A decision on whether Michael Maurice Johnson will be tried a third time for the 2010 killing of Phylicia Barnes rests with the same judge who dismissed the case in January, court records show.
Circuit Judge John Addison Howard has been assigned to hear a motion Thursday by Johnson's attorneys to dismiss the latest indictment. Howard presided over Johnson's second trial in the killing of the North Carolina teenager, declaring a mistrial after a prosecutorial error and then granting a motion to acquit Johnson in January, citing insufficient evidence.
The Baltimore state's attorney's office said at the time that it would appeal the judge's ruling but instead re-indicted Johnson on the same charge. State's Attorney Marilyn Mosby said Howard had no authority to acquit Johnson, and said the new indictment was a matter of "upholding the law and rectifying procedural missteps."
Johnson's attorneys had called the latest indictment a clear example of double jeopardy and said it should be dismissed.
A spokeswoman for the state's attorney's office declined to comment on next week's hearing. Johnson's defense attorneys could not be reached for comment.
Johnson has been free pending the outcome of the hearing. Circuit Judge Timothy J. Doory refused to sign an arrest warrant after Johnson's re-indictment, and Judge Michael DiPietro declined last week to hear prosecutors' request to set bail for him.
Johnson was initially charged in April 2012 with first-degree murder in the death of Barnes, who was visiting her sisters in Northwest Baltimore in 2010 when she vanished. Her body was later found in the Susquehanna River.
Prosecutors believe Johnson, who had a long-term relationship with Barnes' older sister and was friendly with the teen; they said he strangled her and moved her body out of the apartment in a storage container.
At Johnson's first trial in 2013, a jury acquitted him of first-degree murder but convicted him of second-degree murder. But at his sentencing, Circuit Judge Alfred Nance ruled that prosecutors had failed to turn over evidence about an alleged eyewitness, and he ordered a new trial.
Johnson's second trial began in December. In that trial, prosecutors twice played a tape for jurors that the judge had asked to be redacted, but was not. Because of that, Howard declared a mistrial.
At a subsequent hearing to determine the next steps in the case, the defense argued that the case should be dismissed. Howard reversed his ruling of mistrial, saying he should have first considered the motion to acquit and then granted that request.
Prosecutors argue that once the mistrial was declared, Howard did not have the authority to revisit prior motions and the case should have been set for a third trial.
Johnson's defense attorneys have clashed with Howard as well. Before the second trial began, they filed a request asking Howard to recuse himself, saying he had ruled against their motions and was biased against them.