Md. officials faced with setting value of freedom

Ehrlich pardons man wrongly held for 27 years

November 01, 2003|By Dan Fesperman and David Nitkin | Dan Fesperman and David Nitkin,SUN STAFF

Michael Austin, freed and ultimately vindicated after 27 years' imprisonment on a faulty murder conviction, took a giant step toward financial compensation yesterday with a pardon from Gov. Robert L. Ehrlich Jr. It will now be up to the state's Board of Public Works to set a price on Austin's lost freedom, although in the last such case the board paid $45,000 for each year of incarceration.

Ehrlich personally relayed the news to Austin with a 9:30 a.m. phone call to the downtown Baltimore office of lawyer Larry Nathans, who led the legal fight that resulted in Austin's release nearly two years ago.

Austin paraphrased the governor's call: "He said, `On behalf of the State of Maryland I want to apologize to you for the ordeal you went through.' ... He was very cordial and very polite, and very sincere about his apology."

"For me," Ehrlich said later, "it was a more difficult conversation than it was for him. He was terrific. I made the point that I have reviewed his record in the case, I read the affidavits. I undertook a thorough review of the file, as did our legal counsel's office. It was a very easy decision to make."

"Basically," Austin said, "he just told me to keep doing what I've been doing," a reference to Austin's frequent speaking appearances since his release, mostly before school groups, including his most recent trip last month to the Vermont Academy.

"I encouraged him to increase his exposure, increase his visits to schools," Ehrlich said, "particularly schools with a lot of kids at the margin who have decisions to make on a nightly basis, right or wrong, and they may not be getting the guidance from whomever when they make those decisions."

Austin, 55, knows firsthand of such struggles. In his words, he was "no choirboy" when, at age 25, he was charged with the 1974 murder of security guard Roy Kellam at a Northeast Baltimore grocery store. His arrest record already included convictions for robbery and burglary.

But eyewitnesses described the killer as a light-skinned black man about 5-feet-8. The dark-skinned Austin is 6-feet-5 and was at work the day of the crime, verified by his time card. A calamitous combination of mistaken identification, misused evidence and poor legal representation led to his conviction; it took 20 years for anyone to heed his cries of injustice.

That happened in 1994, when Austin wrote a letter from prison to Centurion Ministries, a Princeton, N.J., group that takes up the cause of inmates it believes are innocent. Centurion hired a private investigator, whose findings prompted a lengthy examination of the case by The Sun in March 2001.

The renewed scrutiny culminated nine months later in the reversal of Austin's conviction by Baltimore Circuit Judge John Carroll Byrnes. The following week Baltimore State's Attorney Patricia C. Jessamy decided not to seek a new trial, meaning Austin was at last a free man.

His future was far from secure. Besides the re-entry anxieties and adjustments facing any released inmate, Austin entered a tough job market. Earlier this year, his speaking appearances were part of his employment with the city's Community Conference Center. He also played in his own jazz band, Michael Austin and True Spirit, which performs Saturday nights at Blues Bistro in Eldersburg.

But jazz gigs don't pay top dollar, the money for his city job ran out in June, and any possibility for financial compensation from the state required a gubernatorial pardon. So, on July 1, Nathans petitioned Ehrlich.

The petition's 32 pages and its many affidavits exhaustively detail the case for Austin's innocence, but its single most devastating line might well be one from the prosecutor who put Austin away.

Former Assistant State's Attorney Joseph J. Wase wrote, "I did not intend to ever prosecute an innocent man, as I now realize I did."

Nathans will now ask the Board of Public Works for compensation, and, as one of the Board's three members, Ehrlich will have plenty of say about how much money, if any, Austin receives.

"Let me give you a general answer, and the answer is yes," Ehrlich said yesterday about the matter. "Then, of course, your question is how much. What's a year worth? What's six months worth? What is 27 years worth?"

States, cities and even the federal government have varied widely in their answers. In the recent case of Elmer "Geronimo" Pratt, also freed after 27 years' imprisonment on a false murder conviction, the city of Los Angeles and the U.S. Department of Justice split the bill on a payment of $4 million.

Maryland's compensation payments have been far more modest, partly because they've often been based on the concept of wages lost during incarceration. Nonetheless, they've been steadily increasing in value.

In 1984 the board authorized a $250,000 payment to Leslie A. Vass, released after serving 10 years for a robbery that prosecutors said he didn't commit. Ten years later, Kirk N. Bloodsworth got $300,000 after serving nine years before his exoneration by DNA evidence. Earlier this year, Bernard Webster got $900,000 after serving 20 years for a rape he didn't commit. The same annual rate in Austin's case would yield about $1.2 million.

"It's very hard to quantify that particular calculation," Ehrlich said yesterday, while wrestling with the concept of an annual rate for a man's freedom. "We will discuss the petition and its merits."

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