Court asked to review conviction

Jessamy's backing sought in Austin case

March 24, 2001|By Todd Richissin | Todd Richissin,SUN STAFF

Attorneys for Michael Austin, an East Baltimore man convicted of murder in 1975, filed court papers yesterday that argue he is serving life in prison because of false testimony and evidence withheld by police and prosecutors.

The court papers, filed in Baltimore City Circuit Court, seek to have Austin's case reopened, which could lead to his freedom after 26 years behind bars.

Yesterday's filing puts his fate largely in the hands of Baltimore City State's Attorney Patricia C. Jessamy. Her options are to agree that the trial was flawed or oppose a judge's review of the case. She could also choose not to respond.

The judge, who is not required to follow Jessamy's recommendation, could decide whether to reopen the case based solely on the court papers, or a hearing could be ordered. If the case is reopened, the judge could affirm the conviction or set it aside. (A retrial would be nearly impossible because there is no physical evidence implicating Austin, and the state's only eyewitness is dead.)

After news reports about Austin's case appeared Sunday, two of Jessamy's predecessors, former Mayor Kurt L. Schmoke and William A. Swisher, said they believe a judge should review the case.

Schmoke said he believes Austin is innocent; Swisher, the city's top prosecutor when Austin was convicted, said there are enough questions about the case that Jessamy should not oppose a judicial review.

The man who prosecuted Austin, Joseph Wase, has also said that based on evidence that has emerged since trial, the conviction was a mistake. Austin was convicted of the shooting death in 1974 of Roy Kellam, a part-time security guard at Crown Food Market in East Baltimore.

Court papers filed yesterday list several problems with Austin's trial. Chief among them are the credibility of the only eyewitness to testify in the case, the sudden appearance of a business card used to link Austin to the crime and police reports that were withheld from defense attorneys.

"If the critical information that has now been uncovered had been fully presented in Mr. Austin's former proceedings, he would be free," Larry Nathans, Austin's Baltimore attorney, said in an interview. "This new information compels a reversal of his conviction."

Nathans was hired to represent Austin by Centurion Ministries, a Princeton, N.J.-based group that works to free wrongfully imprisoned inmates around the country.

In Austin's case, a business card was presented to jurors with the name Horrace Herbert written on it. The prosecution told jurors the business card was found in Austin's wallet at his arrest and that Herbert was "the other man in this murder and robbery." Prosecutors later admitted that Herbert had nothing to do with the crime.

The only eyewitness presented at the trial was Jackie Robinson, a clerk at Crown at the time of the killing. Robinson testified he was a college student, and the prosecutor said Robinson was testifying because it was his civic duty.

In fact, he was a high school dropout who changed his description of the killer to make it sound like Austin after police found drugs in his house during a raid. Robinson's involvement with police, Austin's new court papers state, might have been responsible for his testifying as he did.

"Despite passing himself off to the state as a clean-cut college kid, he was in fact a drug user and drug seller who was aware he was implicating Mr. Austin even though he knew Mr. Austin was innocent," the court papers state.

The court papers also maintain that Austin had an attorney at trial who failed to mount an effective defense. The defense attorney, James C. MacAllister, did not know until the day of Austin's trial that he would be defending the murder case and did not subpoena anybody.

Among those he failed to call to testify was another clerk in the store, Eric Komitzsky, who viewed Austin in a police lineup but did not identify him as the killer.

Nathans said that in the past few days he has been in touch with his client, who is serving his sentence at the Maryland House of Correction in Jessup. Austin is aware of the comments by Schmoke and Swisher, Nathans said, and hopes that a judge will review his case and find it flawed.

"He's very grateful for the support," Nathans said. "He's looking forward to being set free."

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