WASHINGTON — A federal judge Friday refused to throw out cocaine and perjury charges against Mayor Marion Barry, rejecting a claim that the government had jeopardized his life by permitting him to smoke 87% pure crack in a sting operation.
U.S. District Judge Thomas Penfield Jackson ruled that Barry will go on trial June 4 as scheduled, but he left open whether there will be one or two trials.
Barry, who sat through a daylong pretrial hearing, said he felt "very good" about his prospects and that he is "excited" about getting the proceedings under way.
Barry, a three-term mayor who has yet to declare whether he will seek a fourth term in the September primary, is rated neck and neck against city council member John Ray, an announced candidate, according to a Washington Post poll published Friday.
R. Kenneth Mundy, Barry's lawyer, had sought dismissal of the charges on grounds that the sting operation last Jan. 18 at a downtown Washington hotel, where the mayor was allegedly videotaped as he smoked crack in the room of a woman friend, constituted "impermissible" government conduct.
But Jackson declined to hear a cardiologist who would testify, Mundy said, that the sting operation was "a lethal risk" because it combined crack with cognac that Barry allegedly drank at the invitation of the friend, Rasheeda Moore, who was secretly cooperating with FBI agents.
The agents were mindful of the risk, Mundy argued, because they told Barry as they arrested him that they had medical personnel with them.
Jackson held that a defendant's due-process guarantees "are violated only in the narrow category of cases where the challenged conduct includes 'coercion, violence or brutality to the person.'
"By either the prosecution or the defense account of the events of the evening of Jan. 18, 1990, defendant's ingestion of the crack cocaine provided by the undercover officer was volitional on his part," Jackson said. "No violence occurred, and no coercion was employed."
The judge turned down several defense motions, but did order the government to give Barry's lawyers under seal the names of more than 10 people with whom Barry is alleged to have obtained, provided and used crack and cocaine over a span of nearly six years.
After reviewing this material and other items in a "bill of particulars" that Jackson ordered prosecutors to provide, Mundy will decide by Tuesday whether he wants to seek a separate trial on six new charges alleging a lengthy pattern of cocaine abuse that were contained in a superseding indictment issued May 10.
Barry's lawyer challenged the admission into evidence of laboratory analysis of Barry's hair samples that showed the presence of cocaine residue. The judge denied the motion but indicated he would consider it again during the trial.
"The presence of cocaine in body specimens indicates relatively recent ingestion and recent experience with a substance may permit an inference of both a present familiarity with its properties and a willingness to be using it again," Jackson said in a written order.
The judge also denied Barry's motion to suppress the videotape and audiotape recordings that the government made of the sting operation, noting that one occupant of the room, Rasheeda Moore, had given her consent to the taping.
If convicted on all 14 counts, Barry would face a maximum sentence of 26 years in prison and $1.85 million in fines.