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Michael Johnson indictment dismissed, Mosby plans appeal

Michael Johnson was in court again Thursday in Phylicia Barnes' murder case.

A Baltimore judge decided Thursday that Michael Maurice Johnson will not be tried for a third time in the murder of a teenager visiting Baltimore in 2010, prompting an immediate vow from the city's top prosecutor to continue to pursue the case.

Circuit Judge John Addison Howard, who previously declared a mistrial after a prosecutorial error during Johnson's second trial, and then granted a motion to acquit Johnson, dismissed the latest indictment Thursday.

The ruling is yet another setback for members of Phylicia Barnes' family, who agonized over the missing teen during what was one of the city Police Department's most expansive search efforts, and then sat through two trials.

The case has also sparked a debate in Baltimore's legal community about whether it constitutes double jeopardy, the constitutional protection against being tried multiple times for the same crime. That issue could be decided by the state's top appellate court.

"We have tremendous sympathy for the Barnes family; however, Michael Johnson is innocent," said Kaye Beehler, one of Johnson's defense attorneys. "The law is absolutely clear that this nightmare should be over for him and his family."

After the hearing, Baltimore State's Attorney Marilyn Mosby said she plans to pursue an appeal in the case.

Mosby has argued that once Howard declared a mistrial, he no longer had jurisdiction and didn't have the legal authority to acquit Johnson. That acquittal led Mosby to indict Johnson again.

"We knew what we were up against when the judge did what he did. He has admitted that it was a procedural misstep," Mosby said. "We knew what we were up against. We are going to continue to pursue justice."

Howard, who reversed the mistrial ruling in order to grant the acquittal, said in court on Thursday that he believed he had that authority. In granting the motion for acquittal, he said prosecutors had "insufficient evidence."

"I did believe I had the authority," he said.

Howard also expressed sympathy to the Barnes family, calling the teen's death a "tragic loss."

After the hearing, Phylicia's father, Russell Barnes, said Howard made a mistake.

"He let a child killer walk on the street here," Barnes said.

Russell Barnes also expressed frustration that no one in Johnson's family has approached him in four years of court appearances to say Johnson wasn't responsible for his daughter's death. He also said that during the search for Phylicia, neither Johnson nor his family provided support to his family.

"It's not about me; it's about Phylicia and her life being taken," he said.

He said Mosby had assured him "from day one" that her office would fight an acquittal. "We will take it to the appeals court," he said.

Barnes was an honor student and athlete in North Carolina, where she lived with her mother. She had come to Baltimore to visit family after reconnecting with her half-sisters over Facebook and went missing Dec. 28, 2010. She wanted to attend Towson University.

Johnson was in a relationship with Barnes' older sister, and she had been visiting her sister when she went missing. Barnes' body was found four months later in the Susquehanna River.

Johnson was not charged until April 2012.

During his first trial in 2013, a jury acquitted Johnson of first-degree murder but convicted him of second-degree murder. A city circuit judge later ordered a new trial because the state did not turn over evidence about an alleged eyewitness to the defense.

At his second trial, which began in December, prosecutors twice played a tape for jurors that the judge had asked to be redacted, but was not, prompting Howard to declare a mistrial.

Johnson, now 31, was released from jail after the subsequent acquittal.

Prosecutors refiled second-degree murder charges against Johnson in February. At the time, a judge refused to sign an arrest warrant for him, so he couldn't be jailed while awaiting another trial.

Johnson, who appeared in court Thursday in a double-breasted gray suit, declined to comment after the hearing as he walked from the courthouse with family members.

They could not be reached by phone Thursday.

The tactics used by the state's attorney's office have been unusual, said Steven D. Silverman, a Baltimore-based defense attorney not affiliated with the case.

"It's unprecedented that you would have a judge throw out a murder conviction, a second judge throw it out on insufficient evidence and have the prosecutor indict on the same facts," he said.

"It makes you wonder whether the decision to re-indict was for political motives or an attempt to seek justice," he said.

Silverman said the judges had concerns about the evidence and noted they typically have access to much more information than is publicly available. "You have to trust the referees that are actually officiating this trial have likely got it right, regardless of what facts are disseminated," he said.

Late Thursday, Mosby said in an email that re-indictment was the only means they had to appeal.

"At the end of the day this is and has always been about justice for Phylicia Barnes and her family," Mosby said.

Byron L. Warnken, a law professor at the University of Baltimore School of Law who is not involved with the case, said he initially believed that the state had no case because Maryland law makes it clear that when a judge grants an acquittal, "there is nowhere to go."

But he said after hearing the state's argument that the judge had no jurisdiction to acquit, he felt prosecutors do have grounds for appeal.

"I think the state might actually be right," he said.

Warnken said an appeal of Howard's decision would be heard by the Court of Special Appeals, the state's second-highest court, but that the top Court of Appeals may immediately pick up the case because of its far-reaching legal implications.

jkanderson@baltsun.com

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