Calling the murder conviction of an East Baltimore man "a terrible wrong," former Mayor Kurt L. Schmoke said yesterday that he would urge the state's attorney to help free him.
Attorneys for Michael Austin, whose conviction based on false testimony and flawed evidence was chronicled in Sunday's Sun, expect to file papers this week in Baltimore Circuit Court asking a judge to review his case.
Patricia C. Jessamy, the Baltimore City state's attorney, will decide whether to oppose the review, which could lead to Austin's freedom. He has served 26 years of a life sentence.
Schmoke, a former state and federal prosecutor, said he has worked behind the scenes to persuade Jessamy not to oppose the review but has received no assurances from her. He said in an interview yesterday that he decided to speak publicly because the more he examined the case, the more he believed Austin should never have been convicted.
"The first time I read the facts in this one, it was clear to me that some court ought to take another look at this," Schmoke said. "When I read it even more closely, I became convinced that a terrible wrong had been done to this man. This man did not commit that crime."
Austin, now 52, was convicted of killing Ray Kellam, a security guard shot during an April 1974 robbery of a Crown Food Market in East Baltimore.
A Princeton, N.J.-based group called Centurion Ministries believes Austin is innocent and is trying to free him. Centurion had approached Schmoke and The Sun to review Austin's case. Schmoke, aside from being a former prosecutor, is an influential political ally of the state's attorney.
His statements make him the latest in a list of people publicly backing Austin's freedom, including Kellam's widow, Alveria, and the man who prosecuted him, Joseph Wase, a retired assistant state's attorney.
A review of Austin's case shows that he was convicted based on a business card supposedly found in his wallet and the eyewitness testimony of a clerk in the store.
Jurors were told the business card had the name of Austin's accomplice written on it, but prosecutors - after Austin's conviction - admitted that the alleged accomplice had nothing to do with Kellam's death.
And the family of the eyewitness, a man named Jackie Robinson, has come forward to say he was not a civic-minded college student, as described by prosecutors. They said he was a drug dealer and user whose identification of the killer changed shortly after Robinson got into trouble with the law. And Robinson was not a college student but a high school dropout.
One of Robinson's brothers, John Robinson, told a private investigator that the witness confided to him several times that he had helped convict the wrong man.
Jackie Robinson, who died in 1997 of a heroin overdose, originally told police the killer was 5-foot-8 and about 140 pounds. Later, according to the lead detective in the case, Robinson said the killer was taller than 6 feet, and he picked Austin from a series of six police photos. Austin is 6-foot-5, 210 pounds.
Schmoke said the problems with the evidence provide enough reason for Jessamy not to oppose a reopening of Austin's case. If she does not, Austin could be freed from the Maryland House of Correction in Jessup in a matter of months.
"I feel very strongly [that] it's in the interest of justice to have a judge review this matter again and it would be in the interest of justice for the state's attorney not to object to a new review of the Austin matter," Schmoke said.
Larry A. Nathans, the Baltimore attorney hired by Centurion to represent Austin, said he plans to ask a judge this week to consider new evidence about the card and about the eyewitness.
Aside from problems with the business card and Robinson, prosecutors never gave Austin's defense attorney information that police had at least eight other suspects in the case or that four other witnesses described the gunman as 5-foot-8 to 5-foot-10.
Prosecutors are required by law to disclose such information. Wase has said that he does not recall police giving him information on other suspects.
He has also reviewed the case, and said in a recent interview that he should never have prosecuted Austin. Wase said he prosecuted Austin in good faith, but that the revelations about the eyewitness and the business card have convinced him that Austin should be freed.
Schmoke spent five years as the Baltimore state's attorney and another three years prosecuting cases as an assistant U.S. attorney. In 1984, when he was state's attorney, he was approached about a man who had been jailed for 10 years for an armed robbery. After reviewing the case, Schmoke successfully argued that the man, Leslie Vass, should be freed.
In the most recent case in Maryland of an innocent man freed after serving time, Anthony Gray Jr., was released in February 1999 after 7 1/2 years in prison for the killing of a Calvert County woman.
Schmoke said that he has met with Sharon A. H. May, Jessamy's deputy, to discuss the case with her. He has met briefly with Jessamy, he said.
Both prosecutors said that they would wait until court papers are filed before deciding what to do with the case, according to Schmoke. Once the court papers are filed, he will again urge them not to oppose Austin's lawyer, he said. May was out of the office yesterday and could not be reached for comment. Jessamy did not return a telephone message.
William A. Swisher, the state's attorney for Baltimore City when Austin was convicted, did not return a telephone call seeking comment.