It's not the mayor's conduct, but the government's.
Forsome, it is a relatively simple matter to determine the guilt or innocence of Mayor Marion S. Barry Jr. Indeed, there are persons all over Washington and throughout the nation who are absolutely and adamantly convinced of the outcome Barry's trial should have. For me, however, the trial's result is less significant than are some of the troubling issues raised by the case.
Because I have had the temerity to speak on those issues, I have been subjected to a barrage of inflammatory personal attacks. I have been branded a conspiracy-mongering demagogue, a paranoid, a spreader of "falsehood," and charged with engaging in "imitative incitement," to cite a few of the terms writers more interested in heat than light have used.
My attempt to defend not Barry, but our Anglo-American concepts of judicial fairness and restraint in the application of the state's awesome power against the citizen -- to defend, in short, the Constitution, the Bill of Rights and truth, justice and the American way -- has been met with ferocious attacks from an intellectual firing squad directing its fire against one who does not have the press's power to reply.
Most of these critics take exception to what they understand me to have said in my keynote address to the 81st annual convention of the NAACP in Los Angeles. I do not recall a single one of these attackers having attended the convention. Not one has sought an interview for elaboration or clarification or even a copy or recording of the speech.
In fact, that speech ran to more than 5,000 words and dealt with a number of issues: recent Supreme Court decisions that have gutted affirmative action, the push to get the Civil Rights Act of 1990 enacted, the need for heightened black self-help efforts, the S&L scandal -- and the disproportionate and selective prosecution of black elected officials. A mere 38 words dealt indirectly with the Barry situation. Just how those 38 words could become such an albatross, I will never understand.
Here are some points from that speech that you may not have read about:
"I'm calling today for a moratorium on excuses. I challenge black America -- all of us to set aside our alibis."
"We must take responsibility for our own lives; for our own destiny. We must not wallow in self-pity and blame someone else ... "
"We black Americans must rebuild the altars of strong family support, renovate community pride and unity, turn to each other and not against each other, say 'no' to dope and 'yes' to hope and renounce the insidious plea of dope dealers."
"We must teach our young people that having babies without a job, education or marriage is not a sign of maturity, but a manifestation of irresponsibility ... "
You may not know I said those things. If you only read sensation-seeking news accounts or inflammatory commentaries, you would believe that I and other black leaders spend our time in "the cultivation of the aura of victimization and the denunciation of victimizers," to quote one of my detractors.
At the same time, I apologize not one whit for demanding that the larger society meet its responsibilities. Government and the private sector have a clear duty to redress the unfair balance that their policies of discrimination against and exclusion of African-Americans have helped to create and sustain.
To return to Mayor Barry: Let me make it clear that I have expressed no opinion as to his guilt or innocence other than to remind Americans, from the perspective of one who has spent a lifetime in the law, that our legal system presumes the innocence of every accused person until guilt is established in court. Marion Barry's guilt or innocence will be decided, as it should be, by a jury.
For the record, should anyone care for the truth: At no time, in no forum, have I condoned drug use by Marion Barry or anyone else. At no time have I "defended" Marion Barry. If the mayor is guilty, he must lie in the bed he made and accept his punishment.
However, after years as a public defender and criminal court judge, I understand that if prosecutors set out to "get" someone, they usually succeed in securing an indictment. I have told journalists that there exists among black Americans a perception that black elected officials are subjected to more intense scrutiny and greater harassment than are others. That feeling goes back at least 30 years to the days of Rep. Adam Clayton Powell (D-N.Y.). My critics, who use the Barry case to attempt to disprove any allegations of racism, are strangely silent about the way in which Andrew Young was put through the wringer or on the tribulations of Birmingham Mayor Richard Arrington.
The Barry case has been marked throughout its almost decade-long history by the expenditure of inordinate amounts of time, money and energy in the search for wrongdoing on Barry's part. Even if, as has been suggested, the government spent only $4 million on this investigation, that figure seems excessive in the pursuit of recreational drug abuse, which is the essence of the government's case.
I believe that the government's priorities have been out of kilter, and the money, time and energy invested in the Barry case have been disproportionate, especially in light of the government's claim at one point that it lacked resources to pursue and prosecute the connivers and thieves responsible for the $500-billion rip-off of the taxpayers in the savings and loan scandal, a fiasco that will cost every American thousands of dollars.
I challenge prosecutors to explain by what reasoning they decided to hunt this plagued man. There are in Washington alone, not to mention the rest of the nation, thousands of mid-level drug dealers and other traffickers. How can the government justify the expenditure of millions to catch one user, while the streets of the capital have become a drug bazaar and a killing ground?
Well, it is argued, Mayor Barry is a person of celebrity, a role model. So are the many rock singers, film actors, and athletes who in recent years have confessed drug use. Few if any such persons have been pursued and prosecuted as has Barry.
Even conceding that Barry's faults are many and troubling, anyone would be a bad role model who has been demonized as he has been through leaks from grand juries and investigative authorities. No hint or whisper of wrong-doing by Marion Barry seems to have gone unshared with a press corps avid for such news.
Prosecutors have discretion in the crimes and offenders they will prosecute. How does the U.S. attorney's office justify its zealous pursuit of this one alleged user? Was it because prosecutors, try as they would, were unable to pin charges of official corruption -- graft and abuse of office -- on Barry and then took an "any-stick-to-beat-a-dog" approach?
There also is the question of the "sting" at the Vista Hotel. I and others have questioned the propriety of using a sexual lure in the operation. That is a tactic far better suited to police-state societies than to open and above-board law enforcement. I share the view expressed long ago by Justice Oliver Wendell Holmes:
"I think it less evil that some criminals should escape than that the government should play an ignoble part."
There is a moment in Robert Bolt's drama "A Man for All Seasons" when Thomas More asks his son-in-law, "Would you cut a great road through the law to get at the devil? Suppose the devil turned round on you, where would you flee, all the laws being flat? I'd give the devil benefit of law for my own safety's sake."
The thoughts are a tribute to the rule of law. That is what the NAACP has sought for 81 years.
The simple issue is Marion Barry and whether he used drugs and lied about the fact. A jury will decide that point. The broader and more complex issues are governmental priorities, the wisdom of allocating badly needed resources in the pursuit of one addict, and government tactics -- the depths to which government will stoop -- to conquer and catch whom they want.
All black Americans want is justice and equity, which America has not always given during 240 years of slavery and more than 100 years of Jim Crow. America would make a grave mistake, and a sad one, to assume that black America will stand idly by and let James Crow, Esquire, continue his grandfather's legacy in a more subtle and crafty way.
The writer is executive director of the National Association of the Advancement of Colored People.