Practice Points: Immunized Witnesses: Lessons Learned From The Trial Of Mayor Marion S. Barry


	Print or Email This Page July 2006, Page 46 Practice Points: Immunized Witnesses: Lessons Learned From The Trial Of Mayor Marion S. Barry By *Jack King; Elizabeth Kelley* Immunized Witnesses: Lessons From The Trial Of Mayor Marion S. Barry1 — Part I: Jury Instructions and Cross-Examination “[A] witness who believes that he or she may procure his or her own freedom by incriminating another has a motive to falsify. You should receive such testimony with caution and scrutinize it with great care.” — U.S. District Judge Thomas Penfield Jackson, final instructions to jury, United States v. Marion S. Barry, D.D.C., No. 90-68, transcript at 5728. 2 The upsurge in public corruption cases, on Capitol Hill and around the country, reminds us that the rat is always with us. Federal and state prosecutors have relied on flipping co-defendants and unindicted co-conspirators for so long that it bears repeating that criminal defense lawyers, and young lawyers in particular, should recall and realize that you absolutely can win your case by destroying the prosecution’s witnesses. The keys to success are an effective, well-informed cross-examination, a powerful closing argument, and the right jury instructions. Most people have a natural revulsion toward traitors, Judases, and Quislings. So why is it so hard sometimes to turn the jury against the government’s cooperating witnesses and informants? Perhaps because the prosecutor portrays these corrupt, selfish individuals as poor little lambs who, once lost, are now found and only want to tell the “truth” and get back home. If informant or cooperating witness testimony is the prosecution’s strongest evidence, then it is also the most vulnerable part of its case. Even most judges have trouble cozying up with rats, but trying to get them to comment on a witness in front of the jury is a real challenge — but not an insurmountable one. A strong jury instruction from the court could be almost as good as a directed verdict of acquittal. This is an excerpt from an actual jury instruction given 10 years ago in a case in Ontario, Canada: I would say to you that [the government’s witness] is an unsavory character in the extreme.... I ask you to keep in mind this man’s apparent and admitted past in being a liar, a perjurer and obstructor of justice, a police informer and a bully. I would suggest to you that he has absolutely no conscience and absolutely no regard for the solemnity of an oath.3 It would be great to get an instruction like that in a white collar crime, public integrity, or particularly a narcotics case, but that is not going to happen under our rules of criminal procedure. Typically, the court will give your jurisdiction’s pattern “interested witness” instruction upon request. But if you write your own, you are going to have to overcome strong resistance from the prosecutor in order to get your version in — the one in which you wrote the government’s witnesses are all a bunch of cowardly, selfish liars who would commit perjury to save their own sorry skins. You can get the judge to give your cooperating witness jury instruction — instead of the pattern “interested witness” instruction — if you prepare for that triumph from the very beginning of the case. The late criminal defense lawyer R. Kenneth Mundy did just that during the drug and perjury trial of former Washington, D.C., mayor Marion S. Barry. Mundy spent most of the summer of 1990 methodically hammering government witnesses about their plea bargains, immunity agreements, and other deals, both done and hoped-for, damaging their — and the government’s — credibility. In doing so, he created material for a powerful closing argument (in which the FBI was the “Pied Piper” and government witnesses were “little Lucifers or small Satans,” even “full-grown devils”) and a jury instruction informing jurors that only the government has the power to make deals and offer immunity. The Barry case included (1) a star witness against Barry who had been caught in an FBI crack cocaine sting in the U.S. Virgin Islands and needed a way to get out of prison; (2) a former fashion model who had ended up in a homeless shelter and faced credit card fraud charges; and (3) a self-confessed D.C. crack dealer who expected immunity for herself and a friend. Everyone, Mundy argued, had a selfish motive for testifying against the mayor — a motive to falsify, as the judge ultimately instructed the jury. They were a diabolical choir, “singing the same tune, with sheet music provided by the prosecutor,” Mundy said. By the time the jury emerged from deliberations, it had convicted the defendant of only one misdemeanor cocaine possession charge, acquitted him of another, and had hung on the remaining drug, conspiracy and perjury charges. U.S. Attorney Jay Stephens announced that he would not seek a retrial, and the former “mayor for life” was eventually sentenced to six months on the misdemeanor count. Witness Charles Lewis was a former personal friend and cocaine buddy of the mayor and his cronies. A former city employee, Lewis was originally from the U.S. Virgin Islands and split his time between his Caribbean home and D.C. Three days before Christmas 1988, a maid at the Ramada Inn in D.C.’s downtown Tenderloin reported that Lewis had offered her cocaine in exchange for sex when she entered to clean his room. D.C. police responded but turned back when the hotel manager told him that Barry was in Lewis’ room. Lewis and Barry were summoned before the grand jury a month later. Both testified. Lewis denied ever possessing cocaine. Barry had never even heard of the stuff. In March 1989, Lewis was busted at a resort in the Virgin Islands after a female FBI agent from the Washington field office convinced him to sell her a quantity of crack. He was indicted a month later in D.C. on distribution and perjury charges and was facing serious time under the federal sentencing guidelines. He was promised immunity for perjury arising out of his January grand jury appearance and use immunity for any drug crimes in D.C. which his testimony might reveal. He testified a second time before the grand jury and sang “a new song,” as Mundy later told the jury. He was also promised a substantial assistance departure in his Virgin Islands distribution case pursuant to Federal Sentencing Guidelines �5K1.1 for his testimony at trial. (He was ultimately sentenced on the crack distribution charge to five years’ probation and 1,000 hours of community service.) Mundy’s Cross Of Charles Lewis4 Q: Now, sir, by count that is about eight trips of cocaine that you were transporting and crack [sic] into the District of Columbia, right? A: There was no crack involved. It was powder cocaine. Q: Powder cocaine. A: And you said eight and I said less than 12. Q: Less than 12? A: Yes. Q: The government forgave you all that, didn’t they? You are not going to be prosecuted for any of that, are you, if you cooperate in this? A: No, sir. Q: So they gave you back all of that, right? All of those instances of your being a drug courier and bringing drugs into the District of Columbia for distribution here, you were forgiven for all of that, weren’t you? A: As I said, I gain if I tell the truth. I have substantial [sic] to lose if I don’t tell the truth. Mundy persisted and probed the depths and magnitude of Lewis’ deal. Lewis had pleaded guilty in the spring of 1989 and still had not been sentenced. Mundy used that to further undermine his credibility. Mundy asked Lewis to tell the jury the reason he had still not been sentenced. Lewis testily replied that Mundy should ask the government. Q: Let me ask you this reason. Isn’t one of the understandings [plural!] you have with the government that if you testify in this case, after you finish testifying … in this case, the government, the U.S. Attorney’s Office here which is part of the same justice department which prosecuted you in the Virgin Islands, has agreed to send a letter and file what they call a 5K1 report to the court down there to get you leniency, haven’t they? A: I have said that on more than one occasion…. Q: Did the government send down a 5K1 letter to the sentencing court in the Virgin Islands to let them know about your cooperation in all of the time, the 10 months since August of 1989? A: Not to my knowledge. Q: They held it back until you finished testifying here, right? A: Yes. Q: Why is that? A: As I say, you have to ask the government. Q: Well, sir, did you ask? A: No, I didn’t. Q: Do you know whether your lawyer asked? A: I don’t know. Q: So isn’t it true that the government wants to wait and see your performance here before they send a letter down there asking for mercy on your part? A: You’re asking me if — Q: Isn’t that what the understanding is? A: I am saying — MR. MUNDY: Can I have Exhibit 1? I will let you read your understanding. Your honor, may I approach the witness with Exhibit 1? THE COURT: Yes, you may. Q: Take your time and read this and I call your attention particularly to page 2 and the third paragraph. Read it to yourself. A: Oh. Yes. Q: Did I state it correctly? A: Yes. ‘Never Asked Me Any Other Names’ Lydia Reid Pearson testified that she supported herself by selling crack to Barry and others, sometimes selling to Barry on credit and that his tab sometimes topped $1,000. Pearson was only given use immunity for her testimony. Nevertheless, the count relating to Pearson was the only one on which the jury found Barry not guilty. The jury reportedly locked, usually seven for guilty and five for not guilty, on the other drug and perjury counts. By the time they were dismissed, they had not even voted on the conspiracy count because they were unable to sort out a single co-conspirator. Q: Did they ever ask you who you were getting drugs for, did they ever ask you any other names? A: No, they never asked me any other names…. Q: Were they regular customers? A: Yes. Q: Did you provide any information to the FBI concerning them? A: No. Q: Were you asked any information by the FBI concerning them? A: No. Q: Now, were you given any assurances for your cooperation in this case concerning your own immunity or responsibility for prosecution? A: Just what the District Attorney Roberts suggested at the beginning of my testimony. Q: That you would not be prosecuted. A: Yes. Q: Did they tell you whether you would be prosecuted for all of the drug distributions that you were privy to? A: No, they did not. Q: Do you expect that you are going to be prosecuted for those as a result of your cooperation? A: I hope not. Q: One of the reasons for which you hope that you will not be prosecuted is because of whatever cooperation or assistance you give the government against Mr. Barry; is that correct? A: I believe that is correct, yes…. Q: Now, insofar as your own distributions have been concerned, over the course of the past four years, … how many times would you say that you have distributed cocaine or crack? A: Quite a few. Q: Three or 400 times? Just your best estimate. A: I will say three. No more than that. Q: No more than 300 times, and you don’t expect to be prosecuted for any of those distributions, do you? A: I hope not sir. I didn’t say I didn’t expect to be. I hope not. To Be Continued…. In his closing argument, which will be discussed in the next issue, Mundy read the list of cooperating witnesses. It included former Essence magazine model Rasheeda Moore. The FBI picked up Moore in a Los Angeles homeless shelter, and fed, bathed, and dressed her for that almost-certainly fatal videotaped two-hour tryst with the mayor at the Vista Hotel in January 1990. Mundy accused the government of making “deals with the devil.” He told the jury, “If they weren’t full-grown devils they were at least little Lucifers or small Satans, because these were people that had their own problems and at any expense, any cost, they were trying to help themselves.” In the Barry trial, Judge Thomas Penfield Jackson gave jury instructions after closing arguments. The government requested the pattern instruction and Mundy submitted his own instruction on “interested and immunized witnesses.” The instruction Jackson ultimately gave to the jury closely tracked Mundy’s homemade instruction and his closing argument. The second and final part of this Practice Point will examine how Mundy wove his cross into his closing, and his closing into his jury instructions. There is more cross-examination of these witnesses who had the government’s gun to their heads on the NACDL Web site and in the Brief and Motions Bank. For those who want to jump ahead, there are also excerpts from closing arguments and jury instructions. Notes 1. A version of this article appeared previously in 4 BNA Criminal Practice Manual Current Reports 441 (1990). 2. Documents from United States v. Marion S. Barry, including excerpts from transcripts of cross-examinations, closing arguments, and proposed jury instructions on immunized and interested witnesses can be downloaded from NACDL’s Briefs and Motions Bank at (members only). BriefBank No. 2005001. 3. Regina v. Buric, 106 C.C.C.(3d) 97 (Ont. C.A. 1996); instruction reprinted in The Champion, August 1998 at 12. 4. More excerpts of Mundy’s devastating cross-examination of Charles Lewis are in the NACDL Brief and Motions Bank (members only). BriefBank No. 2005001. 5. Tr. at 5728-29. To view more Practice Points columns from **The Champion, please >>click here and enter the search term "Practice Points."**
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