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Touched by a Judge

No jail time. No requirement that he resign from office. No fine. Not even a lecture from the judge. Not even a pro forma pronouncement that Marion Barry had disgraced his office, disrespected his constituents and ripped off the taxpayers.

No, Marion Barry walked out of the U.S. District Courthouse in Washington this morning so relieved that when reporters asked him if he was surprised to get off with probation, he flashed a huge smile, laughed, and said, "I was pleased."

To the glee of his entourage, Barry got off with probation after his conviction for having failed to file federal and D.C. income tax returns from 1999 to 2004.

Magistrate Judge Deborah Robinson ordered that Barry pay the $195,000, plus penalties and interest, that he owes to the feds and the $51,000 he owes to the District, but even that number will likely fall dramatically, because, as Barry made a point of telling the judge, he plans to file amended returns and negotiate deals with the IRS and the city.

It is very, very nice to be powerful and important.

The shame of this case stretches from one end of the courtroom to the other:

The judge was so eager to let Barry off with probation that she three times interrupted the lawyers this morning to seek assurances that the prosecutors wouldn't object to such a light sentence. The judge couldn't be bothered even with the ritual tonguelashing that might have shown Barry that the court believes in equal justice for all. In fact, Barry was so confident that he had this one in the bag that he began his remarks to Judge Robinson by thanking her for her fairness. "It's sort of reaffirmed my sense of justice in this country," Barry said, and then he immediately slapped the court with a smart remark about how he doesn't usually find justice in America.

Barry was unusually contrite and self-effacing in his extended remarks to the court. He not only admitted what he'd done and said that there was no excuse for anyone not to file tax returns, but he also made the most frank and forthright admission of his addiction that he's ever given in public. "I take full responsibility," he said repeatedly. "I've been embarrassed. I've also embarrassed the citizens of our city and the citizens of this country. To the citizens of the District of Columbia, I apologize. I'm deeply sorry."

Barry's voice crept so low that the judge at one point had to reach over and turn up the volume on his microphone.

But Barry couldn't leave his apology at that. Instead, he lectured the judge on faith and redemption. "I'm a Christian person who believes in redemption, who believes in forgiveness," he said. "I ask for forgiveness from this court and this community. I have suffered a lot of emotional feelings from this....I ask this court to take all this in context."

And that context, the council member from Ward 8 said, was that he is a recovering addict. "You know the seriousness of addiction, this disease," he said. "It's tough, it's baffling. It defies all logic as to why this happens." Barry said that "90 to 95 percent of people fall off the wagon, as we call it." But he said the solution "is not too hard to figure out: Strong belief in God, don't associate with people who are involved in this kind of activity, go to meetings."

Barry, on a roll, made the same pitch to the judge that he's made for many years, that whatever his personal foibles and misdeeds, he's never neglected his work for the people. "I wouldn't let anything get in the way of my work for this city. My work has not suffered. I've suffered personally...."

And, amazingly, the judge bought it.

But the worst offender here is neither Barry nor the judge. The award for most egregiously two-faced performance in this case goes to the federal prosecutors who had the audacity to come into court today, rip Barry for violating the spirit of the plea agreement that bought him probation, catalogue Barry's flagrant disrespect for the court and the system, compare Barry's cockiness to the earnest efforts of ordinary citizens trying to make ends meet--and then turn around and give a nice big old wink to a comfy deal for the ex-mayor.

Prosecutor James Cooper was persuasive in his comments to the judge about how Barry has repeatedly violated the spirit of his agreement with the government, failing to arrange to pay his debts to the IRS and D.C.

"Frankly, your honor, given the lack of vigor Mr. Barry has demonstrated..., we're not confident about what Mr. Barry is going to do going forward," Cooper said. "Mr. Barry has been, for want of a better word, recalcitrant in taking advantage of a very reasonable agreement. What this case is about and always has been about is a failure of personal and public responsibility."

But the ultimate failure of public responsibility came minutes later, when Cooper repeatedly declined the judge's invitations to scrap the plea agreement and seek something more serious than probation for Barry.

Instead, Cooper delivered a self-serving little speech about how there are good people all across the District who struggle to make ends meet and still fulfill their obligations to the tax man. "It frankly is an insult to those people that a sitting public official has behaved as he has," Cooper said of Barry. "These are serious offenses. The court should ensure that Mr. Barry is held responsible."

But the judge was happy to rely on the prosecutor's failure to seek a tougher penalty, and the prosecutor was unwilling to back up his tough words with any action that might displease Barry. Result: Barry walks away smiling and laughing. (You can watch him here.)

By Marc Fisher |  March 9, 2006; 3:14 PM ET
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Please email us to report offensive comments.

This is outrageous.No one believes the Mayor for Life is serious.
Those who took hope and encouragement from the thoughts expressed today in Jabari Asim's column just got kicked in the gut---again.Don't the judge, the prosecutors and all those who worked on this case realize that Barry is laughing at THEM?

Posted by: jmsbh | March 9, 2006 4:03 PM

The people of the District of Columbia deserve Marion Barry -- he represents all that is wrong with it from K Street lobbyists to the people in the White House who believe they are above the law. Why shouldn't he strut -- no one is going to hold him responsible.

Posted by: Citizen X | March 9, 2006 4:05 PM

The most amazing thing about this isn't that the judge let him off with a slap on the wrist, but that there's no ramifications or consequences when it comes to his job on the DC Council. That is what is truly mind-boggling.

Surely most of us would lose our jobs (for one reason or another) if we tested positive on a drug test. But not a city council member.

I think I need to actually move into the city, so I can run for council and then, well, you know... snort away, snort away.

And so many in DC wonder why Congress looks down on the city's leaders.

Posted by: corbett | March 9, 2006 4:06 PM

It makes me kind of sad that that apparently the rest of America hates the citizens of DC so much and feels that we "deserve" everything that happens to us. Barry, crooked lobbyists, etc. all seem to be the fault, apparently, of folks like me, whose families have been in the District since before the District even existed.

I can neither explain nor understand why Mr. Barry and others can get away with what they get away with, but it is very hurtful to hear that I deserve everything that happens to me because I live here.

Mr. Barry doesn't represent me because we're not related. And I live in his ward.

Obviously Congress isn't the only group of people that looks down on DC.

Posted by: Alice Thornton | March 9, 2006 4:45 PM

OK...assuming that the judge was feeling some compassion for 70 year old Marion Barry, shouldn't she have mandated that he go into TREATMENT FOR HIS DRUG PROBLEM?

So he went in for treatment before and failed. TRY AGAIN. Studies show that sometimes it takes two or three efforts to kick a bad habit.

If she really cared about him, she would have tossed his butt into rehab. Or, perhaps she's like a lot of folks who just dismiss, with amusement, any doddering 70-year-old man they happen to come across.

Posted by: sd in md | March 9, 2006 5:48 PM

If you or I had done what Barry did, we would be in jail. Maybe just a few weekends, but we would be taken into custody.
Given his fragile health, he probably won't even live long enough to pay off his back taxes. In short, he gets off virtually scot free while the rest of us go on facing jail time if we violate tax laws.

Posted by: some guy in dc | March 9, 2006 7:26 PM

I owed back taxes for four years of non- payment. I still owe for one year. I came clean and am now on a payment plan. People that owe back taxes don't go to jail and they typically don't get probation. You people have been reading too much IRS propoganda.

Barry's situation is exactly the opposite of what most people think. He was made an example of precisely because he is Marion Barry.

Posted by: Ed | March 9, 2006 7:40 PM

Like Ed, I once fell behind in my taxes, and I paid some stiff penalties, but that's all. Perhaps I got my affairs in order sooner than Barry or even Ed, because my only contact w/ the IRS was the letters they sent me about paying up. There was no attempt to prosecute. I agree, though, that it's not so clear that tax violators always go to jail.

Posted by: SJG | March 9, 2006 8:51 PM

Ed and SJG are correct; I spoke to several prosecutors this afternoon and they mainly agreed that non-payment of taxes almost never lands you in jail. Rather, you work out a payment plan and pay a fine. So the special treatment afforded to Barry consists primarily of his not being fined. But again, the difference here is that since he is a public official, he ought to be held to a higher standard and he is in fact being held to a lower standard.

Posted by: Fisher | March 9, 2006 8:57 PM

Fish, I'm a relative newcomer to your columns. I started reading them since the whole stadium thing started to take a life of its own. You do a great job. I think the biggest problem I'm having with Barry's sentence is his plea for leniency because he basically is someone who doesn't worry about himself because he's too busy helping those less fortunate. It's just another example of a corupt individual who is taking advantage of his power base. The saddest part is that those who believe in him won't be swayed at all....

Posted by: EDS | March 10, 2006 9:22 AM

The citizens of DC deserve so much better than what they get regularly. I can't figure out for the life of me, though, why people have voted for Marion Barry time and again when all he's done is bring embarassment and shame to the people he represents. I haven't lived here long, so maybe I'm missing something, but all I knew about DC before I moved here was that it's the nation's capital and Marion Barry smoked crack while mayor. It's true that his problems are not the fault of the people of DC, but may I suggest that the next time he runs for something, that people vote against him? You all deserve so much better than this.

Posted by: bamagirlinVA | March 10, 2006 9:56 AM

The odd thing is, I never voted for Barry. I grew up in Petworth. My parents never voted for Barry. A year and a half ago when I got priced out of Ward 4 via procrastination I purchased a house in Congress Heights. Barry just happened to be city councilmember for that ward. Ward 8 is now very sparsely populated, since Douglass and Stanton Dwellings were demolished. However, there are HUNDREDS of brand-spanking new (some $400,000+) homes going up in my immediate vicinity. Old homes are being renovated, apartment buildings are being converted into condos. Just like Ward 4.

However, me, and all of the folks like me who move to Ward 8, will have everybody wondering, "Why do those people keep voting for Barry?" Trust me, Barry was not what attracted me to Ward 8; it was housing prices. But, I DIDN'T VOTE FOR HIM!

Posted by: Alice Thornton | March 10, 2006 10:38 AM

Hey Fisher, Could you do a little bit more research and find out what others like Barry have been sentenced to? I don't mean on the taxes, you've already said you've looked into that, but what about those who fail a drug test while awaiting sentencing?

He can't be the first for that, so there must be others, and I simply cannot believe they got off as easy as he did.

And you are right, public officials should be held to a higher standard, and that's why what bothers me the most about all of this is the fact that he's able to keep his job on the City Council without any consequences.

Posted by: corbett | March 10, 2006 1:55 PM

He's got major issues but normally the reason a person does drugs (depression, stress and wanting to get away from something).

I just don't don't understand why he doesn't go off to some place a write his life story or something.

Posted by: Frankey | March 10, 2006 2:43 PM

To all you commenters who keep saying people don't go to jail in DC for tax offenses, I give you the cautionary tale of jailbird Leland Schwartz of States News Service...,a,11,q,620812,otrNav_GID,1678.asp
Schwartz's situation is not an exact match of Barry's, but the sums are similar.
Friendless Schwartz goes to the slammer while arrogant Barry goes home.

Posted by: some guy in dc | March 12, 2006 5:21 PM

Probation is probably the best sentence for Mr. Barry because it helps ensure that he will pay back what he owes instead of leaving the taxpayers to pick up his tab.

The Post’s March 10 story, “Barry Sentenced to Three Years of Probation,” is unhelpfully silent on whether Barry was ordered to pay restitution and in what amount. I suspect that he was.

In financial crimes, it often makes sense to place the defendant on probation. When restitution is ordered, a sentence of probation helps the court ensure that restitution will actually be recovered. Plus, people on probation can work and earn the money it takes to pay restitution. In any event, if the defendant stops paying restitution, he can be imprisoned briefly. See 18 U.S.C. 3563(b)(10). The Post acknowledges this key fact in the story I mentioned above.

I'm no friend of Mr. Barry, and I think tax evasion is merely the latest discrete display of his lifestyle of illegal behavior, but the taxpayers of the United States deserve to have him pay his fair share. Probation is probably the best way to achieve that.

Posted by: DC lawyer chic | March 13, 2006 5:02 PM

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