The Baltimore man accused of killing 16-year-old Phylicia Barnes in 2010 is appealing to the U.S. Supreme Court to block a third trial after Maryland's highest court reinstated murder charges against him.
Michael Maurice Johnson, 33, remained free Friday after appearing in court for the first time since the Maryland Court of Appeals determined a judge overstepped his authority in January 2015 when he dismissed second-degree murder charges.
Attorney Katy O'Donnell said in court that the state appeals court's decision was "greatly in error" and violated Johnson's constitutional rights.
"The government, with its vast resources, ought not be permitted to try him yet again after the trial judge explicitly found that the evidence was legally insufficient to establish that he was the criminal agent," Assistant Public Defender Michael R. Braudes wrote in a petition for certiorari filed with the Supreme Court this month.
David Jaros, a law professor at the University of Baltimore, said Johnson's petition could face steep odds. While he had not read the specific arguments being made, Jaros said the Supreme Court takes few cases, and Johnson's claims appear to be procedural and not likely to be taken up by a federal court.
"I can understand why we should feel uncomfortable with a future fact-finder finding him guilty beyond a reasonable doubt after the [last] trial judge had that much doubt, but as a legal claim, I don't see how that treads into federal waters," Jaros said.
Baltimore Circuit Judge Charles Peters set a trial date for March 2018 and ordered that Johnson be placed on pre-trial supervision pending a new trial.
O'Donnell said Johnson has been working as a truck driver and has stayed out of trouble, after prosecutors mentioned that Johnson had been picked up on a wiretap in 2011 discussing the potential of fleeing to a country that would not extradite him.
Barnes, an honors student from North Carolina, was visiting her half-sister in Northwest Baltimore in 2010 when she vanished. An intensive search ensued, and her body was found months later floating in the Susquehanna River, an hour northeast of Baltimore.
Prosecutors say Johnson's involvement in the killing was the only "logical conclusion."
Johnson was charged in 2012, and the legal process has featured many twists and turns. He went to trial in 2013 and was convicted by a jury of second-degree murder. At his sentencing, Judge Alfred Nance overturned the conviction because he found prosecutors had withheld evidence.
At his second trial, Judge John Addison Howard declared a mistrial after prosecutors played a recording jurors were not supposed to hear. Howard reversed his mistrial ruling at a subsequent hearing and dismissed the charges, saying prosecutors had insufficient evidence.
Prosecutors, believing Howard had made an error, promptly reindicted Johnson. Circuit Judge Timony Doory denied an arrest warrant sought by prosecutors, and Johnson was instead served with a summons and not detained. The case was referred back to Howard, who dismissed the new indictment.
The Court of Appeals reinstated the charges in April, and Johnson has remained free.
Johnson was the last person known to see Barnes alive. He had dated her half-sister for years, but they were in the process of breaking up when the teenager went missing.
Prosecutors say Johnson had developed an inappropriate relationship with the teen, and called in sick from work the day she went missing. Witnesses said they saw Johnson struggling to move a plastic container out of his ex-girlfriend's apartment that day. Authorities believe Barnes' 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 prove that a crime had been committed or, if one had been, in which state it occurred.
Johnson's attorneys, in his petition to the Supreme Court, say his case presents an "important question in constitutional line-drawing."
"At what point is an acquittal on the merits so delayed vis-a-vis the trial that it no longer counts as an acquittal," they wrote. "In the present case, the acquittal was entered by a conscientious trial judge, who had given the matter a great deal of thought and striven hard to do the right thing, prior to verdict and any possible sentencing."
Johnson appeared in court wearing a suit, sitting with a small group of supporters on the opposite side of the courtroom from Barnes' father, Russell.