Marion Barry's Probation Extended for 2 More Years

By Ronald A. Goodbread, Legal Editor

In the continuing epic saga of “Marion Agonistes,” former Mayor and current Council Member Marion S. Barry, Jr., who has cast his shadow over the Capital of the Free World for nearly 40 years now, presented U.S. Magistrate Judge Deborah Robinson with the task of once again wrestling with the turgid problem of whether to pull the plug on him and send him to jail or to continue to meter out measured responses to his various defaults. According to her, the Government made her decision much easier.

Barry, whose political decline makes that of the late Generalissimo Francisco Franco (who was reported as “dying” from 1969 to 1975) seem like a sudden death syndrome, pled guilty in 2005, to one count each of willful failure to file a federal and a local tax return and to pay all taxes due for the tax year 2000. Judge Robinson continued Barry’s sentencing so that he could make arrangements to file all past due returns and pay all back taxes, interest, and penalties. In March 2006, she sentenced him to three years concurrent probation, one of the general terms of which was that Barry would “not commit another federal, state or local crime,” with a special condition that he would “comply with the directives of the federal and local tax authorities regarding payment of taxes, and provide verification to the United States Probation Office upon request.”

In January of this year, Barry’s Probation Officer informed Judge Robinson that the former Eagle Scout had failed to comply with his directive to produce proof of filing of his 2007 federal tax return and of his payment of taxes due for that year, which was not part of the original charges against him. Alleging that, in other words, Barry had committed a federal new tax offense, the Government then filed an unusual Motion to Revoke Probation and incarcerate him or, alternatively, to extend his probation for two years. The Probation Officer requested a hearing on the issue at which the Government also asked that Barry be ordered to provide proof of filing and payment. Before the Court could act, however, Barry’s lawyer represented that he had since filed federal and local tax returns for both 2007 and 2008, and pointed out that the Government was requesting revocation even though Barry’s Probation Officer was not.

Barry’s excuse for his tardiness was that his declining health condition had led him to the point where he “was simply overwhelmed by the medical/health issues that confronted him” and could not focus on his tax obligations. He had given a similar excuse years earlier when he was Mayor and suspected using of illegal drugs, protesting in response to repeated questions by the media, that he could not give a urine sample because of health problems. This was prior to the infamous FBI “she set me up” video sting in January 1990, which caught him in the act of using crack cocaine with a former girlfriend in an upscale local hotel room. To be fair to Barry, though, in 1995 he was successfully treated for prostate cancer and in February of this year he was the recipient of a kidney transplant from a female admirer and, given his age (73), he had a better argument this time around, particularly on the issue of whether he “willfully” failed to file the tax return. The Government pointed out, however, that his putatively poor state of health had not kept him from running a successful re-election campaign against five opponents in November of last year, vacationing recently in Jamaica, and continuing to represent Ward 8 on the City Council. A sharecropper’s son born in Itta Bena, Mississippi, Barry’s intellect has too often been underestimated by his detractors, usually to their great dismay. He is not only a 1958 graduate of LeMoyne-Owen College in Memphis, with a B.S. in chemistry, but in 1960, he also earned a Master of Science degree in organic chemistry from Fiske University in Nashville, the first back college to earn a Phi Beta Kappa chapter. He was three years into a Ph.D. program in chemistry at the University of Tennessee when his involvement in the heady activities of the Civil Rights Era eclipsed his studies.

At the revocation hearing, the Government did not call any witnesses but moved into evidence five exhibits relating to the failure to file and had alleged in its motion that Barry was behind on his tax payment agreement with the District. Pressed by the Court, the Assistant U.S. Attorney assigned to the case suggested that after Barry’s probation was revoked he should be required to spend one month’s incarceration for each violation, to be served in a halfway house facility or, alternatively, on weekends at the D.C. Jail.

Hedging his bet, Barry’s lawyer reiterated his argument that his client’s Probation Officer was not asking for revocation and requested continuing the current term until it expired or, at most, a one year extension. The Probation Officer testified that Barry’s overall compliance to date had been “satisfactory” and did not dispute Counsel’s representations that Barry was now current on all his tax filings. He added, that should Barry be revoked and incarcerated, in view of his recent transplant surgery, the nearest available federal institution with adequate medical care facilities was on the Eastern Shore in Kent County, Maryland. After this testimony, the Prosecutor withdrew the Government’s request for any incarceration in favor of a two-year extension of probation and a thirty-day home detention with electronic monitoring.

The Court noted that the Government had not seriously pressed the case for incarceration, relying entirely on the already-known paper record and failing to call a single witness at the hearing who might have pushed the proof of “willfulness” over the preponderance of the evidence line– an element to the offense of “failure to file” which the Court ruled was “an essential element” of the charge. In conclusion, the Court pointed out that, to its knowledge, not only was Barry’s the only case in which the Government itself sought revocation, instead of relying on a request by a probation officer, but also that it then “failed to even attempt to prove” its allegation as to “new violations” against the probationer. Accordingly, finding that Barry’s brief violation fell into the “Grade C” category, the Court ruled that it would follow the recommendation of Barry’s Probation Officer and extend his probation for another two years, nunc pro tunc to March 8, 2009 – which will be two days after Barry’s 75th birthday, still leaving him more than a year to plan his next political campaign for the 2012 citywide election.

Judge Robinson’s Memorandum Opinion and Order, dated May 22, 2009, may be found on the District Court opinions website at https://ecf.dcd.uscourts.gov/cgi-bin/Opinions.pl?2009.