Prosecutors are facing a series of hurdles in their second try at convicting two brothers accused of setting a pit bull on fire in 2009, day after day losing key witnesses and testimony that nearly won them their case in the first trial a year ago.
Since Tuesday, blows to the prosecutors' case have included one witness refusing to testify, another giving contradictory statements and, most recently, an officer being barred by Judge Emanuel Brown from identifying one of the suspects in a police surveillance video.
Lawyers say that while prosecutors are used to witnesses who are hard to deal with, perceptions by jurors that a case may be developing cracks can make it more difficult to secure a conviction.
Brothers Travers and Tremayne Johnson are accused of dousing a female pit bull in an unknown accelerant and setting her on fire May 27, 2009, in the Sandtown-Winchester neighborhood of West Baltimore. Their first trial ended in a hung jury in February 2011 because one juror wouldn't agree to convict on circumstantial evidence.
There is no forensic evidence in the case, and the surveillance video doesn't show the crime itself.
Prosecutors are using the 35-minute surveillance video to corroborate the testimony of witnesses, but that tactic was dealt a blow Thursday when Brown barred Baltimore Police Sgt. Jarron Jackson from identifying Travers Johnson in the tape.
On Wednesday, Jackson had pointed out the Johnsons in the video running from the direction of the burning dog, identifying them by pointing to what he called Tremayne Johnson's signature "wrist flick" and Travers Johnson's build.
But Sharon May, a lawyer for Travers Johnson, took issue when Jackson described how he could also identify Travers Johnson based on a "bop" in his walk, something Jackson hadn't said in previous testimony.
"It just seems to me maybe Sergeant Jackson was finally catching on to where the state was trying to lead him," May said Thursday. Brown struck from the record Jackson's identification of Travers Johnson in the video.
The ruling was likely intended to ensure that the Johnsons get a fair trial, said Douglas Colbert, a professor at the University of Maryland School of Law. Because Jackson is a police officer, that could give his identification of the Johnsons in the video undue weight in the eyes of the jurors, Colbert said.
Trouble in the case began to build Tuesday, when prosecutors called Tiera Goodman to the stand. She came forward to testify in the 2011 trial in response to a reward offer and said she had seen the Johnsons running from the direction of the burning dog, which rescue workers named Phoenix. She turned belligerent Tuesday and refused to testify.
On Wednesday, Michael Taylor, a friend of the Johnsons, gave contradictory testimony about statements he made to police a week and a half after the burning. He said at that time that the Johnsons kept the dog in a nearby vacant house and were with her an hour or two before she was burned. But on Wednesday, he called that "a story" he made up. When prosecutors pressed him later, though, he said police didn't coerce him to talk and that he wasn't providing false information to protect himself or his girlfriend from unrelated drug and gun charges.
Criminal prosecutors are accustomed to difficult witnesses, said Andrew Levy, an attorney with the Baltimore firm of Brown Goldstein and Levy, who is not involved in the trial.
"They cut their chops learning to deal with less-than-perfect witnesses," Levy said. "People are found guilty every day of the week all over the country based on the testimony of witnesses whose credibility is questionable."
But delays that have marked much of the trial could add another wrinkle, he said. Brown has repeatedly called lawyers to his bench or allowed them to come forward when they have objections, hushing the court with white noise while they talk in whispers. The frequency of the interruptions visibly frustrated jurors Thursday afternoon, who were fidgeting, sighing and resting their chins in their hands.
"If jurors perceive it as prosecutors not having their ducks in a line, the jury can conclude at the end of the day the prosecutor just doesn't have the ammunition and acquit," Levy said.
The trial is scheduled to resume Monday. Brown had initially told jurors they would be given a break Friday and Monday for Good Friday and Easter, but he asked them to come back Monday because of the delays.
Prosecutors dealing with unreliable witnesses, stricken testimony in Phoenix trial
Judge bars police officer from identifying suspect in key video evidence
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