Magazine article The Nation

Rough Justice

Magazine article The Nation

Rough Justice

Article excerpt

Sometimes juries are supposed to be scofflaws. Law and justice diverge too often for decent citizens to allow punishment just because the law demands it.

The Marion Barry verdict - guilty on one misdemeanor count of cocaine possession, acquittal on another possession charge and a hung jury on twelve other charges, including perjury - is a perfect example. No one hearing the government's evidence could doubt that Washington's Mayor was guilty of frequent drug use and of lying to the grand jury. As an alternate juror wrote in her diary, "The facts are there.... on a videotape deemed fair and accurate, Marion Barry smoked crack cocaine.... He smoked it of his own free will.... plain and simple." Rasheeda Moore also testified substantially without contradiction that during their four-year relationship she and Barry had used drugs more than 100 times.

But the jury refused to convict on the basis of that videotape or all the other voluminous testimony of "plain and simple" facts. Although most jurors declined to discuss their decision, those who did made it clear that the government's tactics had so enraged them that the testimony lacked "credibility." Despite clear instructions from the judge, they considered that Barry had been entrapped.

Legally, of course, there was no entrapment. In federal court (although not in some states), no matter what the prosecution does, if the defendant is "predisposed" to commit the crime there is no entrapment. …

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