WASHINGTON -- Prosecutors announced in U.S. District Court yesterday that they have decided not to retry Mayor Marion S. Barry Jr. on any of the 12 counts of drug possession and perjury that deadlocked the jury at his trial.
Assistant U.S. Attorney Judith Retchin told Judge Thomas Penfield Jackson, "The government has made a determination not to seek retrial on the pending counts."
At the announcement, the mayor -- who had said before his trial that "all it takes" to hang a jury was "one juror saying 'I'm not going to vote against Marion Barry'" -- grinned.
After the 10-minute hearing, Mr. Barry told reporters he was "obviously relieved" by the announcement. He had been advised by his attorney, he said, to say no more.
The mayor announced before his trial that he was abandoning his intention to seek a fourth term, but after the trial, Mr. Barry, a Democrat all of his political career, announced that he would run as an independent for an at-large seat on the District of Columbia City Council.
Judge Jackson set Oct. 26 -- 11 days before voters go to the polls to decide Mr. Barry's political fate -- as the date for sentencing Mr. Barry on the one drug-possession count on which he was found guilty. In the trial, which ended Aug. 10, the jury acquitted him of one other drug-possession count.
Mr. Barry faces a possible maximum sentence of one year in prison and a $100,000 fine, although federal sentencing guidelines do not recommend incarceration for a first-offense drug-possession misdemeanor.
But U.S. Attorney Jay P. Stephens, who followed Mr. Barry to microphones set up by the news media outside the courthouse, indicated he would demand a jail sentence for Mr. Barry. The mayor has "flaunted mistakenly" the trial jury's "inability to reach agreement on all counts," Mr. Stephens said, adding that charges of "drug abuse and deception" hang "like a dark cloud" over the mayor.
"When all the dust has settled, in the final analysis, the ultimate truth remains: The chief executive of this city, charged with the responsibility for leading the fight against illegal drugs and violence, has himself been convicted of contributing to that human devastation," Mr. Stephens said.
Asked whether he would seek "jail time" for Mr. Barry, the federal prosecutor replied that it was "premature to say" but that "the one-year imprisonment that Mr. Barry now faces provides an adequate basis" for the court to "punish" the mayor.
Judge Jackson gave no indication yesterday of his sentencing intentions except to make it clear that he planned to take a very close look at the mayor's background and attitude toward his conviction before making up his mind. Mr. Barry, for example, has described his trial as a "political lynching."
Ms. Retchin, aiming at immediate sentencing, suggested that the judge waive a presentencing report on Mr. Barry. Judge Jackson cut her off, saying he wanted the report and ordering Mr. Barry to report to a probation officer this morning as the first step in its preparation.
At the sentencing hearing, federal prosecutors will make a formal motion for dismissal of the 12 unresolved charges against Mr. Barry. Judge Jackson is expected to grant the motion.