Appeals court orders new trial for man acquitted of killing Phylicia Barnes

Maryland's second highest court orders new trial for man acquitted of killing Phylicia Barnes.

Maryland's second-highest court on Wednesday ordered a third trial and reinstated charges against a Northwest Baltimore man who had been acquitted by a judge in the killing of North Carolina teenager Phylicia Barnes.

A three-judge panel on the Court of Special Appeals said that Circuit Judge John Addison Howard made a procedural mistake in January 2015 when he granted a motion to acquit Michael Johnson of second-degree murder. He had originally granted a mistrial.

Prosecutors hailed Wednesday's decision and said they intended to try the case again.

"This case has and always will be about securing justice for this 16-year-old girl, and we are elated that the Court of Special Appeals decision will allow us to do so," Baltimore State's Attorney Marilyn J. Mosby said in a statement.

Johnson has been free since last year. Officials with the public defender's office, which represented Johnson, said they were reviewing the decision and would decide within the next two weeks whether to ask the state's highest court to reconsider it.

In a dissenting opinion, one of the three appellate judges said that while Howard had erred, his determination that the state lacked evidence to convict Johnson should spare him from another trial, on the grounds of double jeopardy.

Reached by phone, Barnes' father, Russell, was ecstatic about the appeals court's decision to reinstate the charges. "I got a new trial! Thank you Jesus," he yelled after being informed of the court decision.

"This guy was not supposed to get out," Russell Barnes said. "We have to fight for justice for our vulnerable children."

Steve Klepper, an appellate attorney who is not involved in the case, said he thought there was a "50-50 chance" that the Court of Appeals could take up the case. Dissenting opinions in the Court of Special Appeals are rare, he said, and the high court may want to review the case.

Barnes, a high school honors student from Monroe, N.C., disappeared from her sister's Baltimore apartment in December 2010, and the search attracted national attention. Her body was found four months later in the Susquehanna River.

Johnson, who had dated Phylicia's half-sister for 10 years, was charged a year later.

Assistant State's Attorney Lisa Goldberg has acknowledged that the evidence against Johnson is circumstantial but said his involvement in the killing was the only "logical conclusion."

Prosecutors say Johnson, the last known person to see Barnes alive, had developed an inappropriate relationship with the teen, and called off work the day she went missing.

Witnesses saw Johnson struggling to move a plastic container out of his ex-girlfriend's apartment that day. Authorities believe the girl's body was inside.

But defense attorneys have said Johnson cooperated with police, and cellphone records that trace his movements did not show him anywhere near the Susquehanna River. They said prosecutors could not even prove that a crime had been committed or, if one had been, in which state it occurred.

A jury convicted Johnson of second-degree murder in February 2013 and he faced up to 30 years in prison, but at his sentencing hearing Judge Alfred Nance ordered a mistrial after finding prosecutors had failed to turn over information.

During the trial, Nance had expressed "great concern" about the state's evidence.

At the second trial in late 2014, Howard ordered a mistrial after prosecutors played a recording jurors were not supposed to hear. Though jurors had heard only the state's side of the case, five interviewed by The Baltimore Sun said they would have voted to acquit Johnson.

As the case headed to re-trial, Howard reversed course at a motions hearing in January 2015, ruling that prosecutors had "insufficient evidence" to try Johnson again.

He called the prosecution's case against Johnson "unarguably circumstantial." He said that while their case was intriguing, it contained "no direct evidence" linking him to Barnes' death.

"There was 'no smoking gun' in this case," Howard wrote.

Mosby, in her first month on the job, vowed to keep pursuing the case and refiled charges against Johnson. She said it was her job to "rectify procedural missteps."

The public defender's office described Mosby's move to re-indict Johnson as "vindictive and abusive of the process."

Johnson's new case was again assigned to Howard, who dismissed the charges. Mosby's office then appealed.

Court of Special Appeals Judges Patrick L. Woodward and Alexander Wright Jr. ruled that once Howard granted a mistrial, the case "became in the eyes of the law 'no trial at all,' and the trial court thereafter had no revisory power to revive the second prosecution and no fundamental jurisdiction to grant a judgment of acquittal."

"In other words, a trial court cannot exercise fundamental jurisdiction over subject matter that no longer exists," they wrote in the majority opinion.

Judge Dan Friedman dissented. He agreed that Howard's move to reverse his mistrial ruling a month after ordering it was "not just unusual, it was procedurally defective."

But, he said, "The trial court heard all of the State's evidence against Michael Johnson and found it insufficient as a matter of law. Its decision to grant the motion for judgment of acquittal is, in my mind, final and conclusive, and, under Maryland's common law of double jeopardy, it precludes the State from retrying him for this crime."

Jurors acquitted Johnson of first-degree murder at his first trial, and those charges cannot be reinstated.

jfenton@baltsun.com

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