Man's case to be heard

Judge will weigh arguments for convicted killer

Jessamy opposed review

Former prosecutors, victim's widow urge Austin's release

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

A judge has ordered a hearing to consider reopening the case of Michael Austin, a Baltimore ironworker whose 1975 murder conviction is being contested by a national organization that seeks to free innocent prisoners.

The order was a setback for Baltimore's top prosecutor, State's Attorney Patricia Jessamy, whose office had argued against a hearing. It was also a signal the judge has sufficiently serious questions about the case that he wants to hear directly from defense attorneys and the prosecutor handling the case, Sharon A. May.

The hearing, ordered by Baltimore Circuit Judge John Carroll Byrnes, is scheduled June 20.

"We are grateful the court will hear Mr. Austin's case," said Larry Nathans, his lawyer. "Mr. Austin is innocent, and we're confident his conviction will be reversed."

Austin's case has been taken up by Centurion Ministries, a New Jersey-based group whose efforts have helped free 29 people around the country.

Austin is serving a life sentence for the killing of Roy Kellam, shot in 1974 during a robbery of the East Baltimore convenience store where he was working as a security guard.

Jurors in Austin's case deliberated about two hours, basing their decision on two pieces of evidence: the eyewitness account of a clerk who was working at the store and a business card -- later found to be irrelevant -- that prosecutors told jurors was found in Austin's wallet and had scribbled on it the name of his accomplice.

Centurion investigated Austin's case for more than three years and obtained affidavits from the clerk's family that he was a drug user and dealer who may have been in trouble with the law when he testified.

The clerk, Jackie Robinson, died in 1997. His family signed affidavits saying he had confided that he helped convict an innocent man. Horrace Herbert -- whose name was on the card and identified by prosecutors as Austin's accomplice -- was never convicted of the crime. Prosecutors halted his trial and told a judge Herbert had nothing to do with the crime.

Austin's attorneys also argue that his trial was unfair because the prosecution withheld important documents that could have cleared him. Among them were police reports from witnesses who identified the gunman as 5 feet 8 to 5 feet 10 inches tall, with a light complexion. Austin has a dark complexion and is 6 feet 5 inches.

Jessamy has refused all comment on the case, as has May, one of her two deputies. Prosecutors last week filed court papers against reopening the case, arguing that Austin had exhausted his appeals.

His attorneys argue that the new evidence warrants a fresh look at the case. Among those calling for Austin's release are former Baltimore Mayor Kurt L. Schmoke -- who once served as Baltimore's top prosecutor -- and Joseph Wase, the man who prosecuted Austin and has since retired.

William A. Swisher, the state's attorney when Austin was convicted, has said that mistakes in the case were obviously made and that a judge should consider overturning the conviction.

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

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