Butler and Dathorne have tackled high-profile cases - and won
Written by Andrew Wolfson
Published in the Courier-Journal January 16, 2012
Alex Dathorne and Brian Butler have won defense verdicts for some of the biggest cases in recent years, including the Jason Stinson trial. The two now face a challenge of the defense of Michael Bishop, the man charged with shooting 12-year-old Jacob Eberle in the back as the boy and other children were running from Bishop's house after ringing his doorbell as part of a game
Brian Butler
Age: 43
Admitted to practice law: 1995
Education: Bachelor’s degree, University of Kentucky; law degree, Notre Dame
Experience: Associate, Stoll Keenon & Park; assistant commonwealth’s attorney and chief prosecutor, Jefferson County; assistant U.S. attorney, Western District of Kentucky; partner, Dathorne & Butler; adjunct law professor, University of Louisville
Family: Married, one child
Alex Dathorne
Age: 44
Admitted to practice law: 1995
Education: Bachelor’s and law degrees, University of Kentucky
Experience: Assistant county attorney, Fayette County; assistant commonwealth’s attorney and chief prosecutor, Jefferson County; prosecutor, U.S. Justice Department, Virgin Islands; criminal trial instructor, U.S. Justice Department, St. Croix; partner, Dathorne & Butler; adjunct law professor, University of Louisville
Family: Married
Notable cases
Defendant:
Robert Patrick Kane
Charges: A banker, charged with reckless homicide for causing the death of two teenagers when he lost control of his vehicle on Interstate 71 on Thanksgiving Day 2010.
Resolution: Alford plea (a guilty plea in which defendant asserts innocence but admits sufficient evidence exists for a conviction); sentence suspended on reckless homicide charge that will be erased if he stays out of trouble for three years.
Defendant:
Tyson T. Mimms
Charges: Murder and tampering with physical evidence in 2009 shooting death of a 21-year-old.
Resolution: Charges dismissed by commonwealth’s attorney’s office after Butler and Dathorne point out weaknesses in prosecution case.
Name: Austin F. Smith
Charges: Using the Internet in 2009 to attempt to persuade what he thought were 15-year-olds to meet for sex.
Dismissed at request of U.S. attorney’s office.
In their own words
Dathorne, closing argument, Commonwealth v. Stinson:
“We've got a man looking at prison time for being a football coach. ... Convict football, don't convict this man. ... This man was doing what every coach in the country was doing that day.”
Butler, closing argument, Commonwealth v. McCoy:
“Katie McCoy made a terrible, terrible decision. We could make a long list of things she could have done differently. But she did not kill that baby. She didn’t do it. The medical evidence is overwhelming that she didn’t do it. She is simply not guilty of this. Let Katie go home. If you do justice and follow the law you will find her not guilty because she didn’t kill her baby and these people didn’t prove it. Do justice.”
They have been called Batman and Robin, Salt and Pepper, the Dynamic Duo and the Dream Team.
First, attorneys Brian Butler and Alex Dathorne won a March 2009 verdict acquitting Bellarmine University student Katie McCoy of charges that she killed her newborn baby by stuffing her in a plastic bag in her dormitory.
A few months later, in the first trial in the United States of a coach criminally prosecuted for allegedly causing a player’s death during practice, they won a not-guilty verdict for ex-Pleasure Ridge Park football coach Jason Stinson.
And last year, they won an acquittal for Bakari Hicks, who was 16 and taking his final exams at Eastern High School when he was arrested and charged with sodomizing a child at his mother’s day care center.
Along the way, Butler and Dathorne also swung deals that kept prominent clients out of jail, including former Lt. Gov. Steve Henry, helping him avoid a felony conviction on charges that he violated state campaign- finance laws in connection with his unsuccessful 2007 gubernatorial race.
Now they face another challenge — the defense of Michael Bishop, 57, who is charged with shooting a 12-year-old boy in the back as he and other children were running from Bishop’s house after ringing his doorbell in a game of “ding-dong ditch.” That case is set for trial March 5.
Butler, 43, and Dathorne, 44, met as prosecutors in the 1990s in the Jefferson Commonwealth’s Attorney’s office and actually lost the first case they tried together, the retrial of a jail officer accused of murdering an inmate while extracting him from his cell.
But as defense-team partners since 2007, Butler and Dathorne have carved a place in the top tier of the criminal bar, according to prosecutors and other defense lawyers.
Courtroom adversaries and former clients say the key to their success is their teamwork and ability to play off each other’s strengths.
Bookish and soft-spoken, Butler handles expert witnesses and scientific testimony. Dr. George Nichols, a former state medical examiner who testified for the defense in the Stinson and McCoy trials, said he is the rare trial criminal defense lawyer who understands medical issues.
Dathorne, more outspoken and gregarious, is an “electrifying force” who connects with jurors, Commonwealth’s Attorney Dave Stengel said.
“Alex is the orator, and Brian is the meat-and-potatoes guy,” Stinson said in an interview.
But it was Butler who punctuated his opening statement in Stinson’s trial by screaming to the jury: “This man is innocent!”
Judges and prosecutors say they fight hard but fair; neither has ever been found in contempt.
“They don’t stab you in the back,” said former prosecutor Jon Heck, who unsuccessfully fought to convict Stinson. “They stab you in the front.”
Dathorne concedes that Butler is smarter, while Butler acknowledges that Dathorne is better looking. Both still joke about a juror who later badgered Dathorne for a date. He said he turned her down.
Different paths
Butler grew up an only child in Madisonville, Ky.; his mother was a teacher, and his father worked in human resources for Peabody Coal.
Dathorne claims a more exotic pedigree.
His father, the late Oscar Ronald Dathorne, a novelist, poet and firebrand black-studies professor, was born in Guyana when it was a British colony; his mother, the former Hildegard Ostermaier, grew up in Bavaria, in southern Germany. They met on a subway platform in London.
Alex and his sister Cecily, who is now director of corporate responsibility at Symantic Corp., the California-based software giant, spent their first years in Nigeria and Sierra Leone, where their father was teaching, and were sent to spend summers in Germany. (Dathorne says his first language was German, and his family still has a house there.)
If his mother hadn’t suddenly decided to fly to Germany from Africa to give birth to Alex in 1967, he probably wouldn’t have lived, his mother told Caribbean Quarterly a couple of years ago in a profile of the family. He was born needing a blood transfusion and with the umbilical cord wrapped around his neck.
Even as a toddler, she told that magazine, Alex was charmer who could make his taciturn German grandfather smile.
The family emigrated to the United States when he was about 6, and his father took a teaching job at Yale. They followed him around the country to Ohio, New York, Washington, D.C., Florida and eventually to Kentucky, where he taught English at the University of Kentucky.
Dathorne said he considers himself “a citizen of the world. But if I have to check a box, I check ‘black.’ ”
Dathorne insists that his pairing with Butler, who is white, has no impact on the firm’s success, while Butler says the combination has probably helped land clients.
“Right or wrong, we live in world where people like somebody who looks like them,” Butler said. “And we look like everyone.”
Early careers
Butler first made headlines as a prosecutor, in a bizarre case in 2000 in which a jury flipped a coin to decide to convict a man of murdering his girlfriend.
The verdict was later thrown out, but Butler said it taught him an important lesson: “You never know how a jury will decide a case,” he said. “It’s pretty scary.”
He rose to a position of chief in charge of supervising murder and white-collar prosecutions.
Dathorne made his name as chief of Stengel’s narcotics unit, where in 1999 he led a yearlong investigation that eventually brought down an international drug ring headed by Jerron Porter, who was one of several defendants convicted and is still behind bars.
“Alex made narcotics a hot place to work,” former prosecutor Shane Young said, in part by going after high-level traffickers.
But Dathorne nearly sabotaged his career in 1999, when he was prosecuting a highly publicized fatal drunken-driving case and was himself arrested for DUI. He pleaded guilty and tendered his resignation, but Stengel refused to accept it, saying he was too good to lose and deserved a second chance.
“I made a colossal error in judgment,” Dathorne said. “But I took responsibility for it. I’m not glad it happened, but I am a better person for it.”
He and Butler informally hooked up in private practice in December 2006, after Butler left the U.S. attorney’s office and Dathorne returned from a brief stint as a prosecutor in the U.S. Virgin Islands.
Dathorne said they try cases together because “the more eyes the better,” while Butler joked, “Maybe we’re not smart enough to do it alone.”
Dathorne and Butler, who made their partnership official in 2010, say they split fees equally and are close friends as well as being partners; Dathorne, who has no children, is godfather to Butler’s only child.
Butler is married to lawyer Ashley Butler, who defends doctors and hospitals. They live in a downscale part of an upscale suburb, but Butler said he would rather not say where because of threats made against him when he was a federal prosecutor.
Dathorne and his wife, Nicole, a federal employee, live on a 5-acre spread in Fisherville.
They say they’ll defend people charged with any offense, but Butler, a conservative-leaning registered independent who served as a Judge Advocate General officer in the Navy, said that because of his military service, they turned down the opportunity to defend one of the Iraqi nationals charged last year in federal court with terrorism offenses.
“That was a case I couldn’t take,” Butler said.
Only one client has sued either for malpractice, and the case, which named only Dathorne, was dismissed.
High praise
The worst result for either lawyer probably came in a Jeffersonville, Ind., road-rage case defended by Butler, who is licensed in Indiana.
After initially hoping that no charges would be filed against Yalanda Parrish, she was convicted in 2009 of battery for shooting a motorcyclist and sentenced to 10 years. Butler said he couldn’t talk about the case specifically, but he noted that sometimes clients reject good advice on when to take a plea bargain.
Parrish didn’t respond to a letter sent to her in prison.
Other clients and their families give the pair the highest marks, saying they are responsive, concerned, committed and genuine.
“It’s an awful way to meet people, but we now consider them friends,” said Ken McCoy, of Plainfield, Ind., the father of Katie McCoy, who Butler says is now in law school. Though acquitted of the more serious charge against her, she was convicted of tampering with physical evidence, for moving the newborn’s body, and given a two-year probated sentence.
Stinson said that during his trial, Butler would call him at night, “just to see how I was doing.”
Henry said that the lawyers could have made far more money taking his case to trial — and that they were prepared to “take apart” the special prosecutor handling it — but nonetheless recommended that he settle because it was in the best interests of his family.
“They were the most professional, empathetic people I’ve ever worked with,” said Henry, who noted that he has been represented by many lawyers.
Stinson case jitters
Butler said the case they lost the most sleep over was Stinson’s, who was indicted after the biggest homicide investigation in Louisville history.
“We had a client who was actually innocent,” he said, “and everybody said we were going to win.”
Said Dathorne: “The whole world was watching and if the jury decided to convict, it would have colossally changed high school sports. And that rested on our shoulders.”
Stinson said that with the financial support of friends and various contributors, he paid a fee in the “six figures” to Butler and Dathorne but got his money’s worth.
“To use a sports analogy, they won 12 days of the 13-day trial — at least,” he said.
The lawyers said they re-evaluate each year whether they will continue to practice.
“When it’s not fun any more, we’ll do something different,” Butler said.
A few years ago, Dathorne said, he was approached by 50 people asking if he would be interested in an appointment as a Jefferson circuit or district court judge.
He said in a recent interview that he wasn’t ready.
But Butler offered a different reason his partner didn’t leave for a career on the bench. “I would have killed him.”