Experts Praise Prosecution's Case but Are Cautious At Predicting Outcome

Some say defense is banking on jury nullification. BARRY TRIAL DEFENSE TAKES STAND

NO one yet dares to predict the outcome of the drug and perjury trial of Washington Mayor Marion Barry. On July 18, after a month filled with witnesses telling the story of how the mayor of the nation's capital repeatedly used drugs during the last six years, and a videotape from a Federal Bureau of Investigations (FBI) sting operation last January showing Barry smoking crack in a hotel room, the prosecution rested and handed over the case to the defense.

Legal experts here generally praise the way the prosecution has presented its case. They doubt the defense will be able to do much about the seemingly irrefutable evidence that the mayor frequently used drugs. Still, they display great caution when asked how it will end and won't rule out anything, including a last-minute plea-bargaining agreement.

``No way I am going to guess the outcome,'' says former United States Attorney Joseph diGenova, who initiated the investigation of Mayor Barry's drug use. ``Anything can happen,'' he says, adding that he stopped predicting the outcome of Washington trials after John Hinckley was found not guilty for reasons of insanity of the attempted murder of President Reagan in 1981.

``We've heard a very damaging story,'' says Georgetown University law professor Paul Rothstein, ``But the question is still open whether the jury will believe it. It's not a hopeless case for Barry.''

Says Washington trial lawyer Bob Luskin, ``I can't imagine Barry will walk completely.'' Mr. Luskin does not exclude a compromise verdict in which the jury finds the mayor partly guilty of some of the misdemeanor charges.

The government's case against the mayor consists of 14 charges, including one charge of conspiracy to possess cocaine, 10 charges of possession of crack and cocaine, and three charges of lying about his drug use to a grand jury. The conspiracy and possession charges are misdemeanors, while the perjury charges are felonies. If convicted of perjury charges, he would serve a jail term and would never again be able to run for public office.

The trial has dominated the news in Washington since early June when jury selection began. It has also polarized the community, and, according to some, heightened racial tension in this city, which is 70 percent black. Barry, who is black, has charged that his case is one of many in which the government's intention is to go after elected black officials. Many blacks in this city seem to feel the same way.

Legal experts, like Luskin and George Washington University law professor John Banzhaf, say there might be a case of the government ``overreaching'' when it launched the sting operation against Barry last January.

Government overzealousness ``can potentially backfire. All you need is one vote,'' Luskin says.

Mr. Banzhaf thinks the defense is banking on jury nullification in which it declares Barry not guilty simply because the government was out to get him. A hung jury is also a possibility.

``I have very, very serious doubts that the jury will convict him,'' says Banzhaf, who thinks the perjury charges are the weakest. ``However, a guilty verdict on one or two misdemeanor charges would not surprise me. It would be a nice compromise verdict.''

Mr. Rothstein also feels the perjury charges are the hardest to prove while the case that drug use took place is ``fairly airtight.''

Ira Robbins, an American University law professor, says that ``it looks bad for the mayor,'' and, in contrast to Banzhaf, he says he believes the government has presented a ``credible case'' that Barry lied to the grand jury.

The case for the defense is not deemed easy by legal experts, whose main question July 18, centers around whether Barry will take the stand. Mr. Robbins says it would be ``ridiculous'' and a ``disaster'' for Barry to do so. DiGenova says he does not think that will happen because ``the risks are exceedingly high.'' Banzhaf says Barry has ``nothing to gain'' by taking the stand.

Still, no one excludes that this won't happen. In general, it is hard for a defendant to beat a perjury charge without taking the stand. Also, political reasons might dictate Barry's actions, and he seems eager to testify. If so, he would overrule Kenneth Mundy, his defense lawyer, who would prefer to build his case on impugning the prosecution's motives, casting doubt on the witnesses, and calling character witnesses. Some think the mayor's wife, Effi, could take the stand.

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