Lawyers for U.S. District Judge Thomas Penfield Jackson argued yesterday that he rightfully excluded Nation of Islam leader Louis Farrakhan and Bishop George Augustus Stallings Jr. from the Barry trial because their presence in the courtroom would likely send messages of "intimidation," and "racial animosity" to jurors and witnesses.
The American Civil Liberties Union on Monday challenged the judge's exclusion of the two high-profile religious leaders from the courtroom, arguing that the ban unconstitutionally deprived Farrakhan and Stallings of their rights without giving them an opportunity to fight that deprivation at a hearing.
The highly unusual issue, spawned when Jackson barred the two men from the courtroom last week, is before the U.S. Court of Appeals and has become a sub-drama to the drug and perjury trial of D.C. Mayor Marion Barry. The appeals court, which apparently has placed the case on a fast track, has given the ACLU until noon today to respond to Jackson's arguments. The court could issue its decision at any time after the final papers are filed.
In a brief defending the judge's ruling, his lawyers argued that Farrakhan's and Stallings's presence would send a silent and "impermissible message" to jurors and witnesses because of the "widely known and highly controversial views" of the two religious leaders.
The lawyers argued that Jackson had "strong reasons" to exclude both men in light of the mayor's "publicly avowed strategies of seeking a hung jury and jury nullification," the legal term for a jury's refusal to convict no matter how strong the government's evidence. The mayor's lawyers are forbidden to tell the jury about nullification, but defense lawyer R. Kenneth Mundy indicated months ago that it would be part of his strategy.
Jackson's lawyers relied heavily on news reports of Farrakhan's and Stallings's statements about the trial. Farrakhan, they argued, has said that Barry's drug arrest is an example of "racially motivated moves" by the government "to weaken black elected officials." Stallings also has said that the drug arrest was racist and proclaimed that the Justice Department, rather than Barry, is on trial.
Those statements combined with Barry's avowed trial strategy, the lawyers asserted, "strongly suggests that the reason" for the appearance of both men "was not to view the proceedings or to show generalized concern, but instead to send a forbidden message to the jury and witness."
The prejudice of that message was heightened by several factors, the lawyers argued. For instance, both Farrakhan and Stallings would have sat in the front row, an area reserved for those who attend on passes provided by the defense, the lawyers said. Hazel Diane "Rasheeda" Moore, a key government witness, was on the witness stand on the days Stallings and Farrakhan sought entrance.
In these circumstances, the lawyers argued, Jackson rightfully exercised his wide discretion to exclude spectators to keep trials free from "distraction, disruption and intimidation."
While the ACLU had argued Monday that Jackson's ruling violated the right to a public trial, Jackson's lawyers argued that with this "limited" exclusion, the trial remains one of the most public in the city's history.
Arthur B. Spitzer, of the ACLU's local chapter, said yesterday he found the judge's arguments "astonishing and dismaying." The idea "that a person can be excluded because of controversial views on racial matters . . . lends an unfortunate appearance of reality to the very accusations that reverends Farrakhan and Stallings are making about the judicial system," Spitzer said.
"Under that standard, everyone from Martin Luther King Jr. to Jimmy the Greek might be barred from a courtroom," he said. "This is not what the Constitution contemplated when it guaranteed the right to a public trial."
Neither Stallings nor a spokesman for Farrakhan could be reached for comment. Spitzer is representing both men, as well as Barry, in their appeal.
The judge is being represented by John D. Alcock and others from the D.C. firm of Shea & Gardner. Judges usually are represented by the Justice Department, but in a case such as this, where a conflict might exist, the federal government may pay for private counsel.
The U.S. Attorney's Office also filed arguments in the case yesterday, but sidestepped the issue of Farrakhan's and Stallings's racial views. Instead, prosecutors joined Judge Jackson in a procedural attack on the ACLU's challenge, arguing that the appeals court does not have jurisdiction in the case.
While lawyers argued the legal merits, about 50 Barry supporters rallied outside the courthouse, with songs and prayers, voicing support for the mayor and derision for Jackson and his exclusion order. The group was led by Stallings, the Rev. James L. Bevel and Abdul Alim Muhammed, the national spokesman for Farrakhan.
As he was leaving for the noontime recess, Barry climbed out of his car near the courthouse entrance, embraced Stallings and Muhammed, waved and gave the black power salute to a crowd of reporters, supporters and tourists.
Staff writer Ruben Castaneda and researcher Matthew Lee contributed to this report.