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Johnson defense cites double jeopardy, seeks dismissal of charges in Phylicia Barnes case

Michael Johnson's attorneys cite double jeopardy in seeking dismissal of charges in death of Phylicia Barnes

Defense attorneys for Michael Maurice Johnson, who was acquitted last month of second-degree murder in the 2010 death of North Carolina teenager Phylicia Barnes, have filed a motion to dismiss a new indictment against him.

Attorneys Katy O'Donnell and Kay Beehler cite double jeopardy, which forbids a defendant from being tried twice on the same charge after an acquittal. In a motion filed Thursday, they said Johnson "stands acquitted of the charges contained in this indictment."

In a letter, they asked Circuit Judge Charles Peters to allow them to argue for a dismissal of the new charges at Johnson's scheduled arraignment on Feb. 26.

Baltimore State's Attorney Marilyn Mosby obtained the charges against Johnson this month after taking the case to a grand jury — a move that came two weeks after Judge John Addison Howard acquitted him of the previous charges, citing insufficient evidence.

Johnson, 31, was charged in April 2012 in the death of Barnes, who disappeared from her sister's Northwest Baltimore apartment in December 2010 while visiting for the holidays. Her body was found four months later floating in the Susquehanna River.

Prosecutors' theory is that Johnson — the longtime boyfriend of Barnes' older sister — developed a relationship with the teenager and strangled her, then removed her body from the apartment using a plastic storage container. A neighbor saw Johnson struggling to move a container the day Barnes went missing.

At his first trial, in 2013, Johnson was acquitted of first-degree murder and convicted of second-degree murder. But just before his sentencing, prosecutors revealed that they had withheld damaging information about an alleged witness they used to tie Johnson to the killing, and Judge Alfred Nance ordered a new trial.

The second trial began in late 2014, with prosecutors choosing not to call the controversial witness. At the end of the prosecution's presentation, they twice played a tape for jurors that was supposed to have been edited.

After a hearing, Howard declared a mistrial. Then he reversed the mistrial, and acquitted Johnson.

Mosby said the mistrial finding meant Howard no longer had jurisdiction over the case. In re-filing charges against Johnson, Mosby said she was "rectifying procedural missteps" and "putting this case back in the same posture that we were in after the mistrial was granted."

Johnson's attorneys argue that Howard did not make a procedural error, and even if he did, the acquittal "has binding effect for double jeopardy purposes."

"Form and timing of the ruling do not matter," their motion reads. "Substance does."

Johnson, who was held without bail for 21/2 years, remains free as the new wave of proceedings play out. After the grand jury indictment, a judge declined to sign an arrest warrant. Johnson has been served with a summons to appear at his arraignment.

jfenton@baltsun.com

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