CURL: Barry holds court on D.C. streets

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By Joseph Curl POLITICAL THEATER

Nineteen years after Marion Barry defended himself against federal cocaine charges by saying he had been set up, the former four-term District mayor on Thursday said the government is still out to get him.

Making yet another appearance in the downtown district court for a hearing on the continuing case of "United States of America vs. Marion Barry," the 73-year-old politician, now frail and gaunt but still brimming with verbal vigor, took to the sidewalk microphones to dispute charges that he violated his probation after failing to pay more than $275,000 in back taxes.

"They would make it appear that I'm just a scofflaw, that I don't care about nothing and nobody, but if you look at any case, the government goes to an extreme to paint the worst picture it can, distorts the truth," Mr. Barry said. "Like throwing a fish against the wall, hoping something catches."

The combative comments came after a bizarre day in U.S. District Courtroom 4 that featured a prosecutor's last-minute withdrawal of a demand that Mr. Barry go to jail for his transgressions as well as a rather stern lecture by an increasingly impatient judge.

But it started for Mr. Barry with laughs and hugs - from reporters - as he swept into the hallway outside the courtroom wearing a gray, feather-festooned fedora, a sleek but wrinkled full-length black coat, a gray suit, a pink shirt with white collar and floral pink tie.

The mayor hugged longtime TV reporters and even did a dance to prove he was feeling just fine, only two months after kidney replacement surgery. News4 reporter Tom Sherwood suggested Mr. Barry would have drawn more sympathy from the judge if he had arrived in a wheelchair.

Mr. Barry was all smiles as he waited for U.S. Magistrate Judge Deborah A. Robinson to hear Assistant U.S. Attorney Thomas E. Zeno's call to revoke Mr. Barry's probation and send him to jail. The prosecution contends Mr. Barry violated terms of his March 2006 sentence by failing to file past tax returns within a court-ordered deadline and paying no back taxes between July 2008 and March 2009.

Mr. Zeno got off to a bad start. "We don't intend to call any more witnesses," he told the judge. With furrowed brow, she interrupted: "You said 'any more witnesses.' You haven't called any at all," she said, prompting titters from Mr. Barry's friends and family.

But the prosecutor rebounded, recounting what he said were repeated violations of the mayor's probation. "This is the third time this defendant has appeared before this court for exactly the same conduct," Mr. Zeno said. Citing Mr. Barry's claim that he failed to adhere to his probation because he was "distracted by his illness," the prosecutor noted that Mr. Barry took a vacation but that his unpaid taxes "take priority over going to Jamaica for six days."

Still, the prosecutor burned again when he said he had no specific recommendation on Mr. Barry's length of incarceration, prompting Judge Robinson to note that "it appears you are reluctant to articulate the government's request."

"A month," Mr. Zeno finally said, to be served either on weekends, or perhaps 30 days in a halfway house.

Barry lawyer Frederick D. Cooke Jr. questioned the government's "unusual filing," noting the court, not the probation office, usually instigates revocation of probation hearings. He said that his client has been making "involuntary payments" to cover back taxes and has sought to fully comply with the court's order.

"If there were mistakes made, they were driven by concerns for his health," said Mr. Cooke, adding that Mr. Barry was struggling with questions like, "How much time do I have left and is this renal failure going to kill me?"

Arguing that "the government has been overly aggressive in this case," Mr. Cooke pressed his case that there was no "willful" flouting of the probation. Senior U.S. Probation Officer Kurt Panzer followed, calling for an extension of the probation, not jail time.

In a surprise about-face, Mr. Zeno concurred, pulling his demand that Mr. Barry's probation be revoked. When the prosecutor, who had not addressed "willfulness" during his statement, tried to belatedly do so, Judge Robinson would have none of it, repeatedly asking why he had not argued the point before.

With the judge setting no time for when she would rule, Mr. Barry left the courtroom, declaring that "it's Emancipation Day."

Outside, the mayor, who served a six-month prison term in 1990 after he was videotaped in a hotel room smoking crack cocaine during an FBI sting, said, "I think it's a great day, for me, anyway."

But the reporters were far more interested in his health.

"The kidney is working fine, in fact its overworking," said the mayor, adding that he drinks "gobs of water, water, water - the pure, clean D.C. water," he added to laughter. Then, helped by two aides, Mr. Barry shuffled to his silver Mercedes station wagon, hugged a supporter who happened to be walking by just then, and drove off.