Potential jurors in the drug and perjury trial of D.C. Mayor Marion Barry split sharply yesterday in their opinions about the mayor and the FBI sting at the Vista Hotel that led to his arrest in January.
One man declared, "I wouldn't make a good juror . . . because my perception is that the man is guilty." Another panelist, Dorothy Delaney, said she could not obey the judge's instruction to treat the FBI videotape of the mayor as lawful and legitimate evidence. "I wouldn't take a job like that," she said.
Both were excused from further service, along with seven others of the 22 examined yesterday. In all, 60 jurors have been examined or excused without examination, of whom 38 remain eligible to hear the case.
Meanwhile, close associates of the mayor said that Barry may be prepared to announce within a matter of days that he will not seek a fourth term as a prelude to a possible plea agreement with federal prosecutors.
Barry, whose trial on 14 perjury and drug charges completed its fourth day of jury selection, said through his press secretary that he has no "immediate" plans to disclose any decision about reelection.
However, two knowledgeable sources said the mayor could announce as early as this weekend his intention not to run again for the District's highest office.
Barry has confided in friends for some time that he is prepared to abandon his reelection campaign, and has publicly stated that he could earn a living next year in a field other than politics.
In another development, the legal director of the local chapter of the American Civil Liberties Union yesterday called on U.S. District Judge Thomas Penfield Jackson to reject any plea agreement that includes a promise from Barry to resign or not seek reelection. Such an agreement would be "improper and inappropriate," said Arthur B. Spitzer, legal director of the ACLU of the National Capital Area.
"It's up to the people to decide who their elected leaders should be, not for prosecutors," Spitzer said.
Spitzer said the ACLU plans to file a motion as amicus curiae, or friend of the court, formally asking the judge to reject any agreement in which resignation or candidacy is used as a "bargaining chip."
George Washington University law professor John F. Banzhaf III filed a motion to act as a friend of the court, also seeking rejection of any such plea agreement.
The pressure on Barry to make a public announcement to not seek a fourth term increased substantially this week as Del. Walter E. Fauntroy (D-D.C.), who is running for mayor, and Jesse L. Jackson called on Barry to reach a plea agreement with U.S. Attorney Jay B. Stephens.
Jackson has been in daily contact with the mayor -- the fellow Democrats had lunch yesterday -- and on Wednesday the civil rights leader urged Barry to announce publicly that he would not run again. Democratic Party sources said it was highly unlikely that Jackson would have issued such a call without an understanding that Barry would make such an announcement in the near future.
Lurma Rackley, Barry's press secretary, said the mayor "has no immediate plans to say anything one way or the other about his reelection plans."
Inside Courtroom 2 of U.S. District Court, the pace of jury selection continued to drag despite a "five-minute rule" laid down by Judge Jackson to cut short questioning by the lawyers. With four days gone out of the five Jackson had scheduled to choose a jury, examination of less than a quarter of the pool of 250 randomly selected citizens was completed.
"I'm prepared to go all next week with jury selection," he said before departing for the day.
The process of jury questioning, known as voir dire, aimed at selecting 12 jurors and six alternates for trial, has been far more extensive than for most defendants, though consistent with other highly publicized cases. Lawyers for both sides have been given unusual freedom to question the prospective jurors, and patterns emerging from those questions have begun to hint broadly at their strategies for the trial.
Chief defense attorney R. Kenneth Mundy has maintained a pleasant and easygoing demeanor, and has rarely pressed for information. In several instances this week, he has declined to ask questions at all.
The prosecutors, for their part, probed repeatedly for signs that the panelists disapproved of surreptitious FBI videotapes taken at the Vista or felt the mayor had been targeted because of his race.
Assistant U.S. Attorneys Richard W. Roberts and Judith E. Retchin used questions to the panelists to preview major themes of their case. Roberts asked each juror the following question:
"Suppose a number of people made allegations that a public official had been using drugs. Do you think there's any unfairness in law enforcement officials running an undercover operation to see if there's any truth to the allegations?"
Most panelists gave some version of an older white man's answer: "It depends on the facts."
One panelist, a D.C. corrections officer, was a good example of the difficulty of predicting a juror's leanings. In the prosecution's favor, her job was in law enforcement, and she said she had split up with her husband because of drugs. It emerged from questioning, on the other hand, that she worked for Barry's reelection campaign in 1982.
"When you worked for Mr. Barry's election," Retchin asked, "that was because he was the man you thought should be mayor?"
"No," the woman replied. "I did it because it was an honest dollar. I worked for Mr. Barry because of the money."
Mundy moved to excuse her, saying her husband's alleged drug problem had left her bitter. The judge denied his request.
Nearly the only unanimous sentiment among the panelists was an abiding skepticism about news coverage of the case.
"They're trying to convict the mayor," one woman said.
"Who is 'they'?" Jackson asked.
"The media," the woman replied.
Often tedious, the long day of questioning was frequently leavened with humor. One juror, asked whether his brother-in-law had deserved to be found guilty of armed robbery, replied "definitely" with such conviction that the galleries erupted in laughter. Another, asked a routine question about her age, attempted to find refuge in the Fifth Amendment.
"My date is the 12th," she said. "The rest is on the Fifth."
"The rest is what?" Judge Jackson asked in disbelief.
"I stand on the Fifth," she replied.
Jackson never did get an answer.
Staff writers Tracy Thompson, Saundra Torry and Michael York contributed to this report.