For This Con, Numbers Don't Add Up

Bearing in mind that prolific killers like James Cardinali, Vito Arena, Mickey Featherstone and Jimmy (The Weasel) Fratianno are all free men for telling tales about old friends, consider the following scenario:

A prisoner has served more than 11 years for narcotics violations. While in prison, he works undercover for 15 months, and then spends the next seven years testifying, helping to convict 44 murderers and drug dealers.

He gives information both about a terrorist involved in robberies and prison escapes, and about a former inmate arrested with documents describing the planned murder of public officials, including President Ronald Reagan.

He also testifies before congressional and presidential commissions on the narcotics industry, gives life-saving tips to undercover narcs and alerts officials to how prisoners deal drugs through jailhouse phones.

And to make the situation really improbable, assume our man is a former junkie who turned his life around, graduated from college cum laude and won first prize in a national poetry-writing contest for federal prisoners.

If such a prisoner did exist, by now he'd be released into the federal witness program.

Not if his name is Leroy (Nicky) Barnes.

Barnes, now 56, achieved national infamy when, on June 5, 1977, he appeared on the cover of The New York Times magazine under the. headline,"Mr. Untouchable."

"This is Nicky Barnes," said the text on the cover. "The police say he may be Harlem's biggest drug dealer. But can they prove it?"

According to courthouse legend, President Jimmy Carter saw Barnes' picture and ordered an all-out effort to convict him. Then-U.S. Attorney Robert Fiske tried the case, Barnes was convicted and, in January, 1978, he began his sentence - life without parole.

In July, 1981, Barnes, upset that a major drug dealer was sleeping with his woman, began cooperating, although he knew that only a presidential pardon or commutation could get him out of jail.

"His cooperation was extraordinary," recalled U.S. Attorney Benito Romano.

Now, there is no question Barnes did terrible damage as a heroin dealer. And he has admitted ordering the executions of four people while a member of "The Council," a group of Harlem heroin merchants who formed a Maria-type commission to regulate drug dealing.

Still, Romano and his predecessor as U.S. attorney, Rudolph Giuliani, have urged the Justice Department to recommend a pardon or sentence commutation for Barnes.

To this date, the department has not acted. If it doesn't, Barnes will remain in jail. And there lies an interesting question of justice.

Cardinali, Arena and Fratianno have admitted murdering at least four men as contract killers for the mob. Featherstone did the same for the Westies. All four have testified, but together their record on convictions comes nowhere near Barnes'. All have gotten out in less than half the time Barnes has spent in prison.

"For reasons of equity, and fairness, when you put (Barnes') case alongside all the others, he deserves his freedom," said Edward McDonald, former head of the Brooklyn Organized Crime Strike Force.

Why, then, is Barnes still behind bars?

"It's still too hot a political potato for people to digest," said McDonald. "He was the biggest drug dealer in America. And he flaunted it. He pranced around in fancy clothes and fancy cars, a woman on each arm, giving out turkeys at Thanksgiving. He was the John Gotti of the mid-1970s."

In the end, though, McDonald believes Barnes' release "would be good for law enforcement. It would encourage more people (in jail) to cooperate. His case discourages people from cooperating now. 'Look at him. He's still in. Why should I cooperate?' is what they say now."

Romano feels the same, but with the pardon request pending, he won't discuss the overall merits of freeing Barnes.

Barnes, who has ignored requests for comment, has maintained in testimony that he has turned himself around.

"I embrace traditional values now, education ... maybe starting a family somewhere along the line," he has testified. "I mean positive, good, constructive values, the values that should be held in all communities.

"I am not trying to say that I am a No. 1 American. I am just a guy that came from the street and made a sharp turn, that's all."