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Barry Used Drugs, Defense Concedes

By Michael York and Tracy Thompson
Washington Post Staff Writers
Thursday, August 2, 1990; Page A01

D.C. Mayor Marion Barry's lawyer, R. Kenneth Mundy, acknowledged yesterday before the jury for the first time that the mayor has been an occasional cocaine user, but declared that the government has not proved specific charges of cocaine possession beyond a reasonable doubt.

But Assistant U.S. Attorney Judith E. Retchin asserted that the mayor's cocaine use was more frequent and cited testimony that he allegedly used drugs roughly 200 times since 1983. Retchin also said that if the war against drugs is truly a war, then Barry is a general who aided the enemy and betrayed his troops.

"You cannot win a war with a camp divided," Retchin told the jury near the close of three hours of closing prosecution arguments. "Our government can't work well when the chief executive officer charged with enforcing all the laws goes into the grand jury and shows his utter contempt and disdain for the process. He goes into the grand jury and he lies."

The statements came as both sides presented final arguments yesterday in the eight-week case. Both sides were scheduled to complete their arguments yesterday, but Mundy was able to present only half an hour of his argument to the jury because in mid-morning, a 50-minute conference in the chambers of U.S. District Judge Thomas Penfield Jackson threw off the day's schedule. Jackson ordered the transcript of the conference sealed without giving a reason for his order.

Mundy is scheduled to complete his arguments today, and then the government will be able to present a brief rebuttal. At that point, Jackson could give the jury its instructions, excuse the six alternate jurors and allow the remaining 12 to start deliberations.

The courtroom was hushed as observers strained to hear every word from the opposing attorneys. Some would-be spectators spent the night outside the courthouse to get a seat, said a deputy U.S. marshal. In the afternoon, Jacqueline Jackson, wife of Jesse L. Jackson, sat on the bench partly reserved for friends of Barry's, next to the mayor's wife, Effi. Bishop George Augustus Stallings Jr. also was there.

Mundy's admission that the mayor occasionally had used drugs was the first time either he or Barry had acknowledged drug use other than smoking crack at the Vista Hotel during the FBI sting on Jan. 18.

Mundy told the jurors he wanted "to start at the beginning by not insulting your intelligence.

"I want your respect, and I want you to be able to follow the evidence as we summarize it for you, and so I will start right from the beginning by telling you that we do not intend to indicate or claim that Mr. Barry did not use cocaine.

"We do not mean for one moment to give you the impression that there was not a use of cocaine, occasional use of cocaine by Mr. Barry during the period in time that we have evidence about."

Just as Mundy sought to establish credibility with the jury by admitting Barry's drug use, Retchin said she understood how some jurors might feel uncomfortable with the undercover sting, and the FBI's use of a former Barry girlfriend as an informer.

"You don't have to like Rasheeda Moore," Retchin said. "You don't have to invite her to your home for dinner. What we are asking you to do is to look at the testimony of Rasheeda Moore and see whether or not it is truthful."

Likewise, Retchin told the jurors to put aside their personal feelings about the undercover sting and to convict Barry based on the judge's instructions.

"Whatever you feel . . . you must put aside if you thought it was a good idea or a bad idea. Write us a letter after the trial, but it has nothing to do with what happened," she said. "It should not affect your deliberations at all."

Retchin compared the city to an army at war. Despite frequent rumors that the general of the army was in league with the enemy, she said, no one had been able to prove it -- until the Vista sting.

Only then, she said, was it proved: "The general was working with the other side."

Retchin returned again and again to the most serious charges against Barry -- three felony perjury counts alleging the mayor lied to a grand jury in January 1989.

The panel was investigating alleged drug use in December 1988 at the Ramada Inn hotel room of former D.C. employee Charles Lewis. Also there on Dec. 19, was D.C. employee James McWilliams. Both men pleaded guilty to drug charges and testified against Barry.

Retchin said Barry wove a "web of deception" that started to come apart on Dec. 22, 1988, the day of the Ramada Inn episode, and that he sealed his fate by going into the grand jury weeks later prepared to lie.

"Mr. McWilliams was calling up and doing damage control," Retchin said. "Charles Lewis had already lied to the investigators." Barry "thought he could go into the grand jury and continue to keep the wool over everyone's eyes."

But in that grand jury appearance, Retchin said, Barry betrayed himself without meaning to. He blurted out denials of drug use without even being asked, she said.

Retchin likened Barry's behavior to that of a child who is forbidden to watch television but who, when asked, "What are you doing," responds, "I'm not watching television."

When he was asked an open-ended question about whether he had given Lewis anything of value, Retchin said, Barry replied, "No. If you are getting at -- I have never given Mr. Lewis any cocaine or any other drugs. Announce that right up front."

"Ladies and gentlemen," Retchin told the jury. "He couldn't even keep the lie inside of him. It had to jump out from him."

Moreover, Retchin argued, witnesses who did not know each other, such as Lewis, Barry girlfriend Theresa Southerland and another Barry friend, Doris Crenshaw -- corroborated each other's testimony. All three, Retchin said, testified about smoking crack with Barry from a makeshift pipe made out of a glass with tinfoil on top.

Southerland and Moore did not know each other, "and it is probably a good thing," Retchin added dryly, provoking a chuckle from the spectators. But both testified about being with Barry at the homes of lawyer Lloyd N. Moore Jr., close Barry friend Daniel Butler and advertising executive A. Jeffrey Mitchell.

"They did not have an opportunity to sit down and say, 'Well, let's say this about Mr. Barry,' " Retchin said.

Mundy, who had only about 30 minutes to begin presenting his closing arguments before the jury yesterday, told the jurors they should scrutinize the motives of the government witnesses. All the prosecution's witnesses, Mundy said, "had something to gain by dealing with the government," and many received immunity from prosecution.

But the defense couldn't offer immunity in return for a witness's cooperation, he said, and couldn't compel a witness's testimony before a grand jury.

"We can't offer anybody anything," Mundy said. "We are not playing on a level field."

In acknowledging that prosecutors had introduced much evidence against the mayor, Mundy urged the jurors not to judge Barry on his moral conduct.

"Mr. Barry is not being tried because of what you might consider to be sexual improprieties or sexual promiscuity," Mundy said. "He is not being tried for general {drug} use or for wrongs that he might have committed. He is being tried for specific counts . . . .

"Ladies and gentlemen, you sit in a jury box. You don't sit in a ballot box," Mundy said. "It is not whether you like Mr. Barry, whether you like Mr. Barry's lifestyle or whether you like things that have been paraded here about Mr. Barry."

Mundy also challenged Retchin's warfare analogy. He said the use of the undercover sting was like the Germans' use of mustard gas in World War I even though it was outlawed under international law. And, like mustard gas, improper law enforcement techniques hurt not only the intended target, but many people nearby. The victim, he said, "might be Mr. Barry today and somebody else tomorrow."

Mundy also said the jury should question why only two of the 10 possession charges were supported by testimony of a specific date, and should not be convinced by "red herrings" thrown out by prosecutors to discredit defense witnesses.

Mundy reminded the jurors about Retchin's warning to them about Mundy's dramatic courtroom ability and his possible use of "blue smoke and mirrors" to distract them from facts. He said it was Retchin who "raised the smoke" in trying to discredit defense witness Clifton Roberson.

Roberson, a member of Barry's staff, was a key witness in the mayor's alibi defense to the charge he possessed cocaine at the Frank D. Reeves Municipal Center on Sept. 7, 1988. Roberson testified that he, not Barry, met government witness Lydia Reid Pearson that day just after 10 a.m., the time Pearson said she handed Barry crack and a job application.

Mundy's statement about Retchin blowing smoke referred to prosecutors' introduction into evidence of an absent-without-leave slip indicating Roberson was not at work then.

The real issue, Mundy said, was that the defense had challenged successfully the only charge in which a government witness had given a specific date and time. Mundy appeared ready to argue that if jurors don't believe this most specific charge, then they should not believe the others.

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