Judges' questions favor Barry at hearing seeking leniency

May 01, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Former Washington Mayor Marion S. Barry Jr. got an apparently sympathetic hearing in a federal appeals court yesterday as his lawyers pleaded for a chance to get his six-month prison sentence for using cocaine nullified or at least reduced.

Although the ex-mayor also wants his one-count conviction thrown out, two attorneys for him largely put that point aside and concentrated their attack on the sentence during the hour-long hearing before a three-judge panel of the U.S. Circuit Court of Appeals. Two of the three judges' reactions were clearly favorable.

Mr. Barry's main defense lawyer, R. Kenneth Mundy, said outside the U.S. Courthouse that, if the Circuit Court did order a new sentencing hearing for Mr. Barry, a sentence limited to probation would be the first goal. As an alternative, the lawyers would seek to have the sentence cut down by at least two months, to a total of four, Mr. Mundy indicated.

Mr. Mundy, standing before a throng of reporters and news cameras, suggested that the defense lawyers would be making much of the point that the former mayor has been "drug-free" since his arrest in January of last year. "This is not the same Marion Barry," the lawyer said.

Mr. Barry, now pursuing what Mr. Mundy called "several business activities," attended the court hearing but avoided reporters afterward.

U.S. Attorney Jay B. Stephens, talking to reporters, appeared to be anticipating that the case would be going back to U.S. District Court for a new sentence. He indicated that his office would again press for a six-month sentence as "appropriate."

One of the key points made by Mr. Barry's attorneys -- a technical legal challenge to the factors the trial judge used in setting the sentence at six months -- seemed to draw the most sympathetic reaction from two judges. The third judge was silent.

That point is based on the response of the trial judge, U.S. District Judge Thomas P. Jackson, to prosecutors' claims that Mr. Barry tried to "sabotage" the investigation and prosecution of him.

Although Mr. Barry's lawyers contend that those claims were not related to the one drug-using charge on which the former mayor was convicted, the judge still took the prosecutors' "obstruction of justice" complaint into account when he imposed a prison term of six months.

Mr. Mundy dwelled on that issue yesterday, and Judges Patricia M. Wald and David B. Sentelle then used his argument as the basis for aggressive or skeptical questions to Assistant U.S. Attorney Elizabeth Trosman. At one point, Judge Wald said that the point was "critical" to her "and I think for my colleagues."

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