Man in prison for 1974 city slaying gets green light to pursue new trial

June 08, 1993|By Jay Apperson | Jay Apperson,Staff Writer

A former East Baltimore man who has spent the past 18 years in prison for a 1974 murder he says he did not commit will be able to continue his pursuit of a new trial under a ruling issued yesterday by a judge.

Baltimore Circuit Judge Thomas E. Noel stopped short of granting Michael Austin's request for a new trial, but he ruled that Austin was denied effective assistance of counsel during a previous, unsuccessful appeal of his 1975 murder conviction.

Ruling that Austin's lawyer should have challenged the admission of a calling card as evidence near the end of the 1975 trial, Judge Noel granted Austin a "belated appeal," meaning that the former iron pourer will be allowed to try to persuade an appeals court to grant him a new trial.

"I'm confident that now that my client has been granted a belated appeal, he will be thoroughly vindicated," attorney Robert Feinberg said yesterday. "I'm not sure I'll be representing him but someone will be filing an appeal on his behalf, that's for sure."

Austin, 44, was sentenced to life plus 15 years in prison after a jury convicted him of murder and a handgun violation in the fatal shooting of a security guard during a robbery at the Crown Food Market, a corner grocery at Harford Avenue and Preston Street in East Baltimore.

In September 1991, Austin renewed his efforts for a new day in court. His arguments, including the assertion that prosecutors withheld from his lawyer information that an eyewitness to the shooting would exonerate him, were detailed in Feb. 7 editions of The Sun.

Complicating the review of events nearly two decades old were the 1979 death of Austin's trial lawyer, James W. McAllister, whose decomposed body was found in a vacant lot in Randallstown, and the fading memories of the original prosecutor in the case, Joseph J. Wase.

"Additionally, to put this case in better perspective, one must understand many of the events of the time," Judge Noel wrote in his 35-page order.

"The assistant state's attorney's position with the office was in jeopardy and he made efforts to stay in trial. It was not unusual for him to try major felony cases with no preparation, just to be in court. This was the situation in this case."

In denying Austin's motion for a new trial, Judge Noel noted that statements made by Mr. McAllister during the trial -- along with testimony given by Austin during a hearing two months ago -- showed the defense lawyer likely was present at a line-up in which the eyewitness, store clerk Eric Komitzsky, could not identify Austin as the killer. Noting that Mr. Komitzsky would have been subject to cross-examination had he been called as a defense witness, the judge said Mr. McAllister may have decided not to call the store clerk for strategic reasons.

But Austin fared better when the judge reviewed events surrounding the introduction of the calling card that police said they took from Austin upon his arrest.

On the back of the card, written lightly in pencil was the name "Horace Herbert," Austin's co-defendant, who was eventually acquitted.

Mr. McAllister complained that the development destroyed Austin's credibility because he had previously testified that he had never met any Horace Herbert. Austin claimed that the evidence had been manufactured by police.

In the matter of the calling card, the judge ruled that prosecutors violated rules requiring that such evidence be made known to the defense. But, when questioned by Judge Noel, Austin said he would have testified during the trial even if he had known of the calling card. Thus, said the judge, the late introduction of the evidence did not violate Austin's Fifth Amendment right against self-incrimination.

But when Austin's lawyer on appeal did not raise the issue of whether the calling card should have been admitted into evidence, Austin's Sixth Amendment right to effective assistance of counsel was violated, Judge Noel ruled.

Baltimore Sun Articles
Please note the green-lined linked article text has been applied commercially without any involvement from our newsroom editors, reporters or any other editorial staff.