An attorney for Michael Austin convinced a judge yesterday that enough questions about his murder conviction are unresolved that a thorough review of old evidence and new should determine whether he was wrongly convicted.
"I think it's safe to say there is enough information presented to the court to warrant continued judicial attention," Judge John Carroll Byrnes said during a hearing in Baltimore City Circuit Court. "I intend to give it just that."
Austin, who was led into the courtroom with hands cuffed behind his back, was convicted of felony murder in 1975 and is serving a life term at the Maryland House of Correction. Yesterday's hearing was an attempt to reopen the case by his attorney, Larry Nathans, based on mistakes during the trial and new information that he argues supports Austin's innocence.
The judge gave Nathans and Deputy State's Attorney Sharon A. May until July 9 to provide him with more information to consider before he reaches a decision.
Byrnes said he might hold another hearing to give witnesses for Austin an opportunity to testify. They include Joseph Wase, who prosecuted Austin and now contends he is innocent, and siblings of a witness to the killing, who say he told them before his death that Austin was innocent.
The judge said during the hearing that the claims of Austin's innocence appear credible to him - which does not necessarily mean they are true - and the state prosecutor agreed.
"This case is much more credible than the type you usually see," May said. Nevertheless, she said, the law did not permit the judge to reopen the case to review its issues and consider new evidence.
Byrnes said his authority to reopen the case is unclear. Nathans argued that state law grants the judge that authority, as does precedent from the U.S. Supreme Court.
The prosecutor argued that Austin has exhausted his appeals, he is guilty and should remain in prison.
"If I didn't believe that, I wouldn't be here," May said after the hearing. "Mr. Austin has had in the neighborhood of 12 or 13 previous proceedings or pleadings, including three post-conviction hearings.
"In each instance he has raised issues that are pretty much in his current petition. There are some new ones added here, but a lot have already been dealt with."
Nathans has argued that there is abundant new evidence to warrant overturning Austin's conviction.
Chief among that information are the sworn statements from the family of Jackie Robinson, the witness, who they say was a drug dealer in trouble with the law before his testimony at Austin's trial.
Jackie Robinson died in 1996 of a drug overdose.
"I think if my brother was here, he'd want Michael Austin free," John Robinson said outside the courtroom. "It's like I can hear him from the grave saying, `I know I did wrong, John, please make it right for me.'"
Austin was convicted of the 1974 killing of Roy Kellam, a husband and father of two who was moonlighting as a security guard, during a robbery at a Crowns Food Market near Green Mount Cemetery.
Aside from the testimony at trial from Jackie Robinson, the only other evidence used to convict Austin was a business card with the name Horrace Herbert written on it. Herbert, jurors had been told, was Austin's accomplice.
In the only testimony from a witness in yesterday's hearing, David Katz, a former Baltimore prosecutor, said Herbert had nothing to do with the crime. Katz said he had begun a trial in 1976 to prosecute Herbert as Austin's accomplice but that the only witness in the case - again, Jackie Robinson - was adamant that Herbert was not involved in the shooting.
Austin's attorney told the judge in court papers that the business card used in the first trial was thus irrelevant, leaving the discredited testimony from Robinson as the only evidence.
Austin's case has been taken up by Centurion Ministries, of Princeton, N.J., which seeks to free inmates it believes are not guilty.
The group's president, James McCloskey, said after the hearing that he was encouraged that the judge's comments and questions indicated he was exceptionally familiar with the case.
Sun staff writer John Woestendiek contributed to this article.
