The Barry Sting

The prosecutors knew it. The press knew it. The public had reason to know it, though many ignored the signs.

The mayor of the nation’s capital since 1978, purported leader in the struggle against a crippling drug epidemic, was flagrantly abusing illegal drugs.

Marion Barry, Jr., chanted, "Down with dope," and kept turning up in the company of dope dealers. He visited one, Charles Lewis, at least four times in seven days in December 1988; the last visit aborted a police raid. Barry parried questions about these suspicious activities with implausible yarns, while publicly declaring, "Never in my life have I used illegal drugs."

By late 1989 federal investigators had evidence from Lewis and others that Barry was a regular cocaine user and had lied to a grand jury about Lewis. They also suspected the mayor of steering city contracts and jobs to people who gave him drugs, and of possible links to the financial corruption that had felled some of his top aides.

Barry was out of control, a festering sore on the body politic. Any good prosecutor would have wanted to nail him. But at what cost?

Nailing Barry would not be easy. He was cagey, doing drugs in bathrooms with lovers and friends, using code names. And he was popular with Washington’s black majority, a bold, brash, self-styled champion of the disenfranchised. A case built on plea-bargaining snitches might bomb with a jury.

"The only way you’ll convict Marion Barry," one prosecutor involved in the investigation told colleagues after years of frustration, "is if you catch him with his pants at his knees and the coke at his nose."

And so the reappearance of Hazel Diane "Rasheeda" Moore last New Year’s Day seemed the answer to a prosecutor’s prayer. A former Barry girlfriend and drug partner, the once-glamorous model had been cultivated .by investigators, but slipped out of sight. A drunk-driving arrest in Los Angeles brought her up on the FBI radar screen. She was broke, down on her luck, ready to talk-and willing to set Barry up.

So on January 18, 1990, in room 727 of the Vista International Hotel, Rasheeda Moore delivered Barry on a platter. There he was, taking two deep drags of crack, on video. Marion Barry, crackhead. Marion Barry, liar. Marion Barry, out of control.

But rewind the grainy tape, play the whole 83 minutes, and another impression emerges: the federal government, out of control. The federal government, so bent on getting a maddeningly elusive quarry for something that it lost its perspective.

The federal government, contracting out betrayal-exploiting a frightened woman’s fear of prosecution, a jilted woman’s lust for revenge; flying her across the country, paying for the pantsuit in which she enticed Barry, babysitting her three children while she did it.

The federal government, running a seamy bait-and-switch operation-luring the reluctant target to a hotel bedroom, teasing his libido, plying him with cognac, steering him toward crack as he pants for sex, persisting when he says no, and finally bagging him after 50 minutes.

The federal government, all but helping the man pump illegal drugs into his body-waiting to spring the trap until the two hits from the crack pipe had sent his heart into overdrive and his blood pressure soaring.

Thus did the government lower itself into the moral muck in which Barry dwells, deep enough to give a patina of plausibility to his campaign to transmute his criminality into victim-hood. Thus did righteous zeal devolve into sleaze.

The most nauseating thing about the case has been Barry’s race-baiting demagoguery-his cries of "political lynching," his wild claims of a federal plot to trump up charges against black officials, his cozying up to hatemongers like Nation of Islam minister Louis Farrakhan.

The most disturbing thing about the case has been the credence given to such claims by black leaders like Jesse Jackson and NAACP executive director Benjamin Hooks, and the misguided solidarity with. Barry felt by many black citizens.

But the most regrettable-because avoidable-thing about the case has been the unwise use of a sting operation that looked and smelled so bad, to so many blacks and whites alike, that it threw a spark of real prosecutorial overreaching into the explosive brew of black paranoia about white law enforcement.

The fact that such an extraordinary operation was aimed at one of the nation’s most conspicuous black elected officials-by an unelected white U.S. attorney in a 70 percent black city-created an especially unfortunate appearance, one that Barry has assiduously exploited.

This may not have been the first sting in which such an elaborate cast of law enforcement officials and array of recording equipment were marshaled to catch a man in a drug misdemeanor. It may not have been the first in which an informant was used to entice a former lover into using drugs. It may not have been the first in which the target had to be nudged toward the proposed criminal activity so many times before he engaged in it. It may not even have been the first in which the government chose to gamble with the target’s health. But it surely was the first to combine all these elements.

It should also be the last.

"Someone should have had the good sense to pull the plug on this thing," says Robert Luskin, who helped draft the Justice Department guidelines for undercover operations during the Carter administration and is now a partner in the Washington office of Powell, Goldstein, Frazer & Murphy.

He’s right. But nobody did-not U.S. Attorney Jay Stephens, who backed the sting; not FBI director William Sessions, who approved it; not Attorney General Dick Thorn-burgh, who was told about it and let it go forward.

Play the whole tape, and it becomes easier to fathom the jury’s 6-to-6 deadlock on the Vista drug possession count. It also becomes easier to fathom, if not to justify, the jury’s failure to convict Barry of anything but a single cocaine possession misdemeanor, despite compelling evidence of guilt on most of the ten other cocaine misdemeanor counts and the three felony perjury counts. Moore, Lewis, and 11 other witnesses described Barry using illegal drugs on more than 200 occasions since 1983. When Barry attorney R. Kenneth Mundy finally admitted in his closing argument that his client "was an occasional user of cocaine," it came almost as an anticlimax.

Barry’s entrapment defense was legally relevant only as to the Vista count. But Mundy says that the distaste of some jurors for the Vista sting operation was a "very important" asset for the defense, one with "substantial repercussions" on jurors’ attitudes toward the entire case.

The mistrial on 12 of the 14 counts (with an acquittal on one drug misdemeanor) was no doubt attributable in part to a sense of racial solidarity with Barry felt by some or all of the five strongly proacquittal black jurors. While most refused to be interviewed for this article, this is the impression that emerges clearly, if obliquely, from accounts of the deliberations by two of the jurors who spoke to this reporter and others interviewed by The Washington Post.

"There were people there that were not going to convict him no matter what," asserts juror Tonna Norman, a 30-year-old analyst at the Defense Mapping Agency who voted for conviction on most counts. "The term ‘reasonable doubt’ was used to a great extent," she says, adding, "My interpretation was these were not reasonable doubts, they were preconceived doubts."

(As The Washington Post first reported, five black jurors voted to acquit on all but one or two of the 14 counts; a sixth voted to acquit on seven counts; and the other six jurors, including four blacks and the two whites, both men, voted to convict on most counts.)

But the proacquittal faction’s jaundiced view of the prosecution cannot be disentangled from their understandable distaste for the elaborate lengths to which the government had gone to catch their mayor in a relatively minor crime at the Vista hotel, and to nail him for similar drug possession crimes elsewhere by threats of prosecution and offers of leniency to turn a dozen witnesses guilty of similar crimes-in some cases more serious crimes.

"I think they overplayed it," says 48-year-old Joyce Hines, a black homemaker who voted to acquit on most counts but says she would not vote for Barry again. "I felt that it was entrapment. I’m going back to the tape, where the mayor actually did not want to go up into the room, but she encouraged him to come up. He kept saying no to drugs, a number of times, but she encouraged the drug conversation. I did not like the way it was done. If he had brought the drugs for her to share, I could see that. But I do not think he was there for drugs. He was there for sex."

Did she think prosecutors targeted Barry because of his race? "They always wanted us to try him as a regular man," Hines replies, "but it was very hard, knowing the time and money they had spent on Barry they would not have spent on a regular man…. As we got into it at first, I didn’t think it was a racial thing. But as the trial went on for days and weeks, I thought it could have been racial, or political."

Mundy, one of Washington’s most masterful trial advocates, shrewdly put the government on trial while seeking to sow enough not-very-reasonable doubts about the government’s proof to provide rationalizations for jury nullification. He accused the government of a seven-year effort "to get Mr. Barry," involving "exorbitant expense." He played on "deals the government made with the devil" and with witnesses from "the lower recesses of humanity." He hinted at sinister explanations for gaps in the evidence. He wowed the jurors with eloquence and charmed them with humor.

And the Vista "production," as Mundy called it, with FBI agents "watching through a peephole" while Rasheeda Moore enticed Barry to ingest a dangerous drug, was his main exhibit.

Almost half the jurors found Mundy more persuasive than the evidence. And this jury was a true reflection of public opinion in a case in which, in a sense, the whole city was the jury. The whole city watched the videotape at the heart of the case on television. The whole city was bombarded with saturation news coverage of the trial. The whole city deliberated on the case at offices, construction sites, bars, pool halls, and Georgetown dinner parties. And the whole city was hung.

"No jury in the District of Columbia would have come to any different result," maintains juror Joseph Deoudes, a 23-year-old political science major at American University who plans to be a lawyer. He voted to convict on most counts and says the prosecution’s "evidence was overwhelming." But that doesn’t mean the prosecution could do better with another jury, Deoudes says, because "you have the whole city divided on this issue."

The division was documented in a postverdict Washington Post poll, with nearly 60 percent of blacks, and only one in seven whites, calling the prosecution racially motivated.

Nearly three out of four people opposed any retrial of Barry. On September 17 U.S. Attorney Stephens, a buttoned-down veteran prosecutor whose zeal in seeking long prison terms for small-time drug couriers has drawn fire from judges, announced that the 12 drug and perjury counts on which the jury hung would not be retried. Judge Thomas Penfield Jackson, who presided over the trial, set sentencing for October 26.

The Barry case has brought new extremes of racial polarization to a city unaccustomed to the frenzied rhetoric and mob scenes that swirl around so many racially tinged trials in New York.

The case was not driven by racism. It was driven by capable, well-motivated investigators so scandalized by the mayor’s catch-me-if-you-can lawlessness that they got carried away. They violated the counsel of Oliver Wendell Holmes, Jr., that it is "a lesser evil that some criminals should escape than that the government should play an ignoble part."

Barry himself deserves little sympathy. Indeed, he has suggested, without meaning to do so, that his arrest may have been what "saved" him from "my own personal destruction": Each time he babbles about how long he has been free from mind-altering chemicals, he counts from the time of his arrest.

But it was not for the sake of Barry’s health that the government dove so deep into the gutter after him.

It is impossible to know how much of the misguided sympathy for Barry was energized by repugnance for the government’s methods. He would have played the racial card to galvanize hard-core supporters whether or not there had been a sting. But he might not have struck so responsive a chord with people like juror Hines.

Public reaction to the case has been skewed by cognitive dissonance and ambivalence, especially among blacks, ever since Barry’s arrest. Polls show that a majority of black Washingtonians, like the overwhelming majority of whites, want him out of public office. The dismay many feel at Barry’s conduct is tempered by distaste for the government’s use of a former lover to set him up, and by its investment of so much time, money, and pressure on potential witnesses to make its case.

Some are so repelled by Barry that they swallow any doubts about the sting. Some-‘especially those for whom it is painful to confront the truth about a man they had admired-are so repelled by the sting that they swallow their doubts about Barry.

The city’s extreme polarization over the case has been evident since it began. A Washington Post poll taken the day after the January 18 sting indicated that nearly half the city’s residents thought federal authorities had been "out to get Marion Barry any way they could." About 40 percent of the blacks polled said Barry had been targeted for special attention because he is black. (At the same time 57 percent of all respondents said Barry should resign and 76 percent said he should not seek reelection as mayor.)

Indeed, the strong possibility of a hung (or mostly hung) jury should have been apparent to the prosecution team when they were planning the sting. So should the heavy costs such a verdict would entail to race relations in Washington and the nation, and to the city’s image as far away as cocaine-convulsed Colombia, where the Barry verdict was widely scorned as proof that Americans condone the drug users whose suppliers are murdering Colombian judges.

From the start Barry spurned demands that he resign and wallowed in smarmy self-justification, suggesting that his only problem was alcohol and his tawdry conduct reflected selfless devotion to public service. "I have had to look my human weaknesses straight in the eye," he said, "had to realize I have spent so much time caring about and worrying about and doing for others, I have not worried about or cared enough for myself." He also left open the possibility he would still seek reelection, after 12 years of mismanaging the city to the fiscal breaking point.

Meanwhile, Stephens and his team moved quickly to broaden their case. The Vista sting was a great success in one of its goals, which was to break the resistance of Barry drug associates who had refused to cooperate. Now prosecutors brought enormous pressure against such people, menacing them with prosecution for drug use or distribution or other crimes. Several caved in and made deals to testify against Barry. Others were forced to testify under grants of immunity.

Officials suggested by the subpoenas they issued for city records and in leaks to the press that they also sought evidence of Barry doing official favors in exchange for drugs, or for money to buy drugs, or other financial corruption. No solid evidence along these lines has come to light, however, and Barry has been charged with no such crimes.

The 14-count indictment on which Barry was tried included ten charges of cocaine possession and one of conspiracy to possess cocaine, all misdemeanors. There were also three felony perjury charges, all for lying to the grand jury after his December 1988 visits to Charles Lewis’s Ramada Inn room had prompted an investigation by a team of federal prosecutors, FBI agents, and D.C. police. Barry’s alleged perjuries included denying that he had ever given drugs or drug money to Lewis, received drugs from Lewis, or known of Lewis’s involvement with drugs.

The prosecutors knew it. The press knew it. The public had reason to know it, though many ignored the signs.

The mayor of the nation’s capital since 1978, purported leader in the struggle against a crippling drug epidemic, was flagrantly abusing illegal drugs.

Barry was out of control, a festering sore on the body politic. Any good prosecutor would have wanted to nail him. But at what cost?

It should also be the last.

(As The Washington Post first reported, five black jurors voted to acquit on all but one or two of the 14 counts; a sixth voted to acquit on seven counts; and the other six jurors, including four blacks and the two whites, both men, voted to convict on most counts.)

And the Vista "production," as Mundy called it, with FBI agents "watching through a peephole" while Rasheeda Moore enticed Barry to ingest a dangerous drug, was his main exhibit.

The division was documented in a postverdict Washington Post poll, with nearly 60 percent of blacks, and only one in seven whites, calling the prosecution racially motivated.

The Barry case has brought new extremes of racial polarization to a city unaccustomed to the frenzied rhetoric and mob scenes that swirl around so many racially tinged trials in New York.

But it was not for the sake of Barry’s health that the government dove so deep into the gutter after him.

The city’s extreme polarization over the case has been evident since it began. A Washington Post poll taken the day after the January 18 sting indicated that nearly half the city’s residents thought federal authorities had been "out to get Marion Barry any way they could." About 40 percent of the blacks polled said Barry had been targeted for special attention because he is black. (At the same time 57 percent of all respondents said Barry should resign and 76 percent said he should not seek reelection as mayor.)

As the June 4 trial date approached, Barry stepped up his campaign for jury nullification and public sympathy. "In this town all it takes is one juror saying, ‘I’m not going to convict Marion Barry. I don’t care what you say,’ " he said in an interview with The Washington Post. He accused prosecutors of trying "to kill me" by having him ingest the crack at the Vista. And a Barry campaign newsletter likened his case to the Holocaust and the lynching of blacks in the South.

Barry announced on June 13 that he would not seek a fourth term as mayor. He said that "now is the time for healing," and that the decision was unrelated to his case. But the timing suggests he hoped to win concessions in pending plea negotiations, which proved unproductive, or sympathy among the jurors then being chosen, or both.

During voir dire many, perhaps most, of the more than 140 prospective jurors expressed discomfort with the Vista sting operation. Mundy used ten of his twelve peremptory challenges to exclude whites; Judith Retchin and Richard Roberts (who is black), the assistant U.S. attorneys who tried the case, used all seven of their strikes to exclude blacks.

The six weeks of evidence, from June 19 through July 27, presented an odd counterpoint-courtroom testimony exposing Barry’s drug use and crude treatment of women alternating with out-of-court testimonials lionizing him as a great black leader.

In the courtroom the evidence showed Barry engaging in rampant abuse of cocaine, crack, opium, and marijuana all over Washington and on junkets to the Virgin Islands, the Bahamas, and elsewhere. It showed him lying to the public and the grand jury to cover up his drug use. It showed his multiple adulteries and aggressive sexual overtures to women. All this unfolded before Barry’s mystifyingly supportive wife, Effi. She sat stoically in the front row, hooking a rug, her demeanor combining boys-will-be-boys tolerance for her husband’s dalliances with disbelief of the more lurid tales.

Meanwhile, at public rallies, church meetings, and other gatherings around town, Barry drew wild cheers from thousands of black supporters and praise from the cast of fringe leaders who had climbed on the Barry victimization bandwagon.

Farrakhan consecrated Barry as a victim of "crucifixion" by whites and black "Judases." George Stallings, Jr.-an excommunicated Catholic priest who denounced the church as racist and made himself bishop of his own Imani Temple amid allegations he had molested altar boys-said Barry is "in trouble right now because he is too smart, too intelligent, and too black." Jesse Jackson said the Barry case was part of "an ugly pattern" of "white judicial leadership attacking black political leadership." He warned that "we’re close to broken glass and blood in the streets."

And out in Los Angeles, at the NAACP’s annual convention, Benjamin Hooks said that "overzealous, hostile, if not racist" prosecutors "will bring a black official to trial on the flimsiest evidence."

Barry himself swaggered around Washington, often donning a kente cloth, a woven African-style scarf that came into vogue as a symbol of black solidarity during Nelson Mandela’s visit in June. He spread wildly inflated rumors about the cost of the government’s investigation, calling it Jay Stephens’s "fifty million-dollar folly." (Justice Department officials said the cost was about $2-$3 million.) He sported yellow carnations in his lapel, saying, "Yellow is for canaries."

On two successive nights in late June, in the midst of Rasheeda Moore’s devastating testimony about their history of drug use and the playing of the Vista videotape, Barry was guest of honor at surreal, white-bashing Farrakhan rallies, the first of which drew a roaring, foot-stomping, clenched-fist-waving throng of some 15,000 to Washington’s Convention Center.

Barry and Farrakhan shared the stage with a cast that included, at various times, Stallings; Tawana Brawley, the notorious New York rape faker; and Congressman Gus Savage of Illinois, who blames Jews and white racists for his recent reproval by a House committee for sexual harassment of a Peace Corps volunteer on a trip to Africa.

"Black politics is a threat to white racism," Farrakhan asserted the first night, according to Andrew Sullivan’s account in The New Republic. "Could this be the reason for the attack upon our mayor?"

Whipping the crowd to a frenzy, urging the mayor to seek reelection ("Run, Barry, run"), Farrakhan roared, "This is our brother. I don’t care what comes out. Just remember that our accuser is guilty of the worst crimes of humanity." He quoted a prophet saying that if black politicians "sell us out, they should be killed." (Not his own proposal, he added demurely.)

The next night Barry returned with his wife and 10-year-old son, hours after the Vista videotape had played on television. Farrakhan alluded to Barry’s being read his Miranda rights. Then he shrieked, "Well, the day’s soon coming when we’re going to read white folk their rights!" On their feet, the thousands screamed hatred, shaking their fists at the white enemy.

That same week Judge Jackson handed the race-baiters a golden opportunity. He summarily barred Farrakhan and Stallings from entering his courtroom as Barry’s guests. With no evidence that they would violate courtroom decorum, the judge found that their mere "presence would be potentially disruptive, very likely intimidating" to jurors.

This ruling gave the appearance of arbitrarily denying to any and all provocative black leaders the right to attend a public trial. It was overturned on appeal-but not before Barry seized his chance to liken Jackson’s court to Nazi Germany.

While the jury was sequestered, such sideshows did their part to infect the larger trial going on out in the community with the rhetoric of racial jihad, to the despair of the many blacks, apparently a majority, who recoil from Barry and his conduct.

Defense attorney Mundy has generally avoided his client’s tactic of painting the prosecution as racist. He did say in a bench conference that he had information from "very reliable sources" that Ronald Stern, the chief FBI agent in the Barry sting, headed an "assault force" doing undercover operations against black officials around the country. Barry trumpeted this allegation, but neither he nor Mundy substantiated it. The FBI and prosecutor Retchin denied it.

Mundy now says, "I don’t think [the Barry case] was initiated because of racism," but "in the entire panoply of events… race may have had some small part." He declines to elaborate.

The first major prosecution witness was Charles Lewis, the man Barry had visited at the Ramada Inn in December 1988. A 50-year-old, twice-convicted drug dealer from the Virgin Islands, Lewis had been caught selling to an undercover FBI agent in St. Thomas in March 1989. He had agreed to rat on Barry in hope of cutting his prison time.

Lewis described four visits by Barry to his Ramada Inn room, saying that they had smoked crack each time. He said Barry had brought the crack the first two times, once in his trouser cuff, and a third time had sent a member of his police security detail ahead with an envelope containing $100 for Lewis to buy crack for them both. He said he and Barry had agreed to lie to authorities to conceal their crack smoking after learning from a Washington Post reporter and from Barry’s security detail that the mayor’s December 22 visit had aborted a police raid.

Lewis also testified about business trips by Barry to the Virgin Islands in June 1986 and March 1988, the first with Rasheeda Moore, that turned into drug and sex parties in hotels and on cruise boats. He said he had snorted cocaine on a cruise ship with Barry and Moore (who later testified that she recalled smoking only marijuana on that day) on the 1986 trip, and had been given $300 by Barry to buy crack, which they had smoked together on the 1988 trip. He said he introduced Barry to several young women who joined in their parties.

Mundy impeached Lewis as an admitted perjurer with a strong motive to incriminate Barry and suggested that he had a conveniently selective memory, but he challenged few specifics of Lewis’s testimony. Portions of it were corroborated by other evidence-the fact of Barry’s repeated visits to Lewis’s Ramada Inn room and testimony from a man who watched a Monday night football game there with them and from four Virgin Islands women who described Barry’s activities.

Three of the women also told of coarse sexual overtures by Barry. One said, "He was a pig." Another, Linda Maynard, testified in sobs that after she had smoked crack with Lewis in Barry’s room at a Virgin Islands hotel in March 1988, Lewis had left and Barry had forced her to have sex with him. (Lewis later said Maynard had given no such indication at the time. Barry said outside court that her story was "just not believable.")

Anne Freeman, an alternate juror, wrote in a journal later published by Legal Times, "I was embarrassed just hearing it…. Two jury members cried. It was really depressing. Has nothing to do with the allegations, but it is really making Marion Barry look bad."

Barry’s habit of using drugs around women with whom he was seeking to have sex gave the prosecutors ample opportunity to expose his tawdry sexual misconduct along the way to proving drug charges. But Mundy says, "I think that worked against them." An alternate juror, Constance King, agrees: "You asked yourself, ‘Hey, is he being charged with drugs or for his sex life with other women?’ It seemed like they just had no consideration for Mrs. Barry."

Rasheeda Moore, the prosecution’s star, took the stand for five days. A 39-year-old faded beauty in a plain black suit she was plump but self-possessed.

As Effi Barry looked on, Moore described a torrid affair from 1986 to 1988 during which she and Barry used drugs together "at least a hundred times" in hotels and friends’ homes all over Washington, in a municipal building during a break in a budget hearing, at Barry’s home, and at the home of Moore’s mother, a church organist.

The former model said members of the mayor’s police security detail knew of and facilitated his drug use. She said that soon after Barry met her at a party in 1986, he got her a no-bid city contract to conduct a summer youth program called "Project Me." It cost the taxpayers more than $180,000 over three years. And, Moore added, in a May 1988 argument after a crack-smoking session at the Vista when she refused to have sex, Barry threatened not to renew the contract.

Moore also described an argument the following month in which Barry had accused her of having sex with a friend of his and slapped her to the floor. She said this ended their sexual relationship but not their joint drug use.

Moore’s testimony set the stage for the climactic playing of the January 18 Vista videotape. Highlights had been previewed through press leaks, but the gritty reality of it still stirred the viscera. The technical quality was poor-a dim black-and-white picture with muffled, sometimes inaudible sound. Jurors were given transcripts to follow the conversation.

The sound track begins with a phone call from Moore to Barry. She asks him to stop by her room. Barry proposes a drink in the lobby instead, saying there are "too many nosy Rosies around now." But when he calls from the lobby, she says she just ordered room service. Protesting that "I don’t like to go in hotel rooms," Barry goes in hers.

Moore answers Barry’s knock at 7:35 P.M. and introduces him to her purported friend "Wanda," actually an FBI undercover agent. Barry hugs Moore. Wanda exits. Barry says, "You been good? Of course not."

Moore testified that this and other ambiguous Barry phrases were veiled references to drug use. But on the videotape Barry seems far more interested in sex, clumsily groping for her breast and pawing her legs as they sit on the bed, drinking cognac, watching television, and talking about old times. "Can we make love before you leave, before you leave town?" he asks. "It would be a good idea, just for old time sake. You know, catch up."

Moore coyly parries his overtures, reciting the names of other women In Barry’s life, including "Maria," a former friend of Moore’s in whom Barry had taken a sexual interest after Moore introduced them. "Maria, my ass," says Barry. The conversation meanders. He tells Moore, "I still love you…. Once in love, always in love." He paws her. She fends him off. They chat.

Moore says, "I would do it, but… I can’t just jump into it." She laughs. "You’re sick. So what are you going to do? Let’s do something."

"Your friend mess around?" Barry asks moments later.

Steering the conversation toward drugs, Moore says Wanda "toots."

Barry says, "Don’t have anything. What about you?"

Moore indicates that she doesn’t have enough money. Soon she presses on: "So what, you want to do something?…"

"Not tonight, naw," Barry says.

Moore notes that Wanda "was going to try to pick some up." The conversation returns to Maria. Barry makes some phone calls. He gets Moore to kiss him on the forehead and give him a hug.

Wanda phones, then returns, and the women go into the bathroom; Barry preens in the mirror. Coming out, Moore says, "She got something, but we got to pay her." Barry asks, "How much?" After a brief discussion of prices, he says, "I don’t smoke no more, honey." Wanda departs again. Moore tells Barry, "I didn’t get anything." Barry tells her, "Go get some. Go get it."

Moore runs after Wanda, then gets some money from Barry and some crack from her. Wanda leaves again, "You got a pipe?" asks Barry. Moore gives him one. "How does this work?" he asks, adding, "I never done this before."

Scoffing at this, Moore shows him how to use the pipe. Each repeatedly refuses to smoke and suggests the other should. "No, no, nope, nope, nope, nope. You do it," says Barry. Moore says crack makes her "too nervous, too hyper."

As she prattles on, Barry is raising the pipe to his lips. Head held back, facing the mirror, he inhales deeply. Moore, still talking, asks, "How is it? Where’s the rest, where’s the rest of it? You did it?"

Then, in a low, rasping voice she exclaims, "Oh, Maria, Maria"-a reference to Moore’s former friend, whose charms, Mundy suggested, had drawn Barry away from Moore.

Barry inhales again, a bright flame at the top of the pipe, holds it in, exhales, and puts down the pipe. "Let’s go downstairs," he says.

"You don’t want to take another one?" asks Moore. "No, you’re crazy," says Barry.

(At the trial, Mundy hammered on FBI agent Ronald Stern for waiting until Barry had smoked before arresting him. Stern said that otherwise "there were too many plausible questions that he could have raised" about his intentions.)

Calling his security guard on a walkie-talkie, the mayor heads for the door-but doesn’t reach it. Suddenly, at 8:15 P.M. , with a crashing noise, the door from the adjoining room bursts open, and about seven men with "Police" and "FBI" printed on their backs come swarming in. One leaps across the bed in pursuit of the stunned Barry. They shout, "Police!" "FBI! You’re under arrest." "Don’t move!" They pin him up against a wall with his arms outstretched.

This sudden show of force provoked gasps in the courtroom. "It left a bitter taste in my mouth," says juror Joyce Hines. It gave alternate juror Constance King nightmares for three nights. "It scared me," says King. "It was just so real. You couldn’t go back and rewind. It was dangerous."

After the initial rush the agents try politely to calm Barry, addressing him as "Mr. Mayor." "I didn’t have anything," he says three times. "I didn’t, I didn’t do anything…. I didn’t have anything. She, she did that."

As Barry curses and says, "I shouldn’t have come up here," damning Moore, the agents try to read him his Miranda rights. Barry isn’t interested. "I’ll be goddam," he mutters. "Bitch set me up. … She kept, kept, kept pushing me." Barry mutters to himself in this vein for most of the remaining half hour of the video, saying "goddam bitch" 24 times and "bitch" another 16 times in the 20 minutes after his arrest.

(Soon after the video, was aired, T-shirts reading "God-damned bitch set him up" were hot sellers on the streets of Washington.)

FBI agent Robert Core tells Barry, "We know about your past cardiac history with narcotics," and two paramedics are brought in to examine him. Barry tells them, "I feel fine, except I’m pissed off." He is told the crack "could be adverse to your health" and asked if he wants to go to a hospital. Barry declines, then asks for "a quick drink." The answer is no.

(Cocaine use raises blood pressure by constricting arteries and stimulating the heart. The paramedics’ tests showed Barry with elevated blood pressure-so high that he was at risk of a stroke or a heart attack, according to medical experts whom Mundy wanted to call. Judge Jackson, having ruled it legal to induce Barry to use drugs, disallowed the testimony.)

Finally the agents search Barry, put his arms behind his back, and handcuff him. "I guess you all figured that I couldn’t resist that lady," Barry says. They take him away, and the tape ends at 8:58 P.M.

On cross-examination Mundy cast Moore as an addict and a liar who had used crack after the sting and perjured herself by denying it in grand jury testimony. He pressed her to admit that the video showed Barry would not have taken drugs at the Vista but for her lures.

Moore gave ground reluctantly. Mundy got her to admit that Barry did not have "drugs on his mind" when he arrived at the Vista, but she had drugs on her mind for him, and that she had violated her instructions in steering him toward drugs.

The tone of Mundy’s probing about oddities on the videotape-Why did Moore move a chair in front of the cameras? Why was the television turned up so loud? Why was the view of Barry partially blocked?-seemed to suggest tampering or deception.

Mundy also tarred Moore’s motives. He scoffed at her assertions that she was partly motivated by a religious conversion and concern for Barry’s health. Why, then, offer him a third hit of crack? Hadn’t she really vowed to "get" Barry because he had scorned her, slapped her, and jilted her for other women? (Another witness said later that Moore had vowed to get Barry, a charge Moore denied.)

The lawyer stressed that Moore had not only avoided prosecution but also been rescued from dire financial straits, and had been living comfortably at government expense ($ 1,700 a month) since January. He dismissed, as "a subterfuge for her to dine at the public trough," the prosecution’s explanation that she had to be put in the witness protection program because of a contract on her life.

After Moore, another nine witnesses, mostly Barry friends, testified that they had supplied him with drugs, used drugs with him, or seen him doing drugs on dozens of occasions. They included former girlfriends, a cocaine dealer, a Georgetown restaurateur, a deputy campaign manager in the 1984 Mondale presidential campaign, a local attorney, and an advertising executive. Some testified reluctantly, protesting their love for Barry as they incriminated him to save themselves.

Neither Mundy nor Barry, who did not testify, could refute this sheer mass of cross-corroborative testimony. Instead, Mundy pounded on his theme that only a government vendetta could explain pressuring so many people so hard to turn, and making so many deals with drug dealers and users. He also put the weakest of the government’s ten possession counts under a magnifying glass.

In closing arguments prosecutor Retchin hammered on "the web of deception" Barry had woven. She defended the sting as necessary to get to the bottom of rumors that the mayor of drug-torn Washington "was working with the other side" in the drug war. Her colleague Roberts added, "Marion Barry was out to get himself and had "smoked and snorted his way" through Washington while vowing on television that he had never used drugs.

Mundy, while admitting Barry was "an occasional user of cocaine," stressed doubts as to whether he had used drugs when and where the witnesses said he had. He said Barry could not have run the city "if he was as rampantly using drugs as Rasheeda Moore says." In its relentless pursuit of Barry, Mundy contended, the government had "used a sledgehammer to kill a fly," using a sting operation that "cuts at the very fabric of our entire society." He urged the jurors to tell the government, "This far and no further, this long and no longer, this much and no more."

Judge Jackson told the jurors they must set aside any qualms about the government’s tactics, including the sting, because he had ruled them legal. He said they could uphold Barry’s entrapment defense to the Vista sting count only if there was a reasonable doubt that he was "predisposed" to use drugs "whenever the opportunity was afforded him."

There had, of course, been reams of evidence of Barry’s predisposition to smoke crack. Was there room in Judge Jackson’s language to find Barry was entrapped if he was not thinking of smoking crack when he knocked on Rasheeda Moore’s door? So six jurors apparently found. "I felt he did not go there to smoke crack," explains Joyce Hines, who voted for acquittal.

Six other jurors reacted more as did alternate Anne Freeman, who watched the tape and wrote in her journal: "I saw, on a videotape that was deemed fair and accurate, Marion Barry smoke crack cocaine. He smoked it of his own free will. Moore didn’t force him to smoke it; she didn’t put it to his lips. He did. Plain and simple."

The jury deliberated eight days, but juror Deoudes sensed the probable outcome weeks beforehand, from small talk among jurors. "It was my strong feeling after the second week of testimony that it was going to end in a mistrial," he says.

"Ken Mundy was sucking emotion out of the jury," Deoudes says. "He was good…. The evidence was overwhelmingly stacked against him. He played on emotion, won on emotion,, and he did his job for his client, which was to keep him out of jail at all costs. He was the master of confusion. "

Deoudes adds that "after the first day of deliberations I knew that Marion Barry had absolutely no chance of going to jail," because the jury would not convict on the three felony perjury charges. The surprising thing, he says, is that the jury convicted Barry of anything at all.

There was little overt discussion of race in the deliberations, according to Deoudes and two other jurors. And the entrapment issue was dealt with late, and briefly, because a deadlock on it seemed so likely, But questions of race and governmental overreaching hung heavy in the air throughout the sometimes angry deliberations.

Almost from the outset-as The Washington Post reported in its detailed August 23 jury story by Elsa Walsh and Barton Gellman, and as four jurors confirm-the ten blacks and two whites were divided into two opposing blocs with irreconcilable perspectives, and with one swing juror shifting between them.

The group voting to acquit on most charges consisted of five black jurors-Joyce Hines, three other women, and a man-ranging in age from 41 to 61. They thought that the Vista sting was entrapment (as did the swing juror) and that the government was out to get Barry any way it could. They viewed almost all the prosecution witnesses as self-serving liars, doubting them even when there was strong corroboration.

Voting for conviction on most charges were four younger black women, including Tonna Norman, and the two white men, Deoudes and Edward Eagles, a 55-year-old history teacher who was elected foreman. They saw the prosecution’s evidence as compelling on all except one, two, or three counts, variously.

These six jurors all voted to convict Barry of crack possession at the Vista, rejecting his entrapment defense. But not all approved of the sting. Norman, for one, followed the judge’s instructions. "I don’t really agree with it," she says, "but we were told that it was legal." Deoudes had no such ambivalence. He says he "wasn’t troubled by the sting." He says Barry’s initial interest was in sex, but that he smoked the crack of his own free will.

A leader of the proacquittal jurors, Valerie Jackson-Warren, strongly implied in deliberations that the government was "out to get" Barry because of his race. According to one juror, she also doubted whether the stuff Barry smoked at the Vista, the remainder of which the jury inspected, was really crack. Even Mundy had conceded that. "What do you say when someone questions whether cocaine is cocaine?" Deoudes recalls in frustration.

Harriedell Jones, 59, another pro-Barry juror, at one point said, "I’m sick of you bourgeois blacks" to Patricia Chaires, an articulate advocate of conviction on most counts. (Two jurors confirm hearing this comment, first reported in The Washington Post. )

On August 7, the fifth day of deliberations, the jurors agreed to convict on one cocaine possession count, based on the testimony of Doris Crenshaw, the former deputy campaign manager for Mondale, who was an old Barry friend from their days as civil rights activists. She said Barry had used cocaine with her in a Washington hotel in the fall of 1989. The jurors considered her the most credible prosecution witness, in part because she had no plea agreement or motive to lie. They also seemed close to agreement to acquit Barry of taking a crack delivery from a dealer named Lydia Pearson at a municipal building on September 7, 1988; Mundy had mounted a plausible alibi defense to that charge.

But between the time the jury had notified Judge Jackson that it had a partial verdict and the time it was summoned to deliver it, Jones became concerned that Deoudes might hold out for conviction on the Lydia Pearson count, and said she might change her vote on the Crenshaw count. This led to an awkward courtroom scene in which the jury was unable to announce any verdict and left in disarray, with some badly frayed tempers.

The jury finally brought in its split verdict on Friday, August 10: a conviction on the Crenshaw count, an acquittal on the Pearson count, and a deadlock on all others.

The split verdict was widely regarded as a victory for Barry, who has a good chance of avoiding prison, and a defeat for Stephens. The U.S. attorney was almost drowned out by dozens of pro-Barry hecklers as he doggedly defended his handling of the case on the courthouse steps after the verdict.

The next day, speaking to a cheering crowd of supporters, Barry wore his drag conviction like a badge of honor. He said he had healed himself, that there is "no shame and disgrace in being addicted to anything," and he asked the city "to forgive me for any hurt I may have caused." He also assailed the federal government for trampling civil liberties and the news media for "negative" coverage, calling on both to "let go and heal" the troubled city.

Three days later Barry said he would run as an independent this November for an at-large seat on the city council. It was too late to file for the September 11 Democratic primary.

Despite polls showing a wide majority of voters want him to leave politics, Barry’s hard core of support gives him a fairly good shot at winning election in the divided field by a plurality. Like Richard Nixon, the man refuses to fade away.

At least he won’t be mayor much longer, and he stands exposed (and minimally convicted) as a drug abuser who lied to conceal what his own lawyer delicately calls his "occasional use of cocaine."

Sharon Pratt Dixon, the only mayoral candidate who forthrightly criticized Barry for betraying his trust, won a stunning, out-of-nowhere victory in the Democratic primary-a big protest vote against Barry, as even he acknowledged.

These are real benefits. We have the Vista sting to thank for them. And those of us who criticize Jay Stephens and company for launching it should acknowledge that it is unclear how else they could have exposed Barry’s drug abuse for all to see.

"What was the prosecutor supposed to do?" asks a prosecutor in Washington who is uninvolved in the Barry case. "Follow him around?… Send in an undercover agent to try and sell him dope? Put a wiretap on his phone? Should the FBI have infiltrated his political circles? That seems to me to be more offensive.

"A sting, but not this sting? A sting with a man? But maybe that won’t work-he likes women…. I’m troubled by the extent to which he was reluctant to go along with it," this official continues. "But the hard-ass prosecutor in me says that’s just him being cagey."

In a subsequent conversation this prosecutor says he’s still on the fence. "It was important to catch such a prominent public official, in some sense the chief law enforcement officer of the city, because he was such a bold hypocrite," he says. And a sting seemed the best way to do it.

But this sting? He pauses: "It just seems like such a low-down way to catch a man."

Juror Joyce Hines had it about right: A sting based on Barry’s bringing his own crack to share might have been justified, but this sting operation smells too bad. The smell comes chiefly from the use of sex as bait to lure Barry into a relatively minor crime that he was not necessarily planning to commit-especially a crime involving risks to his health.

Barry’s entrapment defense may not fit the Supreme Court’s definition, with its blinkered focus on the target’s predisposition rather than the government’s conduct. But the six jurors who found entrapment by exploiting ambiguities in Judge Jackson’s instructions improved on the Court’s handiwork.

Prosecutors should take heed. They must, of course, sometimes use unsavory informants and intrusive techniques if they are to get at corrupt politicians, drug dealers, and the like. But too much zeal can backfire.

It would be one thing to use sex in a bait-and-switch operation to catch, say, an Iraqi terrorist. But using it to catch a politician taking a cash bribe would be dubious. And such tactics should never be used to develop a simple drug possession case, no matter how lofty the target. It’s a matter of judgment-and we elect or hire public officials based in large part on what we perceive to be their judgment. The key is a sense of proportionality between ends and means.

There is good reason for prosecutors to hold powerful public officials to a higher standard, and to target them for selective investigation and prosecution based on information of minor crimes that would not be pursued in the ordinary case. Drug use and other petty criminality by officials often involves or affects the performance of their official duties. It is a legitimate prosecutorial function to expose such conduct for scrutiny by the public as well as the courts.

But there are important costs to targeting officials for extraordinarily aggressive investigations on suspicion of such minor crimes. (Barry’s alleged perjuries were serious crimes, and suspicions of official corruption were also part of the calculus behind the Vista sting, but the sting was never likely to yield direct evidence of anything but crack use.) Such targeting risks preempting, rather than informing, the voters’ function of passing judgment on elected officials. It can create the appearance-or sometimes reflect the reality-of improper prosecutorial motivation, whether it be self-aggrandizing lust to bag a big fish or political or racial animus.

The appearance of improper motivation is a special danger when white prosecutors target black elected officials. It risks stirring the pot of racial and ethnic loyalties and resentments that have long skewed the operation of the criminal justice system.

In earlier times prosecutors took advantage of white jurors’ bias against black defendants. It still happens. One legacy of this is that some black jurors close their eyes to evidence against black criminals out of a misguided sense of solidarity.

In the wake of the Barry case Jay Stephens is resented by many blacks, intensely if unfairly, as an unelected, white, Republican meddler in the politics of their city. His office will pay a price for that, day in and day out, with juries, witnesses, and others.

Appeals for race-based nullification of charges against black defendants regardless of the evidence are striking an increasingly responsive chord elsewhere too. Witness the demonstrations and editorials in the black press in New York vilifying the victim-and making victims of the defendants-in the Central Park jogger case.

Yet the guilty verdicts in the jogger trial suggest that black jurors (of whom there were four in the jogger trial) will convict black defendants when the evidence is solid and there is no appearance of governmental overreaching. And prosecutors should not let false cries of racism deter them from pursuing evidence of crime by public officials.

They should, however, temper their zeal with wisdom. And a part of wisdom is a decent respect for the opinions of mankind, including the views of law-abiding blacks whose history has taught them to suspect the worst when law enforcement trains its heaviest artillery on prominent blacks.

The lesson of the Barry case is that tactics like the Vista sting, however well motivated, antagonize the citizens and jurors on whose trust prosecutors must depend. The Barry investigators got their man, after a fashion. But they also got the racial polarization that they invited and the jury nullification that they deserved.

Stuart Taylor, Jr.

Online Archive

by Stuart Taylor, Jr