In a retrial that begins Tuesday, prosecutors will try to again convict Michael Maurice Johnson of murdering North Carolina teenager Phylicia Barnes.
But they will be attempting to do so with a “damaged” key witness, a veteran Baltimore defense attorney said.
Jury selection in the retrial of Johnson, convicted of murder in February, is scheduled to begin Tuesday in Baltimore City Circuit Court.
A. Dwight Pettit, of the Law Offices of A. Dwight Pettit P.A. in Baltimore, said Friday that the prosecution’s key witness, jailhouse informant James McCray, “was damaged significantly” in the first trial. As a result, he said prosecutors will have a difficult time retrying the case.
McCray’s credibility was important in the first trial because he was the only person to testify that Johnson admitted killing Barnes and was also the only one to testify that he saw Barnes’ lifeless body at any point between December 2010 and April 2011.
“Since he is the only witness and there is no forensic corroboration, I don’t see how the state can proceed to prove their case beyond a reasonable doubt,” said Pettit, who is not involved in the case. “The state’s attorney’s office seems to have a philosophy that if they throw enough things on the wall, something might stick. It’s a terrible way to proceed.”
But Warren A. Brown, of the Warren A. Brown Law Office in Baltimore, predicted it would actually be the defense attorneys who are going to have a difficult time retrying the case because of the circumstantial evidence. Brown said the fact that Johnson took off from work the day Barnes disappeared, the fact that he was seen moving a heavy container that could have held Barnes’ body and the fact that he had expressed some sexual interest in this “young girl” are issues that Johnson’s attorneys will have to overcome.
“In these cases where there is circumstantial evidence, jurors like to put the pieces together,” said Brown, who also isn’t involved in the case. “They like to feel like they have solved the puzzle. You can never tell. Jurors in Baltimore can be interesting.”
If he were representing Johnson, Brown said he would have Johnson testify that he did not make any sexual advances toward the teen.
Baltimore City Circuit Judge Alfred Nance ordered a new trial for Johnson in March because of an error prosecutors made after the verdict was in.
By failing to provide information about a key witness in speedy manner, prosecutors violated the 1963 U.S. Supreme Court decision in Brady v. Maryland, in which the court ruled that the government cannot withhold any evidence that would be helpful to the defense.
Johnson’s attorneys said prosecutors waited roughly two weeks to provide information that McCray had lied at trial about testifying in an unrelated Montgomery County case.
Barnes went missing while visiting her half-sister in Baltimore on Dec. 28, 2010. The teen’s body was discovered in April 2011 floating in the Susquehanna River.
Johnson was indicted on a first-degree murder charge in April 2012. He was accused of asphyxiating Barnes, who was 16 years old, in her half-sister Deena Barnes’ apartment and using a plastic container to move her body.
But Johnson, who had a relationship with Deena Barnes for about a decade, maintained his innocence. His attorneys challenged the medical examiner’s report that the cause of death was asphyxiation and the manner of death was homicide.
Johnson’s attorney, Russell A. Neverdon of the Law Office of Russell A. Neverdon Sr. LLC in Baltimore, did not return a call or email Friday seeking comment on the retrial.
Assistant State’s Attorney Lisa Goldberg acknowledged in closing arguments during the last trial that Barnes could have died from hypothermia.
Deena Barnes testified that she gave alcohol to her underage sister and described seeing Johnson make sexual advances toward Phylicia in June 2010.
Goldberg, who said during opening statements that Deena was “too permissive,” maintained that a “changing point” occurred between Phylicia and Johnson on June 13, 2010.
On that night, Goldberg said, the sisters and Johnson were in a group of five people who went streaking and then recorded a video of themselves naked and fondling each other.
The video, about 15 minutes long, was shown to the jury but could not be seen by others in the courtroom.
During the first trial, defense attorneys also attacked the credibility of Daniel Nicholson IV, the lead detective in the case.
Nicholson was suspended from the city police department pending an investigation into allegations that he used improper strategies when looking into the disappearance of his own daughter, who later returned home.
He reportedly used his badge to conduct an off-duty search of a house where he thought his daughter was staying. At least one person who was in that house at the time accused Nicholson of assault.
Nicholson was charged last month with two counts of second-degree assault, one count of fourth-degree burglary and one count of making a false statement to police.
His attorney, Matthew B. Fraling III of Harris Jones & Malone LLC in Baltimore, said the charges against the detective are “spurious.”
“We maintain his complete innocence,” Fraling said in a telephone interview last month. “He did not do anything at any time that any parent with a missing child would not have done. All of his actions were within the confines of the law.”