Austin might face struggle for redress

Wrongly imprisoned rarely compensated, even in glaring cases

January 08, 2002|By Todd Richissin | Todd Richissin,SUN STAFF

After spending 27 years behind bars for a faulty murder conviction, Michael Austin likely will find it tough to recover any money for the mistakes of police, prosecutors and the judge in the case.

Rarely do freed prisoners in Maryland - or anywhere, for that matter - receive compensation for being locked away. That is true even in cases like Austin's, where, according to the judge who ordered him released last month, virtually everybody involved in his trial made serious errors that led to his conviction.

In an order that reversed Austin's 1975 conviction in the killing of an East Baltimore security guard, Judge John Carroll Byrnes of the Baltimore City Circuit Court said Austin's defense attorney was incompetent, the prosecutor in his case erred seriously and the judge issued faulty juror instructions.

With such findings, a bit of cash doesn't seem like much to ask for 27 lost years, said James McCloskey, president of Centurion Ministries, the New Jersey-based group that worked to free Austin.

"On the surface, you'd think getting some kind of compensation would be a slam-dunk, but that's not the way it works," McCloskey said. "In fact, it's almost never the way it works."

The most obvious target for Austin to look to for compensation would be his defense lawyer at trial, James MacAllister.

Byrnes criticized him for being unprepared to defend Austin. The attorney did not know until the morning of trial that the case was to begin, and he failed to subpoena witnesses or a timecard from Austin's employer, which would have shown that he worked the day of the killing.

Successfully suing a defense attorney in a malpractice case is difficult, though, and in this case, it would be nearly impossible: MacAllister is dead. (There is a slight chance, legal experts say, that Austin could sue seeking malpractice insurance that MacAllister carried.)

McCloskey's group has freed 26 people around the country, in some cases by proving their innocence and in others - as in Austin's case - by showing that the trial was flawed and that there was no real evidence against the accused. Those cases in which a person is proved innocent - by DNA testing, for example - carry more weight, but all who are wrongly convicted have the potential to be compensated.

That's in theory. In reality, winning compensation is difficult in either category. Of the 26 people freed by Centurion, only seven have been compensated for the years they spent locked up.

In one case, Elmer "Geronimo" Pratt, jailed for 27 years on a murder charge before being freed, was paid $4 million, the bill split evenly between the U.S. Department of Justice and the city of Los Angeles.

Pratt took the federal route, filing a civil rights lawsuit against the city and the Justice Department, using evidence that the city police conspired with the FBI to frame him. The parties settled out of court.

But civil rights cases can be exceptionally difficult to win, especially 27 years after a trial. For every case like Pratt's, there are more like that of Clarence Brandley. He sat on death row in Texas for 10 years and never received compensation. A judge later dismissed his civil rights lawsuit.

George Parry, a civil rights attorney in Philadelphia and a former state and federal prosecutor, said laws protecting government officials are formidable obstacles in such cases.

"He's got some real problems in seeking any kind of recovery," Parry said of Austin. "That doesn't mean it can't be done, but it will be very, very difficult."

The targets for Austin to go after are few, Parry said, because state and federal prosecutors have almost full immunity, and police have qualified immunity, so suing them successfully would mean proving the most egregious of offenses, such as planting evidence.

Byrnes made no allusion to such malice on anybody's part, nor did Austin's attorneys. The judge found serious problems with the trial and indicated that he could not detect any real evidence against Austin. Byrnes stopped short of proclaiming Austin innocent, though he indicated Austin's attorneys had made a strong case for such a finding.

"Still, he's got about the same chance of getting money as I have of getting hit by a meteorite when I leave my building," said William Gately, a Towson attorney who has sued the government in numerous cases. "The deck is completely stacked against him."

Austin could turn to the state for compensation, Gately said, but he shouldn't count on success.

In one scenario, he could appeal to the conscience of legislators, asking them to pass a bill compensating him for his years in prison. His other option would be to try to breathe life into a seldom-used provision in Maryland law.

Under that scenario, Austin would first need a full pardon from the governor, which is necessary even though the conviction has been tossed out. If that's granted, he could appeal to the Board of Public Works for a payment based on wages lost during the years he was in prison.

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