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Austin's lawyer accuses prosecutors of trying to block review of murder case


A lawyer for Michael Austin argued yesterday that his client is innocent and chastised Baltimore prosecutors for using "misleading and erroneous arguments" to persuade a judge not to review his case.

In court papers that went beyond legal arguments, the attorney questioned whether prosecutors were opposing a judge's review of the case because they are trying to preserve a courtroom victory or because they believe Austin is guilty.

"Instead of acknowledging that mistakes were made and placing faith in our system of justice to remedy past wrongs, the state struggles in vain to circle the wagons," according to papers filed in Baltimore Circuit Court by Austin's lawyer, Larry Nathans. Prosecutors, he said, have never affirmed their belief in Austin's guilt.

State's Attorney Patricia C. Jessamy has opposed Austin's release and has argued that a judge should not review whether the case against Austin was flawed. She has refused to comment on her decision.

Judge John Carroll Byrnes will consider reopening Austin's case at a hearing scheduled for June 20.

Austin has served 26 years of a life sentence at Maryland House of Correction in Jessup for the murder of Roy Kellam on April 29, 1974. Kellam was moonlighting as a security guard at a Crown Food Market near Greenmount Cemetery when he was shot during a robbery.

Centurion Ministries, a New Jersey-based group that represents a handful of prisoners nationwide it believes are innocent, has been working to free Austin.

He was convicted on the eyewitness account of a clerk and the presence of a business card found in his wallet. Centurion has since found evidence that the clerk was a drug user and dealer who had a motive to lie at trial. The business card, Centurion has said -- and prosecutors now agree -- in no way linked Austin to the crime.

Nathans, who was hired by Centurion, filed his court papers yesterday in response to earlier arguments by prosecutors that Austin has exhausted his appeals.

Nathans said prosecutors contended that court documents now being used in Austin's appeals were available in previous appeals. But Nathans said those documents had been stored away and not even prosecutors had access to them.

Nathans maintains the evidence uncovered by Centurion warrants a new trial for Austin. He also argues that the fight for Austin's freedom is based not on legal technicalities but on facts that show he did not commit the crime.

"Unfortunately, in the process of misunderstanding the nature of Mr. Austin's entire actual innocence argument, the state erroneously hoists upon this court an off-the-cuff legal standard, which was created by their pen alone, and is without foundation in any courtroom or law book nationwide," Nathans argued.

Court papers filed last month by Jessamy's office that argued against a judge's review of the case were filled with rhetoric and not law, according to Nathans. He argued that Jessamy's office distorted Austin's arguments rather than addressing them on their merits.

"The state attempts to persuade this court not to hear it by mis- characterizing Mr. Austin's arguments and taking quotes out of context," Nathans said in the court papers. "The state's response is misleading and erroneous."

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