Ex-prosecutor says conviction could be flawed

Swisher backs review by judge in murder case tried on his watch

1975 verdict in question

March 22, 2001|By Todd Richissin | Todd Richissin,SUN STAFF

William A. Swisher, a former Baltimore state's attorney, said yesterday that a murder case his office prosecuted in 1975 might have been flawed and that a judge should determine whether to set aside the conviction.

"The last thing you want is an innocent man in jail," said Swisher, who was Baltimore's top prosecutor from 1975 to 1982.

After reviewing news reports of Michael Austin's trial, Swisher said the conviction might have been a mistake and that Baltimore State's Attorney Patricia C. Jessamy, should have no objections to a review of the case.

Austin was convicted of killing security guard Ray Kellam at a Crown Food Market in East Baltimore in April 1974. He has been incarcerated for 26 years and is at the Maryland House of Correction in Jessup.

Swisher, 67, an attorney in private practice, said he did not remember the case but that news reports about a witness and a piece of physical evidence used to prosecute Austin raised questions about his guilt.

"It sounds like somebody made some mistakes," Swisher said in an interview. "There's nothing wrong with a judge reviewing the case when there are serious questions."

Swisher made his comments two days after former mayor Kurt L. Schmoke, who succeeded him as state's attorney, called for a judge to review the case. Schmoke urged Jessamy not to object to efforts to have a judge review the conviction. Joseph Wase, who prosecuted Austin, has said Austin should be freed.

Austin's case has been taken by Centurion Ministries, a Princeton, N.J., group that works on behalf of inmates it believes are innocent and not just wrongly convicted because of flaws in the judicial system.

Austin's Baltimore attorney, Larry Nathans, is expected to file court papers this week in Baltimore Circuit Court seeking to have the case reopened. Jessamy has said she will review the case once it is filed to determine whether to oppose its reopening. She has declined to be interviewed about the comments by Schmoke and Swisher.

Sunday's Sun reported that Austin's conviction was based on false testimony and flawed evidence and that the prosecution withheld information that might have cleared him.

"We're extremely pleased by the private and public support we've received from Ms. Jessamy's two predecessors," Nathans said. "Having Mr. Schmoke, Mr. Swisher and Austin's prosecutor, Joseph Wase, openly support him gives added credence to what is now patently obvious: There is absolutely no credible evidence linking Mr. Austin to the crime for which he's been unjustly jailed for 26 years."

The two pieces of evidence used to convict Austin were a business card with the name of his alleged accomplice written on it and the testimony of witness Jackie Robinson. Jurors were told that the business card was found in Austin's wallet when he was arrested and that it helped prove he committed the crime. The witness, they were told, was a diligent college student testifying only because he saw it as his civic duty.

Prosecutors later said the man described as the accomplice had nothing to do with the crime. Relatives of Robinson have described him as a drug user and dealer who changed his description of the killer shortly after police raided his home and discovered drugs. Robinson was a high school dropout.

Robinson had originally described the killer as about 5-foot-8 but later testified that he was certain that Austin - who is 6-foot-5 - was responsible for Kellam's death.

Information about at least eight other suspects and descriptions of the killer from four other witnesses were not turned over to Austin's defense attorney, as required by law. Witnesses' descriptions all said the killer was at least a half-foot shorter than Austin.

Wase has said he does not remember police turning over that information to him. Now retired, Wase said he never would have prosecuted the case had he known about the materials held by police and that he thinks Austin should be freed.

Alveria Kellam, the widow of the man who was killed, also wants Austin freed.

Wase said Austin's trial might have been flawed partly because Wase received the murder case on a Friday and the trial began the following Monday, leaving him little time to question detectives about evidence.

Swisher, interviewed in his Highlandtown office, said prosecutors typically had months to prepare for murder trials. He had taken office several months before Austin's trial began and did not understand why Wase was given only a weekend, he said.

"You want to give them time to avoid the problems you're hearing about here," Swisher said.

He said he would not call Jessamy, as Schmoke has done. He said she is a competent state's attorney who will recognize that her job is not to preserve Austin's conviction at all costs but to carefully consider the arguments made by Nathans and Centurion.

"Her job is to see justice is done," Swisher said.

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