It’s more probation, not prison, for D.C. Councilman Marion Barry.
The former mayor has again dodged time behind bars for failing to file his federal and local tax returns. A federal judge Friday ordered that his probation be extended for two years.
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U.S. Magistrate Judge Deborah Robinson struck down the U.S. Attorney’s motion to confine Barry in his home for 30 days and put a temporary curfew on his night and weekend activities. She instead rebuked prosecutors for sloppy trial work.
Prosecutors accused Barry, D-Ward 8, of willfully failing to file his 2007 tax returns. The 72-year-old, a recent recipient of a new kidney, already was on probation for failing to file his 1999-2004 returns. That probation will be extended to March 8, 2011.
“While we strongly disagree with some of the court’s characterizations and findings of fact, we’ll decline further comment at this time as we continue to analyze the court’s opinion,” said Channing Phillips, spokesman for the U.S. Attorney’s Office for D.C.
Robinson took assistant U.S. Attorney Tom Zeno to task for failing to call a single witness “in an effort to prove the new criminal conduct which he alleged.”
“No authority supports the proposition that the United States Attorney may allege that a probationer violated his conditions of probation by new criminal conduct and request a hearing on that ground, and, at the hearing, call no witnesses and maintain that he need not offer any evidence at all with respect to an element of the offenses,” Robinson wrote.
Prosecutors, Robinson wrote, “failed even to attempt to demonstrate … that Defendant’s failure to timely file his 2007 tax returns was willful.”
Frederick Cooke, Barry’s attorney, told Robinson during the hearing that the councilman was distracted by his severe renal failure and did not “willfully” fail to file. Barry has submitted his 2007 and 2008 returns and is repaying his six-figure debt to both the District and the Internal Revenue Service through regular paycheck garnishments.
Zeno retracted an earlier motion for jail time after Kurt Panzer, Barry’s probation officer, told the court that neither a halfway house nor a federal prison on Maryland’s Eastern Shore were equipped to handle his health problems. Panzer suggested that Robinson extend Barry’s probation for two years.
Barry could not be reached for comment.
