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Prosecutors Appeal Barry Decision

D.C. Council member Marion Barry faces traffic charges as well.
D.C. Council member Marion Barry faces traffic charges as well. (Nikki Kahn - The Washington Post)

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By Carol D. Leonnig
Washington Post Staff Writer
Friday, March 23, 2007

Federal prosecutors yesterday appealed a magistrate judge's ruling that rejected their request to send D.C. Council member Marion Barry to jail, calling her decision "unsound" public policy.

The top prosecutor for the District is asking the chief judge of the federal court to overrule a March 12 decision by U.S. Magistrate Judge Deborah A. Robinson in which she refused to consider revoking Barry's probation in a criminal tax case. Prosecutors wanted the former mayor jailed for missing deadlines for filing tax returns for 2005.

Barry, 71, was sentenced by Robinson in March 2006 to three years' probation after he pleaded guilty to two misdemeanor tax charges. He could have been jailed for up to 18 months. By not filing the 2005 returns on time, prosecutors said, Barry flouted terms of his probation.

Robinson said in her order, however, that the U.S. attorney's office did not have the authority to ask for anyone's probation to be revoked, and that only the U.S. Probation Office could alert her to probation violations. Robinson said that because the prosecution had overstepped its authority, she would not even schedule a hearing to look into the matter.

In their appeal yesterday, prosecutors argued that the U.S. attorney's office has the power to recommend that criminal defendants lose their probation -- and that, because of the broader ramifications of Robinson's interpretation, they were not about to let it stand.

"The magistrate judge simply is wrong in advancing the novel legal theory," wrote Assistant U.S. Attorneys Thomas Zeno and James Cooper. "No law -- either case, statute or rule -- supports the magistrate judge's Order."

Barry (D-Ward 8) filed his 2005 tax returns only after prosecutors alerted the judge to the missed deadlines. He had said last week that he was delighted by Robinson's order. Yesterday, Barry's lawyer, Frederick D. Cooke Jr., would not comment.

Probation officials have declined to comment on whether they plan to recommend that Barry's probation be revoked.

Barry also faces legal troubles stemming from several unrelated traffic offenses. A judge in D.C. Superior Court has set a trial date of June 12 in those cases.

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