Schmoke critical of Jessamy's decision

She opposes review of murder conviction

April 12, 2001|By Todd Richissin | Todd Richissin,SUN STAFF

Kurt L. Schmoke, who served eight years as Baltimore's top prosecutor before becoming mayor, criticized yesterday the state's attorney's office for trying to prevent a review of a 1975 murder conviction.

Schmoke, a political supporter of State's Attorney Patricia C. Jessamy, said he was "dumbfounded" by her decision to oppose a review of the case of Michael Austin. Jessamy's office filed court papers Tuesday arguing that no judge should review Austin's conviction.

"I was extremely disappointed in her response," said Schmoke, now an attorney in private practice. "I was hoping her office would simply remain neutral and allow a judge to hear this matter without raising technical reasons for not even holding a hearing."

Schmoke had privately urged Jessamy to let the review move forward, arguing that enough new questions about the conviction called for a fresh examination and there were no sound reasons to oppose it.

"We're here to seek justice, not just to win cases," Schmoke said in an interview. "Let's have a neutral party take a look at it. If a judge says that, indeed, this should require a reversal or an overturning of the case, then I think that would serve the interests not only of Mr. Austin but the interests of the whole community."

Schmoke had been asked to review Austin's case by Centurion Ministries, a New Jersey group that seeks to free inmates nationwide who it believes are innocent. He agreed that Austin, convicted of murdering security guard Roy Kellam during a 1974 robbery in East Baltimore, should be freed. Austin's attorneys asked a judge last month to reopen the case because, among other reasons, new evidence has been discovered.

On Tuesday, Sharon A. May, one of Jessamy's two deputies, filed court papers arguing that Austin's case has been reviewed by enough judges during 26 years of appeals. Her arguments were based almost exclusively on procedural matters, and the 19 pages she filed with the court never addressed whether her office believes Austin is guilty.

Austin's Baltimore attorney, Larry Nathans, maintains that new questions have been raised since Austin's last appeal about the trial's only eyewitness and the outcome of a case involving a man prosecutors had said was Austin's accomplice.

The family of the eyewitness, Jackie Robinson, has signed affidavits saying that he was a drug user and dealer who confided that he had helped convict the wrong man. Robinson died in 1997.

During Austin's trial, Joseph Wase, the prosecutor, told jurors that a man named Horrace Herbert was Austin's accomplice. The prosecutor then produced a business card -- which he said came from Austin's wallet -- with Herbert's name written on it.

Prosecutors acknowledged shortly after Austin's trial that Herbert had nothing to do with the crime.

In 1993, the state's attorney's office and Austin's lawyers thought Herbert had been acquitted. What is now known, Austin's attorneys argue and Jessamy's office acknowledges, is that not only was Herbert not convicted, but prosecutors stopped Herbert's trial and admitted to the judge that they had the wrong man.

Despite prosecutors' representations in the 1993 appeal that court records showed only that Herbert had been acquitted, they now say the true outcome of Herbert's case has always been available in the public record. Therefore, they argue, the contention that the link made between Herbert and Austin was unfairly prejudicial should not be heard.

Schmoke has been joined in his support for Austin by Wase, the original prosecutor in the case, and by William A. Swisher, the former state's attorney on whose watch Austin was convicted.

The victim's widow, Alveria Kellam, has also said she would like to see Austin, now 52, released.

The case has been assigned to Judge John Carroll Byrnes. He is not expected to decide whether to hold a hearing on reopening the case until next month.

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