Retrial sought in 17-year-old murder Lawyer contends trial wasn't fair

February 07, 1993|By Jay Apperson | Jay Apperson,Staff Writer

Two men enter the Crown Food Market, a corner grocery at Harford Avenue and Preston Street in East Baltimore. One places a quart of grape juice and a bar of soap on the counter. The other shoots the security guard in the chest.

The gunman moves toward Eric Komitzsky's register. When the young clerk is too slow in emptying the till, the robber cuffs him across the face with the gun.

"I remember today what the guy looked like," Mr. Komitzsky says almost two decades later. "He didn't look like Michael Austin."

Michael Austin has spent the past 17 years in prison for murdering the security guard, but he says he didn't get a fair trial and he's seeking another day in court to prove his innocence.

Mr. Komitzsky, who says he "wasn't invited" to testify at Austin's 1975 trial, never much followed the case after hearing an arrest had been made. His family sold the store and he moved on, hoping to put behind him the trauma of witnessing his pal Roy Kellam's murder. Now, however, Mr. Komitzsky is willing to testify for Austin.

Baltimore Circuit Judge Thomas E. Noel, who was a law clerk in the courthouse when Austin was sentenced to life plus 15 years, says he will decide within the next few weeks whether the 42-year-old prisoner gets a new trial.

"Amazing," the judge said one day in court. Amazing that it took this long for all of this to come out.

The judge will consider:

* Mr. Komitzsky's claim that the gunman was at least 7 inches shorter than Austin; also, a document showing he selected another suspect from a photo lineup as strongly resembling the killer.

* Documents showing police were told of others who supposedly bragged of committing the murder, including one man who allegedly described a scenario nearly identical to the account in the initial police report.

* A document showing fingerprints were lifted from the store's check-out counter; no such prints were mentioned during the trial.

* Perhaps most important, allegations that Austin did not get a fair trial because city prosecutors broke the rules by failing to turn over all this potentially exculpatory evidence to the defense. It is on this point that his lawyer now presses for a new trial.

Joseph J. Wase was the prosecutor in Austin's trial, but he wouldn't be a prosecutor for long. In 1975 he was on the verge of being fired -- for opposing the newly elected chief prosecutor in the previous year's election, Mr. Wase says -- when he took over the Austin case just days before trial.

He can't say whether defense attorney James W. McAllister was ever told about Mr. Komitzsky's testimony or the other suspects. And no one can ask Mr. McAllister -- his decomposed body was found in 1979 in a vacant lot in Randallstown.

Thus, Judge Noel is left to interpret yellowing court and police files and to read between the lines of the trial transcript.

The lawyers are willing to help in that effort. Look at pages 37, 63 and 64 of the transcript, Assistant State's Attorney Lawrence Doan told the judge during a Dec. 14 hearing in city Circuit Court. They show Mr. Wase telling the jury that Mr. Komitzsky witnessed the robbery but could not identify the killer. Mr. McAllister must have known about Mr. Komitzsky, the prosecutor argued.

No, those pages don't let the state off the hook, countered Robert Feinberg, Austin's lawyer. He pointed to the other evidence he believes remained undisclosed to the defense and to a document in which the state said it had no exculpatory information to share with the defense.

"The more I look at it and the more documents come to light, it looks like [Austin] was railroaded," Mr. Feinberg said in an interview.Framed by police?

Austin has his own theory on that point. From the Maryland Correctional Institute in Hagerstown, Austin claimed police framed him in the store guard's slaying because they were frustrated when he beat a previous murder charge. He said they manufactured evidence to ensure a conviction.

During his trial, Austin testified he'd been in the Crown Food Market, but only when his mother sent him there as a small boy.

For decades, starting in the 1940s, Mr. Komitzsky's family owned the store. The family members sold it shortly after the murder, but you can still see the placards they installed in the third-floor windows reading, "Eat better for less," "Crown meats are best."

Two men entered the store about 5:20 p.m. on April 29, 1974. After shooting the 52-year-old security guard, the robbers fled with cash -- the indictment tallied it at $1,942 -- and the guard's .22-caliber pistol.

Mr. Komitzsky and Jackie Robinson, another store employee, told detectives the gunman was a light-skinned black man between 5 feet 8 inches and 5 feet 10 inches tall. Still, Michael "Slim" Austin, a black man with a dark complexion, was arrested and charged with the murder. All 6 feet 5 inches of him.

A family shadowed by murder

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