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Experts: Barnes’ murderer has strong grounds for appeal
Defense attorneys, former prosecutors and other legal experts believe that Michael Maurice Johnson, convicted last week of murdering 16-year-old Phylicia Barnes, has strong grounds for an appeal.
Johnson’s attorneys, Ivan Bates and Tony Garcia of Bates & Garcia P.C. in Baltimore, have confirmed they are considering an appeal based on statements prosecutors made during closing arguments, which included details that went beyond testimony and evidence heard by the jury.
At issue is the testimony of convicted thief James McCray, who told the jury that Johnson called him for help after he killed Barnes. During closing arguments, prosecutors urged jury members to view McCray as a credible witness because he had knowledge of events that had not been publicly available.
During those closing arguments, defense attorneys objected to those comments because that information had not been introduced into evidence during the trial. Baltimore Circuit Court Judge Alfred Nance sustained the objection, but did not instruct the jury to disregard these statements, a critical decision, according to legal experts.
Byron L. Warnken, a professor at the University of Baltimore School of Law, pointed to the case of Esterline v. State, in which the Court of Special Appeals held that prosecutors must confine closing arguments to facts in evidence. A fellow professor, Jose F. Anderson, said that appellate courts give “a lot of deference” to trial courts.
Attorneys who were not involved in the case agreed with Warnken.
“If the prosecution went outside of the scope of the evidence, that is strong grounds for an appeal,” said A. Dwight Pettit, an attorney at the Law Offices of A. Dwight Pettit P.A. in Baltimore.
Pettit said he was surprised at the verdict.
“The evidence was very, very circumstantial,” he said. “I really expected a not-guilty verdict.”
Defense attorney Arnold M. Weiner said Judge Nance’s failure to instruct the jury to disregard problematic statements during closing could pose “substantial problems.” Weiner said in most cases, a judge’s instruction to the jury to disregard the statements would be enough to “protect the record,” but that didn’t happen in this instance.
“In a close case like this, the impact of every error is magnified,” said Weiner, of the Law Offices of Arnold M. Weiner in Baltimore.
David Irwin, a former prosecutor, agreed that the case against Johnson was highly circumstantial. Irwin, an attorney at Irwin Green & Dexter LLP, also said that because this was such a tough case, any prejudicial statements by prosecutors could be problematic. He said that if the statements were intentional and prejudicial it is far more reversible.
Warren A. Brown, an attorney at the Warren A. Brown Law Office in Baltimore, said the prosecutor’s “Achilles’ heel” was the testimony of the medical examiner, Dr. Pamela E. Southall. Southall concluded that the cause of Barnes’ death was asphyxia — a catch-all term that includes drowning as well as suffocation, smothering, strangulation and other forms of oxygen deprivation — and that the manner of death was homicide. She admitted, however, under cross-examination that it was possible that the teenager could have fallen or jumped in the water and then suffered from hypothermia.
Brown, however, was critical of a number of tactics taken by Johnson’s attorneys throughout the case. Brown said it “didn’t make much sense” for the defense to only offer a single witness. He also said it was “insane” that defense attorneys failed to follow through on their promise to call a witness who would testify that he saw Barnes in another county after she disappeared and after prosecutors say she was killed.
“You put the state on notice and then if you don’t deliver it gives the jury pause,” Brown said. “The defense would have done well to also point out that the state spent all of their efforts focusing on one guy and they were only able to come up with a circumstantial case.”
