Jessamy opposes retrial for inmate

State's attorney sees no legal errors in 1974 murder case

Setback for Michael Austin

April 11, 2001|By Todd Richissin | Todd Richissin,SUN STAFF

The Baltimore state's attorney opposed yesterday the release of Michael Austin, an ironworker convicted of murder in 1975 in a case the man who prosecuted him now says was flawed.

The case should not be reopened because no legal errors occurred during his trial that should overturn his conviction, according to the court papers filed in Baltimore City Circuit Court.

While not directly affirming their belief in Austin's guilt, prosecutors said in the court papers that "Austin sets forth no smoking gun, no scientific evidence" to prove his innocence.

The matter has been assigned to Judge John Carroll Byrnes, who will decide whether to reopen the case. He could make a decision based solely on arguments made in court papers filed by both sides, or he could choose to hold a hearing. He is not expected to decide until next month.

Austin's case has gained attention because it has been taken up by Centurion Ministries, a group from Princeton, N.J., that seeks to free inmates it believes are innocent and not convicted merely because of procedural errors.

The group has helped free 29 people since 1985, including a Toledo, Ohio, man who walked out of prison yesterday after serving 19 years for a rape and murder conviction. With the support of prosecutors, he was freed based on a lie-detector test and DNA evidence.

The man who prosecuted Austin, Joseph Wase, now retired, has joined Centurion in calling for Austin's release, as has former Mayor Kurt L. Schmoke, who also served as Baltimore state's attorney.

After the case was chronicled in The Sun last month, former State's Attorney William A. Swisher - on whose watch Austin was convicted - said it appeared serious mistakes were made, and he, too, said a judge should reopen the case.

But in court papers filed yesterday, prosecutors say most of Austin's arguments have been heard and dismissed by appellate judges during the 26 years he has been in prison. Any new arguments about his innocence are variations of legal issues already decided, according to court papers.

Austin was convicted of the April 29, 1974, killing of Roy Kellam, who was working security at the Crown Food Market at East Preston Street and Harford Road. He was shot by one of two robbers.

Centurion and Larry Nathans, a Baltimore lawyer hired to represent Austin, say the case should be reopened because the only eyewitness to testify lied under oath and the only physical evidence used proved to be bogus.

"We are extremely disappointed that the state has chosen to aggressively fight the release of our innocent client rather than join us in seeking that justice is finally accomplished in this case," Nathans said. "Their response is primarily a series of hyper-technical defenses that attempt to preclude the truth from surfacing - that Mr. Austin's conviction is wrong and that no fair-minded person who is allowed to hear all of the evidence could possibly conclude otherwise."

Sharon A. H. May, the deputy state's attorney handling the case, declined to be interviewed for this article, as did Patricia C. Jessamy, the state's attorney.

Nathans filed court papers last month arguing, among other points, that problems with the witness and physical evidence were revealed after Austin's last appeal was decided, in 1993.

The witness was a clerk in the store named Jackie Robinson, whom the prosecution presented as a college student testifying out of civic duty.

Nathans and Centurion have obtained affidavits from Robinson's family that say the clerk was not a college student but a 10th-grade dropout, a drug user and a drug dealer who may have been in trouble with the law at the time of Austin's trial.

The only physical evidence at trial was a business card that jurors were told was found in Austin's wallet when he was arrested. Scribbled on the card was the name Horrace Herbert, who, jurors were told, was Austin's accomplice.

But at Herbert's trial, prosecutors admitted not only that they lacked enough evidence to convict him, but also that they were certain they had the wrong man.

Austin's current attorney said the importance of the business card and the outcome of Herbert's case cannot be overstated. No judge has ever heard that prosecutors admitted Herbert was the wrong man and therefore that the card was irrelevant.

In answering that argument yesterday, the state's attorney's office said that records showing how Herbert's case was disposed were available to Austin's previous attorneys. Because those attorneys were lax, the court papers state, the opportunity for that appeal has been lost.

That's not what prosecutors from the same office said during Austin's last appeal, in 1993. Defense attorneys had complained in that appeal that they were not notified that Herbert was not convicted in the Crown robbery. Prosecutors said in a hearing that they did not offer Austin's attorneys any information concerning Herbert's trial because they had no proof of what happened.

James McCloskey, the president of Centurion Ministries, which is not related to any church, said that he had hoped prosecutors in Baltimore would recognize the earlier mistakes and join in trying to free Austin, now in the Maryland House of Correction in Jessup. Instead, he said, the prosecutors have compounded those mistakes.

"They ought to be ashamed of themselves for fighting this and hanging on to this obviously false conviction without any desire to be open to what the truth is," McCloskey said. "They're as stiff-necked a bunch of prosecutors as I've seen anywhere at any time."

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