One of the two prosecutors in the drug trial of D.C. Mayor Marion Barry accused the mayor yesterday of trying to "infect" potential jurors by falsely accusing the government of leaking to a television station a copy of the FBI tape that allegedly shows Barry smoking crack at the Vista Hotel.
Meanwhile, individual questioning of potential jurors in the case went so slowly yesterday that U.S. District Judge Thomas Penfield Jackson told lawyers at the end of the day that "we are way, way behind schedule." Only 12 of a pool of 250 potential jurors were questioned.
There also were indications yesterday that some locally prominent Democrats, including Del. Walter E. Fauntroy (D.C.) and Jesse L. Jackson, were attempting to establish contact with Republicans in Congress and Bush administration officials to encourage a plea agreement between Barry and U.S. Attorney Jay B. Stephens.
Some friends of Barry's hope that opening lines of communication to GOP leaders and senior Bush administration officials may get Stephens to soften his stance in plea negotions, sources said. Stephens has insisted that Barry plead guilty to at least one felony count, which virtually would ensure at least a short jail term for the mayor.
A number of Barry associates privately have counseled Barry that a plea agreement would spare him and the city a long and potentially racially divisive trial.
In another development, a courthouse source said Judge Jackson stated late yesterday that he was concerned upon learning that Barry campaign manager Anita Bonds, listed by the defense as a potential witness in the trial, spent part of the afternoon at Barry's side at the defense table.
Barry's attorney, R. Kenneth Mundy, said yesterday that Bonds, a longtime political adviser to Barry, was helping compile statistics on the jury pool, and that her presence was proper as long as she did not hear any testimony in the case. Prospective witnesses are not supposed to be present in court during testimony or presentation of evidence, but their presence during jury selection -- while unorthodox and rare -- is not improper, local lawyers said.
Barry entered the courtroom on the second day of his trial smiling at the media corps and beaming at supporters. During the day, he intently studied the demeanor of each potential juror and took notes with the help of Bonds.
About Bonds's presence at the defense table, Stephens said, "We have no immediate comment, but this is a matter more appropriately addressed in court."
There was another flurry of controversy yesterday -- this one concerning reports on WUSA-TV (Channel 9) that a copy of the Vista Hotel videotape had been obtained by WRC-TV (Channel 4).
Prosecutors and defense lawyers have told Jackson in court that the only people who have copies of the tape are the prosecutors and members of the defense team, lawyers Mundy and Robert W. Mance.
But in an interview on WOL radio on Monday, broadcast on cable television nationwide, Barry said that Channel 4 "has gotten a copy of the tape from the prosecutors" and that it is part of a government campaign to "manipulate" him out of office.
Assistant U.S. Attorney Richard Roberts counterattacked in court yesterday, telling Jackson that Barry was deliberately trying to manipulate the trial. Roberts said it was "important" to inform the court of Barry's remarks. "His comments were, aside from being, we think, untrue, designed to attempt to infect the jury pool," Roberts said.
Roberts did not ask Jackson to take any specific action. The judge did not respond to Roberts's remarks.
In a later news conference, Stephens denied that the government had any role in leaking the tape. He said the government's copy of the tape "was locked up securely. I can assure you of that."
Both the prosecution and the defense have told Jackson that they did not leak the tape to anyone.
Kris Ostrowski, the news director at Channel 4, declined to comment on Channel 9's report. "Our policy is always that we can't comment on anything that we have not broadcast on the air, as much as we might like to."
Channel 9, quoting "sources close to the mayor," reported last night that an employee of Channel 4 obtained a copy of the Vista tape "through improper means."
The Channel 9 report said that an employee of Channel 4's news division "managed to pirate" the tape. Channel 9 reported that someone connected to Barry's defense team was playing the Vista tape for a Channel 4 representative who recorded the tape without the knowledge of the defense team person.
Channel 9 also reported that Channel 4 then called the Barry defense representative to say it was going to broadcast the tape. The defense person became infuriated, Channel 9 reported, threatening to sue Channel 4 for "breach of promise."
Asked by The Washington Post last night whether he had given or shown Channel 4 the tape, Mundy said he had no comment. In the report on Channel 9, Mundy said, "Did I give one? No."
Yesterday marked the first day reporters and the public were allowed into the courtroom, as potential jurors were called in one by one to face questioning from Jackson, Mundy, Roberts and Assistant U.S. Attorney Judith Retchin.
By the end of the day, only 12 potential jurors had undergone interviews, which tended to focus on such issues as attitudes about undercover investigations and electronic surveillance; previous brushes with the law, if any; feelings about the government; and exposure to news media accounts about the case.
Several of the 12 reported on their questionnaires that they were unaware of publicity surrounding the case, only to amend those statements when asked about them in open court.
For instance, Caroline Bass, a retired school crossing guard, told Roberts that she had not heard anything about the Barry case -- except, she added, on television.
By the end of the day, two prospective jurors -- a chauffeur and an employee of the D.C. Office of Mass Transit -- had been excused for cause, both on the motion of the government.
Both had answered "no" to question No. 62 in the lengthy questionnaire they had filled out previously, asking whether they had ever been charged with a crime. But when questioned by Roberts, both acknowledged those answers were misleading. The chauffeur said he had been charged with second-degree burglary in 1976, and the D.C. employee said she had been charged with theft and marijuana possession in the last four years. Those charges were dropped.
As the second day of jury selection proceeded in court, pro- and anti-Barry demonstrators spent a second day outside the courthouse.
"I'm here to tell black and white, gray, green or whatever, that we have to support our mayor," said Florence Smith, who was also there Monday and who identified herself as a member of the National Welfare Rights Organization. "If he goes down, we go down." Smith was accompanied by five or six people.
Deborah Frisby and John C. Womble, both with the Coalition of Concerned Citizens for a Better D.C., were the only ones demonstrating against the mayor. They carried signs reading, "Say No to Mayor Barry."
"Yesterday, I saw the Guardian Angels out here on TV defending the position that any citizen living in D.C. should be taking. I never liked people doing my fighting for me. That's why I'm here," said Frisby.
Sharing the same small area along Constitution Avenue NW, the two groups of demonstrators crossed paths each time they reversed direction. When they did, their words were harsh and loud.
Passersby stopped. A bicycle messenger rode slowly by, stopped, listened and joined the Barry faction. So did Joe Jackson. "I got 15 kids," said Jackson, "And they all got good jobs through the mayor."
Staff writers R.H. Melton, Michael York, Barton Gellman and Elsa Walsh contributed to this report.