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Illness Could Keep Barry Out of Jail, Experts Say

By Hamil R. Harris and Del Quentin Wilber
Washington Post Staff Writers
Thursday, February 12, 2009

D.C. Council member Marion Barry's new disclosure of his health problems highlights a contradiction about the 72-year-old former mayor. Although he maintains an active schedule of council meetings and social events, he also struggles with a growing list of physical ailments and the effects of aging that friends say contributed to his failure to file his 2007 tax returns, thus risking imprisonment.

The paradox was on display yesterday at a hearing about the need for job training. Barry spent five hours presiding and questioning witnesses and took only one break. That extended activity came just a day after Barry revealed that he is undergoing dialysis and awaiting a kidney transplant and cited concern about his health as the reason he failed to file his most recent federal and D.C. returns.

Legal experts said Barry's medical condition could keep him from being sent to jail even if prosecutors convince a federal judge that he violated his probation by not filing the tax returns. On Monday, prosecutors asked a judge to imprison him for the offense, the eighth time in nine years that Barry has failed to file his taxes on time, they said.

"His medical condition could be used by a defense attorney to seek mercy," said Joseph diGenova, a former U.S. attorney in the District.

Barry, who has survived cancer and a shooting, says he has had diabetes and low blood pressure for two decades. Friends and casual observers have noted that his motor skills are declining.

"I am very familiar with the medical challenges that he is dealing with," said the Rev. Anthony Motley, a friend and adviser who ran Barry's reelection campaign last year. "He was focusing on getting reelected, and he is still suffering over the loss of his ex-wife, and both of these things have taken up a lot of his thinking."

Motley said he has accompanied Barry when he goes to dialysis, a process that takes three to four hours of his week.

"He lost track on what he needed to do in terms of his taxes," Motley said. "When he does file, we believe that he will probably be able to get a refund. It isn't like he is trying to skirt his responsibility."

Barry said Tuesday that his health matters have been "consuming." Although that was "no excuse" for not filing the 2007 returns, he said, "that's the reason."

Barry's defense team may be able to convince U.S. Magistrate Judge Deborah Robinson that jail time would be inappropriate for the former mayor, who turns 73 next month.

If Robinson determines that Barry is too sick for confinement, she could let his three-year probation run out, extend it or sentence him to home detention, said Douglas Berman, a law professor at Ohio State University who specializes in sentencing issues.

"She has lots of flexibility in this," Berman said.

Raising such medical problems could backfire on Barry. In addition to keeping up the robust work schedule, Barry received permission from Robinson a few months ago to leave the country for a vacation in Jamaica, court records show. If Barry was well enough to travel, the experts said, he will have a harder time convincing the judge that he was too preoccupied with his illness to file his taxes.

Barry pleaded guilty in 2005 to not filing federal or D.C. tax returns from 1999 through 2004. Robinson sentenced him to probation, which is scheduled to end next month.

In early 2007, prosecutors asked Robinson to revoke Barry's probation because he did not file his 2005 returns. She denied their request, ruling that prosecutors had not proved that Barry "willfully didn't file."

This time, prosecutors wrote in court papers that a two-year extension of probation would be acceptable if Robinson does not send Barry to jail.

In a footnote, they wrote that authorities could arrange a jail sentence around an undisclosed "medical issue" that Barry is resolving in the next few weeks. They did not explain further.

Barry's colleagues say he remains a fighter. "Don't anyone count Marion Barry out," said council member Tommy Wells (D-Ward 6).

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