A jury of three men and nine women began deliberating the drug and conspiracy case against D.C. Mayor Marion Barry yesterday, after defense attorney R. Kenneth Mundy told the jurors that the government, in pursuing Barry, "used a sledgehammer to kill a fly."

Barry, who talked to reporters outside the U.S. District Courthouse at the end of the day, said that he is confident he will be found not guilty.

Assistant U.S. Attorney Richard W. Roberts, in the government's rebuttal argument, urged the jury of 10 blacks and two whites to "speak the truth" and show that no one, not even the mayor, is above the law.

"You must tell Marion Barry that you will rise up to your responsibility to speak the truth," Roberts told the jury in the government's 44-minute final argument to the jury. The government is afforded the last word because it carries the burden of proof.

Roberts told the jury, "You must tell Marion Barry that he must rise up to his responsibility . . . before he can rise up again and claim his place in history."

Meanwhile, one of the six alternate jurors excused by U.S. District Judge Thomas Penfield Jackson told reporters last evening that she had strong doubts about the government's case, while another alternate said she could see merit on both sides.

"I think Mr. Mundy did a very good job with what he was working with," said Constance King, a 46-year-old nursing assistant from Southeast Washington. Asked to assess the government's case, she laughed and said, "Do I have to answer that?"

Sheila Kern, 40, a business executive from Northwest Washington, said she thought that two of the government's key witnesses, Hazel Diane "Rasheeda" Moore and Charles Lewis, were "credible sometimes," and that, "I didn't personally feel that the government was on trial."

Most of the day belonged to Mundy, who used his rhetorical skills so passionately during his 2 1/2-hour presentation that toward the end, he temporarily lost his voice. He also had a head cold.

The mayor's lead attorney began his closing statement by taking issue with an analogy used the day before by Assistant U.S. Attorney Judith E. Retchin: that Barry was like a general who commanded troops in the war against drugs, but who secretly aided the enemy.

If a general is aiding the enemy, Mundy said, "the proper thing is to cancel his commission."

In his rebuttal, Roberts enlarged on the prosecution's warfare analogy, reminding jurors that government witness A. Jeffrey Mitchell testified that Barry had introduced Mitchell to cocaine. Not only was Barry a general, Roberts said, but he was also "a recruiter."

At one point, Mundy referred to videotapes shown during the trial of the mayor condemning drugs and vowing to prosecute users. "I submit to you that the government did that for one reason, to hold him up for scorn and ridicule for his apparent hypocrisy," Mundy said.

Mundy was drawing in part on his own admission on Wednesday that Barry occasionally has used drugs. Mundy said it is not inconsistent for a drug-using mayor to preach against drugs.

The lawyer urged the jurors to reject the government theory that Barry's anti-drug statements showed "a consciousness of guilt." He reminded them of government witnesses' testimony that Barry had chided them for excessive drug use.

"Is it a consciousness of guilt if I do something wrong and I tell my son not to do it?" Mundy asked. "Is it wrong if I walk along the ice and fall into it, and don't turn around and tell someone who followed me, 'Turn back, the ice is treacherous, the ice is unsafe?' "

As he spoke, one juror could be seen nodding in apparent agreement.

After the defense's closing statement and Roberts's rebuttal, Judge Jackson issued instructions to the jury. Then he dismissed the six alternates, and the 12 jurors spent less than an hour in the jury room.

Then they sent two notes to the judge. One said juror Edward Eagles, a teacher at St. Albans School for Boys, had been selected as foreman. The second note said, "We propose to leave today at 5 p.m."

From the trial's beginning, Jackson and lawyers on both sides knew who, among the panel of 18, would be the 12 jurors and who would be alternates.

Sources familiar with the case said yesterday that prosecutors and defense lawyers agreed on Wednesday to substitute one alternate juror, Patricia Chaires, for a regular juror, Carolyn Bass. The sources said they made the switch out of concern about some non-verbal cues they felt she had given during the trial, including facial expressions. She said in an interview last night that she makes faces when she listens and meditates.

The decision was made during a 50-minute conference in Jackson's office Wednesday. The conference was transcribed by a court reporter, but Jackson ordered the transcript sealed.

For much of the 2 1/2 hours that Mundy talked to the jury, he recounted the list of government witnesses, starting with former D.C. government employee Lewis and former Barry girlfriend Moore.

Mundy, his voice rising with emotion, said there were good reasons for the jury to disbelieve each of the government's key witnesses.

Both Moore and Lewis testified for prosecutors that they had decided to cooperate with the FBI because they wanted to get away from drugs, straighten out their lives and do the right thing. Mundy implied that each had a less lofty goal.

"Now, I guess people get wake-up calls from the strangest places," he said. "Charles Lewis got his when he was sitting in a prison in the Virgin Islands. Rasheeda Moore got hers when she was sitting in a {homeless} shelter . . . in California."

Lewis, said Mundy, cooperated with the government only to avoid a lengthy prison term in the Virgin Islands, where he was convicted of drug charges.

No charges have been filed against Moore. She, her three children and a male companion are enrolled in the federal witness protection program because of a threat against her life, prosecutors said. Officials also said the cost to the government of her participation in the program is $1,700 a month. Mundy scoffed at the suggestion that her life had been threatened, calling her entry into the program "a subterfuge for her to dine at the public trough."

Roberts disputed the assertion that Moore benefited from her involvement in the case. He called her participation in the program "a life sentence," saying she would forever be limited in her contacts with friends and family.

Mundy also called into question Moore's testimony that she smoked crack and snorted cocaine with the mayor well over 100 times during a two-year affair.

"Do you believe for one minute that Mr. Barry could have continued to function and run the city, a complex metropolis such as the District of Columbia," Mundy said, "if he was as rampantly using drugs as Rasheeda Moore says?"

Mundy also discussed the Ramada Inn episode of Dec. 22, 1988, when D.C. police prepared to investigate a hotel maid's complaint of drug activity in Lewis's room, but called off their investigation when the hotel manager learned Barry was inside.

Lewis and a friend, city employee James B. McWilliams, later testified that in the weeks after the incident, they had lied to authorities about it.

Mundy suggested yesterday that Lewis and McWilliams had lied to protect each other and a drug-dealing business, and not, as they testified, to protect Barry.

Several times, Mundy urged the jurors to find Barry not guilty on the three perjury charges, the only felonies among the 14 counts. He told them they could do so because the charges don't relate to grand jury questions about Barry's own drug use, but about Lewis's involvement with drugs.

"He is not charged with perjury or lying about his use of cocaine," Mundy said. "I repeat, because it is critical, he is not charged with that."

He apparently made that point to ensure that his admission on Wednesday, that Barry had used drugs, did not spill over into the perjury counts.

In the end, Mundy returned to his central theme: that the government had misused its power in going after Barry.

"Our government doesn't function at all when it stoops to the entrapment and the lure and the enticement," he said. He added, "This case has been with us a long time, and it is now your job and your duty to resolve it."

The mayor's lawyer urged the jurors to tell the government, "This far and no further, this long and no longer, this much and no more."

Roberts, in turn, challenged Mundy directly on each of the defense's central arguments.

"I cannot untwist all of the things that have been twisted in the short time I have," said Roberts.

He pointed both hands at Barry and accused him of refusing to accept responsibility for his actions.

"Let's look at the heart of the defense that Marion Barry has presented," Roberts said.

"The defense," Roberts said, "is 'I didn't do it. All the government's 25 or 30 some-odd witnesses are lying. But if I did do it, then the devil made me do it, and don't convict me because the government was out to get me' . . . . What the sad fact is, members of the jury, Marion Barry was out to get himself."

Staff writers Barton Gellman and Elsa Walsh and staff researcher Ben Iannotta contributed to this report.

Following are the 14 charges against D.C. Mayor Marion Barry and a listing of key witnesses:

Conspiracy to possess cocaine, Fall 1984 to Jan. 18, 1990.

This charge is based on testimony of witnesses in counts 2 to 14 and on logs of telephone calls made by alleged co-conspirators and Mayor Marion Barry.

Possession of cocaine, November 1987.

This charge is based on testimony of Barry girlfriend Theresa Southerland and Georgetown restaurateur Hassan H. Mohammadi.

Possession of crack cocaine, Sept. 7, 1988.

Lydia Reid Pearson's testimony provided the basis for this charge.

Possession of crack cocaine, Dec. 16, 1988.

Counts 4 through 7 refer to testimony by Charles Lewis that he and Barry used drugs together at the downtown Ramada Inn.

Possession of crack cocaine, Dec. 17, 1988.

Possession of crack cocaine, Dec. 19, 1988.

Possession of crack cocaine, Dec. 22, 1988.


This charge centers on Barry's denial in January 1989 grand jury testimony that he knew about Lewis's involvement with drugs.


This charge centers on Barry's denial in grand jury testimony that he ever gave Lewis any drugs.


This charge centers on Barry's denial in grand jury testimony that he ever received any drugs from Lewis at the Ramada.

Possession of cocaine, Aug. 26, 1989.

Testimony by Barry friend and former D.C. employee Darrell Sabbs was key to this charge.

Possession of cocaine between Nov. 7 and Nov. 10, 1989.

This was based on Barry associate Doris Crenshaw's testimony that she used cocaine with him at the Mayflower Hotel.

Possession of cocaine between Jan. 1 and Jan. 18, 1989.

Barry friend Bettye L. Smith said she gave him cocaine and used drugs with him during this period.

Possession of crack cocaine, Jan. 18, 1990.

This charge stems from the FBI sting operation involving Hazel Diane "Rasheeda" Moore at the Vista Hotel.