A team of defense attorneys is now coming up with a plan on how a sex tape involving their client will play into the trial. Michael Johnson, 28, is charged with killing Phylicia Barnes, a North Carolina teen visiting her family in Baltimore for Christmas two years ago.
"What's disturbing about this is that one of the people happened to be a sister, an older sister, an adult, who's engaged in sexual conduct while her sister is engaged in sexual conduct and it's not with Mr. Johnson. It's with another person," said Russell Neverdon, Johnson's defense attorney, who practices with Bates & Garcia, LLC.
The defense team watched the recording, which we're told was stored on Deena Barnes' cell phone and says Phylicia was engaged in sex acts with Johnson's younger brother. Deena Barnes, her older half-sister, was with Johnson.
The Medical Examiner says Barnes died from asphyxiation.
"There's no choking. There's no rough housing, no horse play, anything of that nature that is physical aggressive in any means. Anything that's masochistic, how you would look at it, nothing of that nature," said Neverdon.
The defense has to respond to the state's request to close the courtroom for over 16 minutes while the tape is played, but open it back to the public while Deena Barnes is on the stand. Prosecutors don't typically speak before a trial, so we don't know why they believe a sex tape with minors is worth playing in court.
"I think this exposure to the sex tape at this late in time on the two-year anniversary of this girl's disappearance is appalling. It's basically about character assassination," said Tony Garcia, of Bates & Garcia, LLC.
Phylicia Barnes went missing two years ago on Friday. Four months later, her remains were found in the Susquehanna River near the Conowingo Dam.
Her death was ruled a homicide days later, but it took another year to make an arrest.
The defense won't tell us all of their attacks, but they say one is a witness who claims he saw Phylicia alive in Cecil County.
"The state's contention is that this murder happened in Baltimore City. Otherwise, if the state believed that she was murdered in Cecil County then this case would be in Cecil County," said Ivan Bates, another defense attorney.
The defense also claims the tape shows Johnson and Barnes are friendly, which is a different impression from what was painted at Johnson's bail review back in April.
It also brings into question if anyone will be charged with possessing child pornography. The age of consent is 16 in Maryland, but the age to tape a sex act is 18.
We don't know if Deena Barnes or anyone else will be charged.
The defense believes it's their client's right to keep the court open while the tape is played. A judge will make the final call before the trial starts on January 22, 2013.