Katy O'Donnell, an attorney for Michael Johnson, makes a statement after a judge dropped charges against Johnson in the Phylicia Barnes murder case. (Justin Fenton/Baltimore Sun)
Defense attorneys for the man charged with killing 16-year-old Phylicia Barnes accused prosecutors of intentionally tanking the second trial in the case last month, and a judge is considering whether to throw out the charges altogether.
Kay Beehler, one of the attorneys for Michael Maurice Johnson, said prosecutors had to have known that they were playing inappropriate material for jurors — a move that caused the judge overseeing the case to declare a mistrial.
It was the second trial for Johnson, who was convicted of second-degree murder at his first trial in 2013. That conviction was overturned after the judge in the case determined prosecutors had wrongly withheld information about an alleged eyewitness.
Now Johnson's attorneys say the charges should be thrown out on the grounds of double jeopardy.
Assistant State's Attorney Lisa Goldberg called the defense assertions "ludicrous."
Circuit Court Judge John Addison Howard is expected to rule on the motion on Tuesday afternoon.
Johnson is accused of killing Barnes, a teenager from North Carolina, in December 2010. She vanished while visiting her sisters in Northwest Baltimore, and her body was found floating in the Susquehanna River four months later. Johnson had dated Barnes' older sister for a decade, and they were in the process of ending the relationship when the teen disappeared.
The previous judge in the case, Alfred Nance, said that prosecutors had presented a circumstantial case that was substantially aided by a supposed eyewitness who testified that Johnson called him the day of Barnes' disappearance and showed him her body.
But prosecutors withheld information about the witness that might have cast doubt on his credibility. Nance threw out Johnson's conviction on second-degree murder and ordered a new trial.
The witness was not called to testify at Johnson's second trial, which began in November. As the state's presentation was winding down, they played for jurors a tape of a wiretapped call between Johnson and his older brother. Beehler said Howard had ruled that certain portions of the tape be removed, but they remained when the tape was played for jurors.
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Howard ordered prosecutors to remove the material. They later asserted that they had screened the tape and it was ready to be played, Beehler said. But the material remained when the tape was played a second time.
At the time, Howard said that he did not believe the mistake was intentional, but nevertheless said he had to grant a mistrial.
Now Beehler charges that prosecutors sensed the case was "going down the tubes," and the mistake was intentional so that a new trial would be ordered. She said there's no other explanation for how prosecutors could assert they had listened to the tapes and the material in question had been redacted, when it was not.
Goldberg said she couldn't explain how the mistake occurred, but said the state had invested substantial time and would not have intentionally defied the court.
Beehler also said that prosecutors failed to connect Johnson to the crime or even establish that Barnes was killed in the state of Maryland. There are no witnesses to the crime, and the Susquehanna River, where her body was found, flows through New York and Pennsylvania, she noted.