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Prosecutors refile charges in Barnes case

Baltimore prosecutors re-filed charges against Michael Maurice Johnson in the killing of North Carolina teenager Phylicia Barnes, according to a law enforcement source briefed on the decision.

Baltimore prosecutors have refiled second-degree murder charges against Michael Maurice Johnson in the killing of North Carolina teen Phylicia Barnes in 2010, a move that comes less than two weeks after Johnson was acquitted by a judge following a mistrial.

State's Attorney Marilyn Mosby announced Tuesday her intention to try Johnson again, contending that the new charges do not violate constitutional provisions against double jeopardy because the judge's decision to acquit was invalid.

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"Putting it simply, we are now putting this case back in the same posture that we were in after the mistrial was granted," Mosby said at a news conference.

After Johnson's acquittal by Judge John Addison Howard, prosecutors took the case before a grand jury again and obtained an indictment. But a judge declined to sign an arrest warrant, and Johnson, who turns 31 on Thursday, was instead served a summons — a rare situation for someone charged with murder.

Maryland's top public defender, Paul DeWolfe, said the judge's refusal to sign the warrant was telling, and criticized Mosby's move to reindict Johnson as "vindictive and abusive of the process."

"This is absolutely a case of double jeopardy," DeWolfe said. "We're confident this indictment will be dismissed."

Two veteran attorneys said there is likely to be significant legal maneuvering before the case goes to trial, if it gets that far.

"This is extremely rare — I don't recall this situation ever happening," said Warren S. Alperstein, a defense attorney and former city prosecutor who represents the bar association on the city's Criminal Justice Coordinating Council. "There will certainly be a lot of eyes watching to see how the new trial judge rules on what will certainly be a motion to dismiss the new indictment."

Appellate attorney Thomas M. Donnelly said that "there are substantial issues raised here that both parties are going to have to deal with," and he predicted that the case would end up in the appeals courts in Annapolis.

Barnes' father said Mosby met with him last week to discuss her intentions and called him Monday after the new charges were filed.

"I believe she will do everything she can to make sure Phylicia gets justice," Russell Barnes said. "We know it's going to be a grueling fight."

Phylicia Barnes, a 16-year-old honor student and athlete from North Carolina, vanished from her sister's Northwest Baltimore apartment on Dec. 28, 2010. Her body was found four months later in the Susquehanna River, and 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 is the only "logical conclusion."

During Johnson's two trials, prosecutors told jurors they believed that Johnson had developed an inappropriate relationship with Phylicia Barnes. They noted that he called out of work the day she went missing. A neighbor said he saw Johnson struggling to move a plastic storage container out of the apartment, and prosecutors allege that 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 even prove that a crime had been committed or, if one had been, in which state it occurred.

"There was insufficient evidence of where she died, how she died, and what manner she died," Kay Beehler, one of Johnson's attorneys, said in court.

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At Johnson's first trial in 2013, a jury acquitted him of first-degree murder but convicted him of second-degree murder. The verdict was overturned by Judge Alfred J. Nance because prosecutors withheld information about an alleged eyewitness who linked Johnson directly to the killing.

The witness, James McCray, contacted police from a jail in Charles County after Johnson's arrest and told them Johnson had called him for help the day of Barnes' disappearance, saying that he had raped and strangled her. McCray said Johnson summoned him to the apartment, where he saw her body.

But Nance, who earlier had expressed "great concern" about the state's evidence, ordered a new trial because prosecutors had failed to tell defense attorneys about information that raised doubts about McCray's credibility.

Prosecutors opted not to present McCray as a witness in Johnson's second trial, which began in December. As the state's case neared conclusion, prosecutors played a wiretapped phone call between Johnson and one of his brothers. The judge ordered part of the tape redacted, and, after a recess, prosecutors said they had properly edited it. But when it was played, jurors again heard the portion Howard had ordered removed.

Howard declared a mistrial Dec. 22.

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.

At a subsequent motions hearing, Howard acquitted Johnson, ruling that prosecutors had "insufficient evidence" to try him again.

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

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

Johnson, who had been jailed since 2012, was released that day.

Mosby, who took office in early January, vowed to appeal Howard's ruling. In a statement, she said defense attorneys had "waived their right to a ruling on a motion for judgment of acquittal" when the mistrial was granted. That gave Howard "no jurisdiction to grant the acquittal," shesaid, because the trial was effectively over and would need to begin anew.

Mosby said the Maryland attorney general's office told her that such an appeal was not possible.

In filing the charges again, Mosby said Tuesday that her job "is to uphold the law and rectify procedural missteps."

DeWolfe countered that the transcript and Howard's written opinion show that Howard reversed his decision on the mistrial before the decision to grant an acquittal.

"Prior to ruling on the motion for judgment of acquittal, he withdrew the mistrial and ruled directly on the sufficiency of the evidence," DeWolfe said. Johnson "was tried by a jury, and a judge found the evidence on the record was insufficient."

Donnelly, an appellate attorney, said a reindictment is "clearly unusual," but he had questions about the judge's decision.

"What power does the judge have to acquit after a case is ended?" he said. "That's the real question."

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