From the outset, D.C. Mayor Marion Barry's defense lawyers said their case would be short. Only a few witnesses, a handful of exhibits, they said. Their real defense, the lawyers maintained, would be in cross-examination of prosecution witnesses.
If defense lawyers R. Kenneth Mundy and Robert W. Mance tried to lower expectations beforehand, it was for a good reason. They knew it would be virtually impossible to mount a count-by-count defense to the government's case, especially if they were unwilling to let Barry testify.
Instead, Mundy and Mance designed a defense the way lawyers do in most criminal cases: They looked for the weakest portions of the prosecution's evidence, attacked them and hoped whatever doubt they created would spill over to the remaining charges.
For a safety net, Mundy and Mance devised a way to do indirectly what U.S. District Judge Thomas Penfield Jackson had forbidden them to do outright: claim that Barry was the victim of government misconduct. The way to call the jury's attention to the issue, the lawyers decided, would be to mount an aggressive challenge to the government's tactics in the Vista Hotel sting of Jan. 18. The defense's cross-examination of FBI informer Hazel Diane "Rasheeda" Moore, who lured Barry to the Vista Hotel, lasted three days.
The defense hoped jurors would be so offended by the government's dealings with Moore that they would acquit Barry regardless of the overwhelming nature of the evidence. The idea was a last-resort defense, but possibly was the mayor's best chance.
Mundy also used his cross-examination of Moore to suggest the basis for a more traditional defense: an alibi. Moore told jurors that she had used drugs with Barry more than 100 times. But she was vague on dates.
The only two days of which she was certain were July 4 in 1986 and 1987. For some reason, Assistant U.S. Attorney Judith E. Retchin did not exploit that testimony by explaining Independence Day also is Effi Barry's birthday.
But Mundy wasted no time exploiting Moore's imprecision on dates. He suggested that prosecutors were being puposefully vague because Barry, as mayor, had an easily provable schedule, and thus a ready alibi, on specific dates and times.
"Ms. Moore, isn't it a fact you know Mr. Barry travels quite a bit and is out of town quite a bit?" Mundy asked. "Is this one of the reasons you are not being precise about dates?"
With that foundation, the defense repeatedly tried to establish an alibi for Barry on a single count, the cocaine possession charge based on the testimony of crack dealer Lydia Reid Pearson. The object here, as with the Vista, was to have a multiplier effect. Mundy doubtless will argue that if jurors cannot believe this possession charge, so specific in time, they should not believe the others.
Throughout the case, Mundy and Mance have appeared to struggle keeping up with the details in the case and in the prosecution's evidence. At one point, an almost exasperated Mundy tried to explain why he wanted to recall government witnesses in his own case, after he had cross-examined them.
Mundy told Jackson that he had been overwhelmed by the work, and that it had been impossible to prepare such a complex case in the time available. "As the court knows, there was very little turnaround time . . . . " Mundy said. "There were virtually 50 or 60 potential witnesses that we could not conceivably have run down and questioned in the time open to us . . . . A lot of the information we are developing is coming to us as this case has unfolded, sometimes after the government's witnesses have testified."
Despite all the problems, the defense scored several times. Jackson let Mundy show a videotape of U.S. Attorney Jay B. Stephens asking prospective witnesses against Barry to come forward. The alternative to cooperation, Stephens said, was prosecution and prison.
Defense lawyers also presented a human side of Barry to the jury -- showing him playing with his son Christopher on the beach -- and a mayoral side, performing official duties.
Mundy and Mance also introduced evidence of FBI intimidation. Two Virgin Islanders, Albert and Carmen Benjamin, said they felt pressured by investigators after saying they saw no drugs on a 1986 cruise. But even that minor victory was tempered when Assistant U.S. Attorney Richard W. Roberts elicited from Albert Benjamin that he had enjoyed a sumptuous dinner with the agents who he testified had been so intimidating.
Almost as notable as what Mundy did with his defense is what he was not permitted to do.
Mundy dramatized the shackles on his case by provoking Jackson into chastising him, and using questions he knew were out of bounds to draw prosecutors into making objections. When Jackson sustained the objections, Mundy responded with a grimace or a roll of the eyes. "We're trying to signal to the jury that we have an important defense that we're not being allowed to present," said one source close to the mayor.
Assistant U.S. Attorneys Retchin and Roberts were well armed with arguments for excluding evidence proposed on Barry's behalf. Jackson usually kept the contested evidence out. So Mundy had difficulty keeping the central promise of his defense: to put the government on trial instead of Barry.
"Seven years ago," he said in his opening statement, "the government made a determination and a quest that it was going to get Mr. Barry, and the government was going to go to any length and any expense, expense that you will hear about, exorbitant expense, to make a case against Mr. Barry."
Mundy knew when he said those words that he might not be able to prove them. Jackson, in a pretrial ruling, had left slender hope that he would let Mundy introduce evidence of the probe's cost and duration. Jackson did say Mundy might be able to use such evidence to show the bias of government witnesses -- but in the end, the judge excluded that evidence.
Jackson has barred mention of several assertions Mundy wanted to make to raise suspicions about the authorities and their witnesses:
That Charles Lewis, the most important witness against Barry in the three felony charges of perjury, had pursued a drug-dealing relationship with Rayful Edmond III. Mundy, who foresaw that Jackson would not permit the evidence, stopped just short of blurting out the assertion before the jury.
Was it not true, he asked an FBI witness, that Lewis was "hooking up with a very notorious D.C. drug dealer?" Teasing the jury and public, Mundy managed to say in open court, "I would use the name but . . . " before being called to the bench. Jackson said Edmond's name was too inflammatory to be mentioned before the jury.
That lead FBI investigator Ronald Stern, in Mundy's words at a bench conference, heads a secret FBI "assault force" against black elected officials. Law enforcement officials vehemently denied that and other accusations against the FBI that Mundy made, and they pointed out several factual errors in his statement. Mundy knows reporters read transcripts of bench conferences, and he succeeded in getting these charges aired through the media.
That a D.C. police officer saw government witness Pearson at a crack house the week of her testimony. Pearson -- the only witness for a charge that Barry had cocaine on Sept. 7, 1988 -- testified she no longer was involved with drugs. Jackson did not allow Mundy to offer evidence to the contrary, ruling that it wasn't relevant to show bias against Barry.
That Moore offered $5,000 to government witness Carole Bland Jackson to corroborate her account of drug use in a Southwest apartment. Roscoe Jackson, a convicted felon who is Carole Jackson's estranged husband, was ready to testify that his wife had told him about the offer. The judge ruled the testimony was inadmissible hearsay.
On Thursday, a week into his defense, Mundy spoke of his frustration when the jury was out of the room.
Ostensibly, Mundy was "making a record" for any future appeal on Barry's behalf. He also was telling the judge, in front of the media, that he felt handcuffed, and was making a plea for freedom of movement.
"The court has ruled," Mundy said, "that we would not be able to introduce evidence that Mr. Barry was targeted, that he was selectively prosecuted . . . and that we would not be able to show . . . the length, intensity and expensiveness of the investigation . . . . You have also ruled pretrial that we would not be permitted to show any excessiveness or any overzealousness or any endangering of Mr. Barry's health or life . . . .
"You have also ruled that we will not be permitted to show that this is a one-of-a-kind case in which the government provides the drugs . . . and the drugs are distributed by the government . . . . "
UPDATE ON THE BARRY TRIAL
Following are the 14 charges against D.C. Mayor Marion Barry and a summary of the evidence. The defense rested its case Friday, and prosecutors said later in the day that they expected to call no more witnesses in rebuttal when the trial resumes tomorrow.
Conspiracy to possess cocaine, fall 1984 to Jan. 18, 1990.
Because every alleged act of possession is part of the conspiracy case, most of the prosecution's evidence on counts 2 to 14 is relevant. Additional evidence: logs of telephone calls Barry received from alleged co-conspirators and testimony by Hazel Diane "Rasheeda" Moore about "more than 100" episodes of drug use for which Barry has not been separately charged.
D.C. police Sgt. James Pawlik testified that, between June 1986 and January 1990, Barry made more than 2,000 calls from his car phones to 10 of the alleged co-conspirators.
Possession of cocaine, November 1987.
Georgetown restaurateur Hassan H. Mohammadi testified that, at Barry's request, he delivered cocaine to the mayor at Barry's office in the District Building just before Barry left town for the Bahamas. He also testified that he met Barry in Nassau and shared cocaine with him there. Another witness, Theresa Southerland, testified that she too used cocaine with Barry on the trip.
Possession of crack cocaine, Sept. 7, 1988.
Lydia Reid Pearson testified she sold three $30 bags of crack to Barry at the Frank D. Reeves Center on Sept. 7, 1988, the date written on a job application she said she gave to Barry the same day.
Much of the defense case was devoted to attacking Pearson's testimony that she met Barry shortly after 10 a.m. on this day. Barry's lawyers called Clifton Roberson, a member of Barry's staff, who said he, not the mayor, received Pearson's job application. Three defense witnesses testified they saw Barry at a Safeway opening in Northeast Washington about 10 a.m. that day, and two more witnesses, including D.C. Fire Chief Ray Alfred, said Barry attended a fire department meeting at 10:40 a.m.
In rebuttal, prosecutors challenged Roberson's testimony, presenting an absent-without-leave form that purported to show Roberson was out of the office between 8:30 and 10:30 a.m. that day. The defense wants to recall Roberson to dispute the form. Possesssion of crack cocaine, Dec. 16, 1988.
Charles Lewis testified that Barry arrived for a visit at a downtown Ramada Inn carrying crack. Lewis said they smoked it. Barry's defense tried to discredit Lewis -- on this and the following counts -- by eliciting inconsistencies on details and emphasizing that he testified against Barry in the hopes of a more lenient sentence for his own drug convictions.
Possession of crack cocaine, Dec. 17, 1988.
Lewis testified that Barry again brought crack to the Ramada, this time in the cuff of a trouser leg. The two of them, Lewis said, improvised a crack pipe from a sherbet glass and aluminum foil.
Possession of crack cocaine, Dec. 19, 1988.
Lewis testified that Barry sent $100 to the Ramada so that Lewis could buy crack. Lewis said he bought two $20 packets of crack and invited James McWilliams to meet Barry in the hotel room.
He said the three men watched a Monday night football game, with Barry joining Lewis in the bathroom periodically to smoke crack. McWilliams testified that he did not see Barry smoke crack but saw him with smoking paraphernalia and smelled the smoke.
Barry's defense tried to discredit McWilliams by pointing out that he had struck a deal with prosecutors.
Possession of crack cocaine, Dec. 22, 1988.
Lewis testified that he offered crack cocaine to a Ramada maid, who declined and told her supervisors, who in turned summoned the police to investigate. Undercover officers were about to approach Lewis when the hotel manager discovered that Barry was in the room and asked the officers to leave, a hotel executive testifed.
Lewis testified that Barry brought a crack pipe in an overnight bag and that the two men smoked crack with it.
This charge centers on Barry's denial, in January 1989 grand jury testimony, that he knew anything about Lewis's involvement with drugs. The evidence includes Barry's tape-recorded testimony, contradicted by the testimony of Lewis and McWilliams in Counts 4, 5, 6 and 7. Four Virgin Islands women gave evidence in support of Lewis's testimony that Barry observed or participated in Lewis's drug use. During cross-examination, Barry's defense called attention to inconsistencies in the witnesses' accounts.
For the defense, Barry security guards James L. Stays and Ulysses Walltower and former member Warren Goodwine testified they saw no evidence of drug use by Barry or Lewis during the March 1988 Virgin Islands trip on which, Lewis testified, he and Barry used cocaine.
The defense last week recalled Lewis, trying to prove that the Virgin Islands women were prostitutes provided by Lewis. Additionally, the defense called Albert and Carmen Benjamin, who said they saw no drug use on a 1986 cruise they took in St. Thomas with Lewis, Barry, Moore and Lewis friend Jonetta Vincent. In rebuttal, prosecutors called the skipper of the boat, who testified he smoked marijuana on board with Lewis and Barry.
This charge centers on Barry's denial in grand jury testimony that he ever gave Lewis any drugs. The evidence is Barry's tape-recorded testimony, contradicted by the testimony of Lewis and McWilliams in Counts 4, 5, 6 and 7.
This charge centers on Barry's denial in grand jury testimony that he ever received any drugs from Lewis at the Ramada. The evidence is Barry's tape-recorded testimony, contradicted by the testimony of Lewis and McWilliams in Counts 4, 5, 6 and 7.
Possession of cocaine, Aug. 26, 1989.
Darrell Sabbs testified that he used cocaine with Barry on this date while he was a guest at a downtown hotel. Under cross-examination, Sabbs conceded he has a poor memory for dates, but prosecutors introduced Sabbs's hotel bill, which showed a call to Barry on Aug. 26.
Possession of cocaine between Nov. 7 and Nov. 10, 1989.
Barry associate Doris Crenshaw testified that she used cocaine with Barry at her room in the Mayflower Hotel during a trip she made to Washington in fall 1989. Prosecutors introduced a hotel bill showing a call to the mayor that corroborated her testimony.
Possession of cocaine between Jan. 1 and Jan. 18, 1989.
After being arrested at a hospital in Tennessee by U.S. marshals and flown to Washington, Barry friend Bettye L. Smith testified that she provided cocaine to Barry between 1983 and early 1990. Many times, she said, she also used the drug with him.
Possession of crack cocaine, Jan. 18, 1990.
The FBI's Vista Hotel videotape, which shows Barry taking two long drags from a crack pipe, is the prosecution's centerpiece on this count. Moore, who appears with Barry on the tape, faced lengthy cross-examination by defense lawyer R. Kenneth Mundy, who is trying to show that Barry was entrapped by Moore.
Compiled by Barton Gellman and Michael York