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Defense says state withheld evidence in Barnes murder trial

Defense attorneys say prosecutors’ failure to provide material about a crucial witness in a timely fashion could result in a new trial for Michael Maurice Johnson, the man convicted last month of killing North Carolina teenager Phylicia Barnes.

Johnson’s attorneys alleged that prosecutors waited two weeks to pass along information that the witness, James McCray, lied about testifying in a Montgomery County case.

“As has now been admitted by the state, McCray perjured himself when he testified that he provided testimony in Montgomery County regarding a previous rape case,” defense attorneys Ivan J. Bates and Russell A. Neverdon said in a supplemental memorandum in support of their motion for a new trial. “In fact Mr. John M. Maloney, Montgomery County Deputy State’s Attorney, has indicated that he never testified in that county in such a case. Also, Mr. Maloney has informed Baltimore City State’s Attorney that they did not use McCray as a witness.”

Prosecutors said they did not receive the information about McCray being a potential witness in the Montgomery County case until after the jury convicted Johnson in Baltimore City Circuit Court.

The jury reached its verdict on Feb. 6 and prosecutors said they received Maloney’s letter one day later. But defense attorneys said the fact that prosecutors waited until Feb. 22 to provide them with this information was problematic.

“The state decided they would conduct their own investigation of the information prior to sending it to defense counsel but by doing so prevented [Johnson] from conducting his own investigation,” Bates and Neverdon said. “The state did not immediately send the information to the defendant and thus suppressed it.”

Bates, of Bates & Garcia LLC in Baltimore, and Neverdon, of the Law Office of Russell A. Neverdon Sr. LLC in Baltimore, say the prosecution’s failure to provide this information violates the rule of Brady v. Maryland. In that 1963 case, the U.S. Supreme Court held that the government cannot withhold any evidence that would be helpful to the defense.

Johnson’s attorneys said McCray’s testimony was crucial because he was the only person to testify that Johnson admitted killing Barnes and that he asked for McCray’s help in disposing of her body. He was also the only one to testify that he saw Barnes’ lifeless body at any point between December 2010 and April 2011.

“The case against [Johnson] rises and falls with the credibility of McCray and thus the state’s failure to provide evidence regarding his credibility, hindered defense counsel from properly impeaching him and thus caused [Johnson] extreme prejudice,” Johnson’s attorneys said.

David Irwin, a former prosecutor, said Thursday that over the past couple of years defense attorneys have effectively used the Brady rule in a number of high-profile cases.

Irwin, an attorney at Irwin Green & Dexter LLP, cited to the case of former Sen. Ted Stevens of Alaska as one such example. In that case, a court-appointed special prosecutor last March faulted Justice Department prosecutors for failing provide relevant information to Stevens’ defense attorneys.

Criminal defense attorneys not connected to the Johnson case said his lawyers have made a strong argument for a new trial.

“I think the judge is going to err on the side of the defendant’s constitutional right to due process, the centerpiece of which is fairness, and will grant the motion for a new trial,” said Warren A. Brown, an attorney at the Warren A. Brown Law Office in Baltimore.

A. Dwight Pettit, an attorney at the Law Offices of A. Dwight Pettit P.A. in Baltimore, agreed.

“The prejudice is so overwhelming and heavily against the defendant, especially since this was the main witness in a circumstantial case,” Pettit said.

A jury convicted Johnson of second-degree murder. Prosecutors said he asphyxiated Barnes, 16, after Christmas 2010 and left her body in the Susquehanna River, where it was found more than three months later.

Pettit said Judge Alfred Nance, who presided over the trial, will have to make specific findings of fact as to whether the prosecution’s failure to disclose the information was intentional withholding of evidence or whether they concluded it was not exculpatory on the basis of the fact that McCray’s credibility was not being challenged in the Montgomery County case.

“If the judge finds that [prosecutors] knew they had exculpatory evidence and were acquiescent in [McCray] perjuring himself, that would be tremendous grounds for reversal,” Pettit said.

Brown noted that prosecutors are required to turn over exculpatory information.

“I am not sure Montgomery County’s failure to use him is exculpatory information,” he said. “Nevertheless, I think that since the prosecution has already told the defense where he has cooperated, in an abundance of caution the prosecution should have made the defense aware that he had been vetted by Montgomery County.”

Byron L. Warnken, an attorney and a longtime professor of criminal law at the University of Baltimore School of Law, said his “gut feeling” was that Nance will find the information to be material and not harmless.

“Prosecutors were placed on notice by Maloney and did nothing about it,” Warnken said Thursday. “That is exculpatory evidence that is material. It couldn’t be harmless error. I’m saying this looks like the defense is in a strong position for a new trial.”

Johnson is scheduled to be sentenced on March 20.