After 26 years, justice overdue

Michael Austin is serving a life sentence for murder. But the case against him was based on false testimony and flawed evidence.

March 18, 2001|By Todd Richissin | Todd Richissin,SUN STAFF

Michael Austin, as far as the state of Maryland is concerned, is a killer. He's the one who walked into a Baltimore convenience store, fired a bullet into a security guard, shot the guy dead for a few lousy bucks.

That's why Austin got life in prison, why he's growing old in the Maryland House of Correction. He was in there when his nieces and nephews were born. He was in there when his mother died.

That's 26 years - and counting.

Those who want him freed say that is a shame - more of a tragedy, really - because in a case clouded by serious doubt and demonstrable lies, one thing is clear: Not a single piece of credible evidence links Austin to the crime.

And that has led to support for his release from a growing list of people, including an advocacy group for the innocent, the 72-year-old widow of the man killed - and the prosecutor who sent Austin to prison.

"Had I known then what I know now, I would have never prosecuted the case," said the assistant state's attorney, Joseph Wase, now retired.

Wase presented jurors with only two pieces of evidence: the testimony of an eyewitness, and a business card, supposedly found in Austin's wallet, with the name of the man alleged to be his accomplice written on it.

The witness had originally told police the killer was a light-skinned man, about 5-foot-8. Austin, a dark-skinned man, is 6-foot-5.

Wase said he had discounted the disparity in descriptions because, as far as he knew, the witness was a diligent college student testifying as his civic duty. But the witness' family has since come forward to expose him as a drug dealer and drug user who had been in trouble with the law just before he changed his description of the killer.

The supposed college student, in fact, was a high-school dropout.

And the business card - presented at trial as the equivalent of a smoking gun - in no way implicated Austin in the crime.

The Sun reviewed his case at the urging of Centurion Ministries, a Princeton, N.J., group that tries to free prisoners it believes are innocent, not just wrongly convicted because of procedural errors. Since 1983, Centurion has won the freedom of 28 prisoners.

Centurion plans to file papers asking a Baltimore judge to re-examine Austin's case. Prosecutors have declined to join the request.

The Sun interviewed key players in the case, reviewed more than 900 pages of court transcripts and investigative files and found that not only was Austin convicted on faulty evidence but also that information potentially clearing him was withheld from defense attorneys.

Police reports kept from the defense, for example, show detectives had at least eight other suspects, but there are no records that they were even questioned.

Austin still sits behind bars, blinks behind eyeglasses, rubs a chin that shows whiskers that have gone gray during the time he has been locked up. He began doing his time when he was 26. Now he's 52.

"A lot of things have changed since I've been in here," Austin says, and his voice trails off, and then he shares a wish, one that tells more than numbers just how long he's been put away.

"What I'd like to do," he says, "is see that new Harborplace thing they built."

The crime

Roy Kellam was a good man.

The afternoon of April 29, 1974, he arrived at the Crown Food Market at East Preston Street and Harford Road after working his other job, driving a city garbage truck. The day was a scorcher, 93 degrees, humidity near 70 percent.

His wife, Alveria, worked in the shipping department of Sekulow Bros., sending out handbags and gloves. They had two children, 16-year-old Michael and 15-year-old Tavoria, which was why Roy Kellam, 52, moonlighted as a security guard at Crown, near Green Mount Cemetery.

About 5:20 that day, two men entered the store. They saw the security guard, gun on his right hip. One of the men pulled a .32-caliber Smith & Wesson revolver. He pointed it at Kellam.

Kellam backed up.

The gunman fired.

A bullet pierced Kellam's heart.

The gunman and his accomplice fled with $3,970.

A short time later, Alveria Kellam had a window seat on the No. 19 bus as she rode from her factory job to her home a few blocks from Crown. She noticed police cars.

"I was wondering, `Now what's going on there?'" she remembers. "Well, I got home and someone - one of the neighbors - said that someone robbed Crown and your husband got shot. My daughter called the store, and the man who answered it, he says, `Homicide.'"

Ray Kellam was dead.

Eric Komitzsky, the 22-year-old nephew of the store owner, was working one cash register at the time; a 23-year-old clerk named Jackie Robinson worked the other. Police got almost identical descriptions of the gunman. A light-skinned black guy, 5-foot-8 to 5-foot-10, kind of skinny.

It took nearly a month for a composite drawing to be released. A week after that, according to police reports, a tipster said that Austin and a guy named Horrace Herbert had robbed Crown. A detective grabbed about a half-dozen mug shots, including those of the two new suspects.

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