- The Washington Times - Thursday, June 21, 2007

D.C. Council member Marion Barry avoided prison time when a judge today denied a bid to revoke his probation after he failed to file tax returns on time for the seventh straight year.

U.S. Magistrate Judge Deborah Robinson said prosecutors hadn’t proved beyond a preponderance of the evidence that the former mayor “willfully” failed to file his 2005 D.C. and federal tax returns on time.

Mr. Barry, Ward 8 Democrat, is on probation after he pleaded guilty last year in connection with his failure to file tax returns for the six previous years. He faced up to a year in prison if Judge Robinson granted prosecutors’ request.

“To find otherwise would be to disregard a Supreme Court precedent,” Judge Robinson said of her ruling.

Mr. Barry after the hearing told reporters he thanked God, his lawyer and the judge for the outcome.

“We said all along this case should have never been brought,” Mr. Barry said.

He declined to answer questions from The Washington Times about why he did not file his returns on time. And Mr. Barry’s attorney, Frederick Cooke, also declined comment: “I can’t say and I won’t say,” he said.

Mr. Barry eventually filed his 2005 D.C. and federal income tax returns in February, after his wages were garnished and prosecutors first sought to revoke his probation.

The ruling marks Mr. Barry’s second significant legal victory in as many weeks. Last week, he was acquitted in D.C. Superior Court on charges of drunk driving.

In arguing to revoke probation, Assistant U.S. Attorney Thomas Zeno relied in part on Mr. Barry’s own words at sentencing last year.

“He came in here and said there is no excuse,” Mr. Zeno said. “We’re here because he failed to file and he knew what he was doing.”

“Did Mr. Barry know he was required to file his taxes? And the answer is, of course he did,” Mr. Zeno argued.

But Mr. Cooke said there was no proof Mr. Barry “willfully” failed to file on time. And he discounted Mr. Barry’s statement at sentencing, in which the former mayor said “there is no excuse” for failing to file.

“He was not making an omnibus statement for all time,” Mr. Cooke argued. “This is not a statement of a person who is well schooled in legal concepts.”

Mr. Barry, who served six months in prison after his 1990 arrest on crack cocaine charges, appeared to have cause for optimism entering the hearing.

Earlier this year, Judge Robinson refused to rule on the prosecutors’ request, saying the probation office, not the U.S. Attorney’s Office, should file the motion to revoke probation.

However, after prosecutors appealed, Chief Judge Thomas Hogan ordered Judge Robinson to consider the prosecution’s case on its merits.

Ultimately, Judge Robinson ruled that even if Mr. Barry knew he was supposed to file his 2005 tax returns, it’s unclear whether he acted willfully.

She cited several legal rulings, including one requiring “bad purpose or evil motive” to establish willful behavior.

Prior to the hearing, Mr. Barry appeared in good spirits, though he later said “you’re always nervous.”