Lawyer Appeals Barry Cocaine Sentence, Citing Possible Bias

Former Mayor Marion Barry should be resentenced by a different judge on his cocaine conviction because his trial judge made comments suggesting bias, Barry’s lawyer told a federal appeals court Friday.

Attorney Adam H. Kurland said U.S. District Judge Thomas Penfield Jackson, in handing down the six-month sentence last September, may have been penalizing Barry out of anger at the jury.

In October, 1990, Jackson told a Harvard University audience that he had never seen a stronger government case, that some jurors did not tell the truth during jury selection and that some were determined to acquit regardless of the facts. Barry was convicted of one misdemeanor possession count among 14 charges.

Kurland said Jackson’s comments left the impression that “the judge, who has indicated a fixed opinion . . . might give a harsher sentence than might have been given” otherwise.

But some members of the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit appeared skeptical.

The judge could have imposed a stiffer sentence under federal sentencing guidelines, Judge James L. Buckley noted. He added, “That is not a description of somebody seized by bias.”

Kurland also argued that Barry should have been given credit for accepting responsibility for his actions. Judge David B. Sentelle noted, however, that when Barry was convicted in August, 1990, on the single count he proclaimed it a vindication.

“There ought to be some sort of straight-face test here” on the acceptance of responsibility issue, Sentelle said.

Jackson sentenced Barry last September after a previous six-month term was thrown out by an appeals court. The former mayor is due to be released April 23.