Hearing today in 1974 murder

Austin seeks to get life sentence vacated

June 20, 2001|By Todd Richissin | Todd Richissin,SUN STAFF

More than 26 years after a jury found Michael Austin guilty of killing a security guard in East Baltimore, he is scheduled to appear in court today hoping to convince a judge that he was wrongly convicted.

Austin, supported by representatives from a national group that seeks to free prisoners it believes are innocent, is scheduled to appear at 2 p.m. for a hearing before Judge John Carroll Byrnes of Baltimore City Circuit Court.

The judge must first decide whether to reopen the case, something that has been opposed by prosecutors. If the case is reopened, the judge could decide whether to vacate Austin's life sentence. That would, in effect, free him because the state's only witness has died. It is not clear whether Byrnes will make either or both rulings today.

"I just want to reclaim my life and come home," Austin said over the weekend in a telephone interview from the Maryland House of Correction. "I want to meet all the nephews and nieces that have been born since I've been in here."

Austin is in prison for the killing of Roy Kellam, who was shot April 29, 1974, when two men robbed a Crown Food Market near Green Mount Cemetery where Kellam was a security guard.

Austin's attorney, Larry Nathans, has said in court papers that Austin is innocent. The lawyer will argue that Austin was convicted based on false testimony, flawed evidence, withheld police reports and the incompetence of his attorney at the time.

"There's absolutely no credible evidence linking him to the crime," Nathans said yesterday.

In convicting Austin, jurors considered pieces of evidence that have been proved to be flawed or called into question.

One piece had to do with a business card police said they found in Austin's wallet with Horrace Herbert's name scribbled on it. Prosecutors told jurors that Herbert was an accomplice in the robbery. After Austin's conviction in March 1975, prosecutors said Herbert had nothing to do with the crime and that the card had no relevance to Austin's case.

The second piece of evidence was testimony from a clerk at the store, Jackie Robinson, who detectives said identified Austin from photographs.

When Robinson was initially interviewed by detectives, he said the shooter was about 5 feet 8 inches tall, weighed 150 to 160 pounds and was a black man with a light complexion. At least four other witnesses, in police reports not turned over to defense attorneys before Austin's trial, gave similar descriptions.

Austin is 6 feet 5 inches tall and is black with a dark complexion.

On the witness stand, Robinson, presented to jurors as a diligent college student, changed his description and said he was certain Austin was the shooter.

In the years since Austin's conviction, Robinson's family has said he was not a college student, and that he was using and selling drugs at the time of the robbery and was in trouble with the law in the weeks before Austin's trial.

Robinson's brother, John Robinson, filed a statement with the court on Austin's behalf saying his brother confessed that he had helped convict an innocent man. Jackie Robinson died in 1996 of a drug overdose.

Austin's case has been taken up by Centurion Ministries, a New Jersey-based group that sifts through thousands of convictions of prisoners who say they were wrongly convicted. After investigating the cases, Centurion commits itself to about four a year.

Virtually everybody who had anything to do with Austin's case has spoken in his support.

Joseph Wase, the prosecutor in the case, filed an affidavit with the court saying that based on what he now knows about the business card and testimony, Austin should not have been prosecuted.

William A. Swisher, Baltimore's top prosecutor when Austin was convicted, said it appeared there were serious flaws in the case and that it should be reopened.

Robinson's siblings have said they want Austin, whom they do not know, freed because their brother stated clearly that he helped convict an innocent man.

A clerk in the store when it was robbed, Eric Komitzsky, said Austin should be freed. Komitzsky handed money to the shooter and said Austin was unquestionably the wrong man. Komitzsky did not testify at Austin's trial.

Alveria Kellam, widow of the victim, has said she wants to see Austin freed.

The city state's attorney, Patricia C. Jessamy, filed court papers arguing that Austin had exhausted his appeals and that the case should not be reopened. She did not address whether he was guilty.

The state's case is expected to be argued by one of her deputies, Sharon A. May. Both have declined to comment on the case.

"I'm not angry," said Austin, 52. "I've grown to be a very peaceful person. ... I want to leave knowing we did the best we could do to let the judge know a mistake has been made."

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