Hearing Ordered on Ban of 2 Blacks From Barry Trial : Drugs: The judge had said the presence of Farrakhan and Stallings would send ‘impermissible message.’ Jurors see a 1986 video tape of the mayor.

The U.S. Court of Appeals for the District of Columbia opened the way Thursday for a probable lifting of the order banning controversial black religious leaders Louis Farrakhan and George A. Stallings Jr. from attending the drug trial of Mayor Marion Barry.

A three-judge panel of the Court of Appeals sent the issue back to U.S. District Judge Thomas Penfield Jackson for a full hearing, but made it clear that Jackson’s rationale for the ban was unconstitutional.

Judge Jackson had insisted that the mere presence of Nation of Islam leader Farrakhan and breakaway Roman Catholic priest Stallings would send a silent and “impermissible message” to jurors and witnesses, since both men have publicly stated that the trial of the black mayor was racially motivated.

Moreover, Farrakhan has long maintained, as Jackson’s lawyers put it in their brief to the Court of Appeals, that “drug abuse is a problem inflicted on black Americans by a white American conspiracy.”

But, in their order, Court of Appeals Judges Lawrence H. Silbermen, Douglas H. Ginsburg and Clarence Thomas cited the constitutional right of Americans to attend trials and wrote: “No individual can be wholly excluded from the courtroom merely because he advocates a particular political, legal or religious point of view--even a point of view that the district court or we may regard as antithetical to the fair administration of justice.

“Nor can an individual,” the judges went on, “be wholly excluded from the courtroom because his presence is thought to send an undesirable message to the jurors, except that of physical intimidation.”

Judge Jackson seemed to recognize that he had been taken to task by the Court of Appeals when he stared down at Arthur B. Spitzer of the American Civil Liberties Union, which has taken up the case of Farrakhan and Stallings. Spitzer started to read the pertinent quotes from the Court of Appeals when Judge Jackson interrupted him.

“I’ve read the order,” the judge snapped.

Judge Jackson asked Spitzer to ensure that Farrakhan and Stallings attend a hearing on the issue this morning. “I want to have an undertaking from them that they understand the decorum of the court,” he said.

The judge also said that he wanted to see if the Barry defense team would still give Farrakhan and Stallings passes to attend if federal marshals rearranged the spectator seating for the trial.

That seemed to indicate that, while Judge Jackson is prepared to bow to the constitutional arguments of the Court of Appeals, he still does not want Farrakhan and Stallings to sit in the front row seats usually reserved for guests of the defense.

Meanwhile, in the trial itself, where Barry is accused of a long history of cocaine use and of lying about it to a grand jury, jurors watched a videotape of an ironic Barry news conference in 1986.

In that tape, Barry, who was arrested by FBI agents in a sting operation last January, derided as “crybabies” all those who did not like the idea of undercover police posing as drug sellers to make arrests.

“I have no sympathy with these crybabies,” Barry told the news conference. “We want every crybaby to know that the next person who sells them drugs may be a police officer.”

Defense attorney Robert W. Mance objected to the showing of the tape, saying that it was “inflammatory.” He also said that it could prejudice the jurors by making them see the mayor in a hypocritical light.

But Judge Jackson overruled the objection after prosecutor Judith E. Retchin said that the tape was important because it helped explain why the mayor was “so guarded and suspicious” during the videotaped sting operation. On that tape, played for the jurors in earlier stages of the trial, the mayor refused the suggestion of his former girlfriend Rasheeda Moore that he smoke crack several times before finally agreeing to do so.

The jury also heard a former friend of Moore, fashion model Carol Jackson, testify that she had snorted cocaine with the mayor and Moore one evening in another friend’s apartment in 1986, but had left the apartment after Barry made several unwanted “sexual advances.”

Jackson also said that she had taken cocaine on the first evening that she had met Barry in 1986. But, while she said she saw Barry in the bathroom sniffing and pressing a finger to his nostril, she had not seen him actually ingesting the cocaine that night.

Jackson said that the mayor had suggested that she and Moore and Moore’s sister prepare a city sponsored-program to help teen-agers learn how to use cosmetics and dress fashionably. After they prepared the program, they received a contract from the city for the program. But Jackson said that she grew annoyed with Moore for leaving most of the work to her.