It seems that the Barry verdict has left a bad taste in the mouths of a lot of people. But in reality the verdict only kept sour what the vast majority of the public already was tasting from the night of the Vista arrest. From that night on, most people were shocked equally by the mayor's conduct and apparent arrogance and by the conduct and arrogance of the government. That balance of bad feelings launched the case, invaded every day of testimony and ultimately created the standstill draw verdict -- one misdemeanor conviction, one misdemeanor acquittal and lots of hung counts. Those surprised by the verdict have not focused on the hard feelings that the arrest and prosecution produced against both sides right from the start.
The mayor has addressed his conduct, and now that he has announced his intention to run for office again, he will continue to address it. The political process will decide if his explanations suffice and whether he has paid a sufficient price. But the government has not explained itself, and given the way prosecutorial decisions are made in private, it may never have to.
The government's fault differs for various people. For some the problem is with stings in general. For the government to set someone up, no matter what the potential crime or reason, strikes some as being absolutely wrong. For the majority, however, the trouble is that so much time and effort were spent to set up the mayor on what amounted to simple drug possession charges. Sure, the government will point out that there were felony perjury charges included in the indictment. But, unlike the normal Justice Department case, here the felonies really were the tail that tried to wag the misdemeanor dog. The jury never lost sight of the fact that for all of the videotape, all the huge charts and the dozens of witnesses, the government had spent enormous amounts of money and time leading up to a 10-week trial on possession of narcotics. It was not happenstance that the mayor's talented defense attorney, R. Kenneth Mundy, described the government during his closing argument as "using a hammer to try to kill a fly."
Inside each of us is the understanding or perhaps fear that almost everyone has a temptation point, a place and time where, if properly baited, we will bite. To many, this was the unsettling part of the Barry trial. A man with obvious weaknesses for women, alcohol and drugs was given all three until he fell into the trap. He may have gotten there himself, but what was unsettling was that the government worked so hard to provide the last push. In the name of investigating public corruption and abuse of office, the government caught an addict. And rather than throwing the small fish back and waiting for the real catch to come, it tried to fool the public into thinking that it had a whopper.
So the case started with a strong dislike for the government's conduct. Balancing this unsettling feeling was the fact that the mayor did not come off too well either. Not surprisingly, the government worked furiously to throw some of its mud on him. The strategy succeeded. The trial did not help engender sympathy for a man who flouted the government after his close call at the Ramada, who was charged with being unfaithful to his family and who was accused of abusing the women he was with.
The result of all this was the final draw, best evidenced by the mixed verdict rendered by jurors left between the rock of disliking the government and the hard place of disfavoring the mayor.
This result was not inevitable. It was caused by the government bringing the kind of case, when it did, against the backdrop that it had created. For years Justice Department leakers indicated that the Barry administration was corrupt, that it abused authority and that it broke the rules. But when the Justice Department had to put up, its actual charges came a great deal short. Having made the claims of more serious wrongdoing under the cloak of leaks and innuendo, the government owed the public and, indeed, the mayor the case it had promised. Those upset with the government were not condoning cocaine use, they were objecting to the government's bait and switch.
What is puzzling is that the government appears to have had the chance to bring the case at which it hinted. Among the trial evidence, for example, were the uncontroverted claims that the mayor had given Rasheeda Moore no-bid contracts. Rather than providing him the chance to prove the obvious, that he was chemically dependent, they could have tested what was supposed to be the real point of their investigation -- whether he abused the power of his office.
The "proper" sting would not have been a picture of Moore giving the mayor a drink and showing some leg to get him to try cocaine. It would have been her pleading with him for yet another no-bid contract or some other government perk. One can easily envision the scene in which Moore raised her need for a job, her lack of qualifications and her desire for the mayor to help her out. He might have taken this bait or left it on the table. Whichever he did, however, would have shown a great deal more about his character and the quality of the government's case than the elaborate and costly trap that ultimately proved no more than what the government and public already knew.
The government knew of the prior work given Moore, and she was still more or less willing to cooperate. It appears that its own impatience caused it to forgo the real case for the one that was easier and quicker to make. But easier is not supposed to be the measure of law enforcement, and quicker is not the proper goal of government investigations.
So the government's own abuse of power actually cost it the exact charge -- abuse of power -- that it wished to level against the mayor. The government's conduct created the draw with which it now must live. As U.S. Attorney Jay Stephens ponders how to explain the inevitable decision he must make not to try this case again, the explanation should include a commitment not simply to try cases better but to try better cases.
The writer, an assistant to the attorney general in the Carter administration, is a criminal defense lawyer in Washington.