratt, these are names you gave the FBI?” Cochran asked. “You informed on them?”

Butler’s response: “I didn’t inform. I hold it as a conversation regarding my well-being.”

“So under your own definition, you were informing to the FBI?” Cochran asked again.

“You could say that,” Butler said. But he absolutely refused to say that he was now contradicting his 1972 testimony. In later testimony he expanded his definition, saying an informant is someone who gives information that leads to someone else being arrested or convicted.

He again acknowledged that he had acted as an informant, but he later changed that statement, saying he had never intended to say he acted as an informant.

Pratt’s attorneys have produced two former law enforcement officers who have testified in the current hearing that Butler was their informant, and promise more to come this week.

Last Friday, retired Los Angeles Police Capt. Edward Henry acknowledged that Butler was “technically” an informant. But Henry added an entirely new dimension to Butler’s alleged role.

He noted that Butler had used the most obscene language of all the Panthers when party members confronted police. After meeting with Butler, Henry said, he then saw Butler’s obscenities as an effort “to convince the Panthers that he was a good Panther.”

Asked if he thought Butler was acting as an agent provocateur when he loudly confronted police with obscenities, Henry answered: “In effect, yes. My thoughts at the time were that I didn’t think Julius Butler cared what happened to the Panthers.”