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Chasm Divided Jurors in Barry Drug Trial

By Elsa Walsh and Barton Gellman
Washington Post Staff Writers
Thursday, August 23, 1990; Page A01

After two days of deadlocked deliberations, the jurors in the trial of D.C. Mayor Marion Barry were examining the evidence that FBI agents seized from the mayor after the Vista Hotel sting: a crack pipe, a suit coat, business cards. Inside a clear plastic bag was a piece of the white, rock-like substance he'd smoked -- 93 percent pure crack cocaine, an FBI chemist had said.

Valerie Jackson-Warren was suspicious. The D.C. Corrections Department secretary told fellow jurors that this wasn't crack. Crack is yellow, and this looked like sugar, she said. Juror Johnnie Mae Hardeman, a former Garfinckel's employee, agreed. Perhaps it was baking soda, she said.

Tonna Norman, a Pentagon records manager, shook her head and walked away from the evidence table in disgust. She couldn't believe jurors were disputing facts not contested by anybody at the trial. "This is getting out of control," she told juror Joseph M. Deoudes.

Later, several jurors said, the judge stated they couldn't debate uncontested facts. Not even Barry's lawyer denied that the substance was crack. But the skeptics remained firm. "How do you change someone's mind when they look at an evidence bag there's crack in, and they say it's not crack?" said a juror.

Similar debates divided the 12 for the eight days of their deliberation. The nine women and three men agreed that the mayor had used cocaine -- Barry's lawyer, R. Kenneth Mundy, admitted that. But they found little more common ground.

There were two blocs from the beginning. The two sides were equally stubborn and ill-disposed to compromise.

One bloc of five middle-aged and older black jurors voiced a deep distrust of the government's case. Some said they believed the government manufactured evidence and coached witnesses to lie so it could oust a black mayor from office. The other bloc -- consisting of six or seven jurors -- believed the evidence against Barry was so overwhelming that it had no option but to convict.

"I believe {the government was} out to get Marion Barry," said Jackson-Warren in an interview. "I believe that with all my heart." She was described by several jurors as the leader of the pro-acquittal group.

In extensive interviews with five of the 12 jurors, and conversations with two more, all described a chasm so wide between the two groups -- in outlook, experience and perception -- that there was never any real prospect of bridging it.

The panel of 10 blacks and two whites reached a consensus on only two of the 14 counts. Barry was convicted on one cocaine possession count and acquitted on another, but U.S. District Judge Thomas Penfield Jackson declared a mistrial on the 12 deadlocked charges.

On the deadlocked counts, the closest the jurors came to conviction was 10 to 2. The closest they came to acquittal was 9 to 3. The remaining undecided counts, including all three felony counts of perjury -- split 6 to 6 and 7 to 5.

Of the five jurors voting most frequently for acquittal, two voted on every count but one for acquittal. Three in this group were born in the segregated South and three said during jury selection that they had felt racial prejudice.

This group consisted of Hardeman, 61, who lost her job in the Garfinckel's bankruptcy; Joyce Hines, 48, a former mailing service employee; Harriedell Jones, 59, an accounting assistant with the U.S. Department of Housing and Urban Development; Jackson-Warren, 40, and Hilson Snow, 49, a United Parcel Service employee.

Another black woman, Marilyn Thomas, 45, initially voted with the pro-conviction bloc, but later switched, jurors said. She works for the U.S. Holocaust Memorial and used to work at the FBI.

The four youngest black women voted most often for conviction. Of them, three voted every time but once to convict Barry. They were Marsena Hall, 22, a D.C. schools office assistant; Deborah Noel, 34, a clerk at Howard University Hospital; Norman, 30, an employee of the U.S. Defense Mapping Agency; and Patricia Chaires, 40, program administrator for postgraduate medical studies at Howard University.

The two whites on the jury, both men, voted predominantly with the younger black women for conviction. American University student Deoudes, 23, voted to acquit Barry on three counts. Edward P. Eagles, 54, a St. Albans School history teacher who was elected foreman, voted to acquit him on two charges.

Eagles only sporadically steered discussions, and the jurors frequently discussed matters the judge had told them to avoid. Some regularly discussed their disapproval of the government's methods in pursuing Barry, and what they thought were the government's bad motives for prosecuting him.

Some jurors also routinely asked whether a given charge was a misdemeanor or a felony, a debate that several other jurors interpreted to mean they were concerned about Barry's possible punishment if convicted. Following standard procedure, the judge had instructed them not to focus on punishment.

Meanwhile, some pro-conviction jurors, in equal disregard of the judge's instruction, disparaged Barry's character. Some were offended by what they thought was Barry's "arrogance," and had to be reminded they shouldn't pass judgment on his character, Snow said.

There were occasions in deliberations when a pro-acquittal juror accused a black woman on the other side of not adequately identifying with blacks. At one point, Jones told Chaires, a hospital administrator with a college degree, that she was "sick of you bourgeois blacks," recalled one juror. Early Problems

The first morning of their deliberations, the foreman, Eagles, had hardly read aloud Count 1, alleging Barry conspired to possess cocaine from 1984 to 1990, when it became apparent that consensus wouldn't be easy.

There had been testimony that Barry had used cocaine with at least 13 people during those years.

But one juror wrote in a diary that first morning, "It is clear that some jurors think all the witnesses lied . . . . I believe this will prove to be a problem as we move on."

Another problem was the punishment Barry might face upon conviction -- a matter the judge had instructed them was of no concern to the jury. "Somebody asked the question, was conspiracy a felony, or what?" recalled Chaires. "I said you don't even ask that question."

But some jurors had been ignoring the judge's instructions for some time. Although the judge had admonished the jurors not to discuss the case before deliberations began, a number of them filled spare hours talking about the evidence and fellow jurors' sentiments.

One juror found out that two of the women jurors were disturbed by Barry's conduct, and he recommended that they read a book about whites' oppression of blacks. The women declined.

Another juror, after a grueling day of testimony and an earful of comments from other jurors, scribbled in a diary, "I know this is going to end in a mistrial . . . . People have been showing and revealing thoughts. RKM {Mundy} is winning."

The juror was angered that a number of the other panelists seemed to be agreeing with Mundy that the government was on trial, not Barry. "Today was the worst day in court," the juror wrote.

Once at the jury table, Jackson-Warren established herself as the government's most outspoken critic. Jackson-Warren, according to some jurors, often instructed others on the criminal justice system and street life. She knew crack addicts, she said, and Barry could not be one and still run the city.

In the jury room, Jackson-Warren turned to Chaires and asked, "Do you think for one moment that if this had not been Marion Barry, that this trial would have come about?"

As the group began with the conspiracy count, names of possible co-conspirators were thrown out. Charles Lewis, the Virgin Islands man whose testimony was the basis for seven counts, was the first. Chaires and others said Lewis already had been jailed once for drugs and had no reason to lie. Others assailed his character and credibility.

"There was talk around the table, he was a scumbag," said one juror, who quoted Chaires as replying, "If he was such a scumbag, why would Marion Barry go visit him four times at the Ramada Inn? Why would he even associate with this type of person if he knew this was the kind of man he is -- a user, an opportunist?"

Jones, according to the juror, erupted, "If you knew what kind of man he {Barry} was -- he was always a street person. If you knew what kind of man he was, you wouldn't be saying that. And I'm sick of you bourgeois blacks."

The group quickly went through another nine names before they decided to go to the next charge. A. Jeffrey Mitchell, a close friend of Barry's whom the prosecutors had spent months developing as a witness, was discussed for only about a minute.

Strong personalities emerged as the day wore on. Jones, who read the Bible and listened to religious tapes, soon joined Jackson-Warren in saying that the government had been out to get Barry because of his race.

Jones and Jackson-Warren had strong support from Snow and Hardeman, who had told some jurors about growing up in the segregated South. Hardeman confided to some that she was convinced there is one set of laws for whites and one for blacks. President Reagan and former White House aide Oliver North got off easy, she said.

For the pro-conviction group, Deoudes and Chaires emerged as the strongest voices. Deoudes disputed points made by the other side, but avoided racial discussions. Chaires kept rereading the judge's instructions to the group and reminding them to use their common sense.

"We all agreed that he had done drugs," said Chaires. "And I said, 'Well, if that is the case . . . then there must have been a conspiracy because he had to have been getting his drugs from someplace.' . . . . I think a lot of the other people felt like {he was} being railroaded."

If it was anyone's job to guide jurors into the consensus needed for a verdict, it was Eagles's. For that reason, he had been a frightening choice for the defense.

A panel including nine black women and one black man had chosen for its leader the popular image of a Barry antagonist: a graduate of the prestigious St. Albans and Princeton University, a white man from the wealthy Spring Valley neighborhood.

Mundy expressed worry about the method of deliberation a historian could be expected to propose. Eagles, Mundy feared, would be methodical in his review of the evidence and scrupulous in his application of the law -- the antithesis of the freewheeling, emotional debate Mundy had tried to provoke.

But Mundy misjudged Eagles. A gentle, slender man -- one juror nicknamed him "The Scholar" -- he was disinclined by temperament or philosophy to strong-arm the group toward consensus. What he seemed to care about most, several jurors said, was that each person be treated with respect and that the jury, and the city, emerge with a prospect of healing.

"We're not going to get personal here," one juror quoted him as saying the first day of debate. "We keep our emotions out of it. We're here to do our jobs, our service to the government or the nation, and just keep it strictly professional."

But Eagles himself at times became a target of those emotions. Irritated by something Eagles said, Jones once asked him whether a man like him could know anything about shady people.

"She was implying that he was very naive and led a very sheltered life," said one juror. "And he said, 'I think I know what you're getting at, but it really has no bearing on these discussions. But I will answer your question, and the answer is yes.' "

At some points, the foreman had to compete for control of the proceedings. Jackson-Warren sometimes seemed on the verge of "taking over," one juror said.

One pro-conviction juror said of Eagles, "sometimes we actually had to draw him out, because he was at times a timid personality . . . . And sometimes it was infuriating."

Several jurors cited an awkward incident on Aug. 7 as a sign of Eagles's unwillingness to force the group's view on an individual. The jury had reached a guilty verdict on one count and told the judge it had an announcement. But, because of last-minute indecision by Jones, Eagles didn't know how to respond when Judge Jackson asked him for the verdict. Jackson then asked whether they were ready to give a verdict. It was Snow who answered, "Not at this time."

One juror, in a diary, said Eagles was "wimpy." Chaires told him, "Look, Ed, you have to be more aggressive," said one juror.

But Eagles believed the jury should reach verdicts only where all could do so in good conscience. Where some pro-conviction jurors saw obstruction in their opponents, Eagles saw people with perspectives that had to be honored. He himself might not believe the government would fabricate evidence, but he understood how Snow or Hardeman might think so.

Pushing harder for consensus, Eagles told a friend later, would not have succeeded. "It would only have raised the temperature in a very small room." Seeking Common Ground

As the jurors deliberated, they jumped from witness to witness and to the physical evidence in an effort to find common ground. Eagles suggested the group wait until near the end to discuss the perjury counts and Hazel Diane "Rasheeda" Moore, Barry's former girlfriend who participated in the Vista sting. "He said they would be the hardest," said one juror.

But the other charges weren't much easier. "People's tempers were just getting frayed," said Chaires. "I think the whole attitude was 'Forget it. We're not going to agree on anything . . . . Let's get out of here.' "

Deoudes, too, neared his breaking point around the time the two jurors suggested that the substance in Barry's pocket at the Vista wasn't crack. They also argued that the FBI had planted credit cards and checks in Barry's pockets. Jackson-Warren saw evidence of FBI lies when there was a conflict between FBI agents over the color of the evidence bag containing Barry's coat -- one said green, the other said brown.

The night of that interchange, Deoudes approached a marshal to say he was going to send a note to the judge asking to be excused, one juror said. The marshal, according to the juror, told Deoudes not to bother sending a note -- the judge would not let him go. Deoudes declined to comment on the incident.

By Tuesday, Aug. 7, the group was worried. It had deliberated for four days and reached no decision. A marshal told one juror that if they did not do something soon, the judge would call them in. Eagles suggested jumping to counts 12 and 3, the two on which the group seemed closest to consensus.

To nearly everyone's surprise, the vote on Count 12, alleging Barry used drugs with Doris Crenshaw, came off without a hitch. All 12 voted guilty. Some of the jurors looked at each other. Had they heard right? Most perplexing was Snow's vote.

On Friday, Aug. 3, Snow had expressed major reservations about Crenshaw, but he said hardly a word Tuesday. Two jurors later remembered seeing Snow speaking softly with some of the others over the weekend, and wondered whether they had struck an agreement. Snow declined to discuss his vote.

The jury quickly sent a note to the judge announcing a verdict, and then proceeded to Count 3. Lydia Reid Pearson, a government witness, had testified that she delivered cocaine to Barry on the morning of Sept. 7, 1989, at a city building. Nearly everyone agreed that Barry presented a strong alibi that he was elsewhere else that morning.

But Deoudes and Chaires said they wanted to see a videotape of Barry at a city meeting that morning. That request prompted Jones to withdraw her previous guilty vote on the Crenshaw count, setting in motion the awkward courtroom scene in which an obviously confused jury declined to announce its own verdict.

That night, one juror wrote in her diary, "I am ready to write a note to the judge explaining why I need to be excused before I am arrested for assault."

The next morning, an embarrassed jury quickly dispensed with counts 12 and 3 -- guilty and not guilty. But the group immediately ran into trouble again with Count 11 and Count 13, both cocaine possession charges.

Hines and others said witness Darrell Sabbs had looked high on the stand. Chaires said Sabbs -- who testified he used drugs with Barry on Aug. 26, 1989 -- had no agreement with prosecutors, and no reason to lie. The vote remained 7 to 5 for conviction.

There was more movement on the count alleging Barry's drug use with friend Bettye Smith. Testifying under duress after being involuntarily flown from Tennessee, Smith had left a bad impression on some jurors. Dressed in black, with a black hat and glasses, Smith appeared weak and teary on the stand at first, but within minutes had pulled herself together. "The actress," recalled Chaires.

Jackson-Warren and Hardeman were willing to vote guilty on this count, but Jones and Snow refused. Snow, according to one juror, insisted that he would not vote guilty because the indictment charged that the drug use had occurred "on or about" Jan. 1 to Jan. 18, and Smith said they actually might have used the drugs shortly after Christmas 1989. Other jurors argued that the judge had instructed them that the phrase "on or about" meant the prosecution did not have to be exact about the time charged.

Snow, according to one juror, argued, "If you're going to try a man and be prepared to send him to jail, then you should tell what day he was doing wrong on." The vote was 10 to 2 for conviction.

Little Argument
Only the Lewis and Moore counts remained. For all the emotion on the street about Lewis and Moore, the jury room debate was anticlimactic. It was clear where everybody stood.

If there was any chance of a verdict, it was on Count 4, the first possession count involving Lewis. On this count alone, no strong corroborating evidence had been presented to back up Lewis's claim that he and Barry used drugs on Dec. 16, 1988, at the Ramada Inn. Both Deoudes and Chaires said they believed Barry and Lewis had used cocaine that day, but they agreed that it was Lewis's word against Barry's, and that Barry deserved the benefit of the doubt. Only Hall, Noel and Norman held out for conviction.

The next count split evenly. Deoudes tried to make a last effort to sway the group on Count 6, the possession count for Dec. 19, 1988. Monday night football was on television, and James McWilliams -- a D.C. employee and Lewis associate who had gone to the Ramada to lobby Barry for a better city job -- had testified that he had seen many signs of Barry's crack use, but not the pipe in his mouth.

A member of Barry's police security team testified he delivered an envelope to Lewis's room that night on Barry's instruction. Lewis and McWilliams testified that the envelope contained money to buy drugs for Barry, but the officer said he saw Barry stuff only papers into the envelope. That alone, said Jackson-Warren, was enough reasonable doubt for her.

The group took a break. Deoudes, who remained behind, stuffed some cash into an envelope. When the other jurors returned, he asked them to watch as he folded a copy of the indictment and put it into the envelope. He passed the envelope around the table and asked someone to remove the contents. No one found the money, and Deoudes produced it dramatically several minutes later. Jackson-Warren said she still had reasonable doubt. The vote was 7 to 5 to convict.

The remainder of the Lewis votes moved relatively quickly. No one was surprised when the perjury counts split: 7 to 5, 6 to 6 and 6 to 6.

Digging In
Jones was upfront: The Vista sting was entrapment, clear and simple. Other jurors insisted on watching the tape. They stopped scenes and marked their transcripts for the final debate.

Snow said he knew a lot about videotapes and that the poor quality of this one caused him doubts about prosecutors' motives. Jackson-Warren returned to her argument that the government had manufactured the evidence found in Barry's pockets after the arrest.

One juror said Deoudes snapped, "Come on, you guys, they don't make up evidence."

Snow asserted Barry bought the drugs to warm Moore up for sex. If so, Deoudes shot back, why did he head for the door after smoking?

Chaires, attempting to bridge the two views, suggested the sting was a little unethical. But, she added, "the fool went up there on his own volition."

The vote was 6 to 6. It was time to tell the judge they could not reach any more decisions. Finally, a Toast

Deoudes punched his fist in the air when the judge announced a mistrial and released the jurors.

Back at the Compri Hotel in Crystal City, where the jury was sequestered, adversaries Chaires and Jackson-Warren shared a last drink. The beverage was champagne, the toast largely unspoken.

"That was the funny part about it," said Chaires. "Out of the deliberations, we got along fine . . . . I was feeling no pain when I left."

Staff writers Deneen L. Brown, Stephanie Griffith, Retha Hill, Eugene L. Meyer and Tracy Thompson contributed to this report.

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