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Michael Austin

Other Maryland Exonerations
On April 29, 1974, two men entered the Crown Food Market at 1201 East Preston Street in Baltimore, Maryland where 52-year-old Roy Kellam worked as a security guard. One of the men fired a .32-caliber Smith & Wesson revolver, striking Kellam in the heart, killing him. The two men then fled with $3,957 taken from two cash registers.

Twenty-two-year-old Eric Komitzsky told police that when he was too slow in opening a cash register, one of the men slugged him in the head with a pistol.

Komitzsky and another employee, 23-year-old Jackie Robinson, gave nearly identical descriptions of the gunman to the police, stating that he was a light-skinned Black man about 5’ 8” to 5’ 10” tall, with a skinny build.

A month later, police released a composite sketch of the gunman. Shortly after its release, police received a tip identifying 25-year-old Michael Austin, a heavy-set 6’ 5” dark-skinned Black man, and Horace Herbert as the robbers.

Komitzsky and Robinson were shown photographic and live lineups. After viewing the photographic lineup, Komitzsky said that Austin looked like the gunman, but he could not be sure. Robinson identified Austin as the shooter and Herbert as the accomplice. The police did not disclose Komitzsky’s failure to identify Austin. Austin’s defense lawyer never called him to testify at trial.

On June 3rd, 1974, Austin was arrested and charged with first-degree murder, grand larceny, and a handgun violation. An arrest warrant was issued for Herbert, who was a fugitive.

Austin had a prior conviction for burglary. On August 28, 1974, while free on bond, Austin was charged with murder in the death of his girlfriend’s toddler, a charge that both he and his girlfriend vehemently denied. Austin claimed that he was at work at a foundry and left work about the same time Kellam was killed.

On March 24, 1975, Austin went to trial in Baltimore City Circuit Court. The prosecution’s case rested primarily on the testimony of Robinson, who testified that he was positive Austin was the gunman. The prosecution portrayed Robinson as an “honest, fine young man attending college.”

Austin’s attorney, James McAllister, presented a photocopy of Austin’s timecard which showed he punched out sometime after 5 p.m.—less than 30 minutes before, and six miles from the shooting.

Austin testified and denied committing the crime. He testified that his girlfriend tried to get Austin’s original timecard as well as timecards of co-workers that day to be able to identify alibi witnesses, but company officials rebuffed her.

During cross-examination, the prosecution asked Austin about Herbert, who by this time had been arrested. Austin denied knowing him. The trial recessed for lunch, and when the trial resumed, the prosecution called a detective to the stand. The detective produced a business card with Herbert’s name on it and claimed that he found it when he had gone back through Austin’s personal items that had been confiscated from him at the time of his arrest.

McAllister objected to this disclosure. Ultimately, the trial judge ordered the detective’s testimony stricken, and the jury was instructed to disregard it. The judge said there could be no references to Herbert.

The defense did call two co-workers, Curtis McTeer and George Chamberlin, who testified about the clothing they wore at work, the process of removing this clothing, punching out, and showering at the end of the work day—which would have left no time for Austin to leave and commit the crime. However, they could not recall whether Austin worked on the day of the crime.

Ellen Walker, Austin’s girlfriend, testified that she attempted to retrieve Austin's timecard from April 29, 1974, but company officials would only provide her with a photocopy.

During his closing argument, the prosecutor, Joseph Wase, disregarded the prohibition about referring to the business card. He told the jury, “But on top of all of that, the one thing that really proves the State’s case beyond any doubt in my mind—I think in any reasonable mind—is this card.”

McAllister objected, but the judge erroneously said the card was in evidence. “This card that Michael Austin had in his pocket when he’s arrested,” Wase continued. “Now he testified from the witness stand that he never heard of the other person described by Jackie Robinson, who you heard is Horace Herbert.”

On March 27, 1975, the jury convicted Austin of first-degree murder, robbery, and illegal use of a firearm. He was sentenced to life in prison. The prosecution then dismissed the murder charge against Austin involving the death of his girlfriend’s child.

On June 29, 1975, Herbert went on trial. When Robinson was called to testify, he said he did not see the person who accompanied Austin. During a recess, Robinson said that despite his earlier identification of Herbert, the person sitting in the courtroom was not involved in the crime. When the trial resumed, the prosecutor, David Katz, told the trial court that the State moved to enter a verdict of not guilty. Unfortunately for Austin, the docket did not reflect the reason for Herbert’s acquittal, so Robinson’s disavowal of Herbert’s involvement went undisclosed.

Over the next 25 years, Austin filed numerous petitions for post-conviction relief raising various issues, including that McAllister had provided an inadequate legal defense by failing to identify and call more alibi witnesses and failing to interview Komitzsky prior to the trial. At a 1992 hearing, Komitzsky was in court when Austin was brought in from the lockup. Upon seeing Austin, Komitzsky declared that Austin was not the gunman. Subsequently, Komitzsky revealed that he did not identify Austin right after the crime because Austin was a foot taller than the gunman. However, Austin’s efforts were unsuccessful.

In March 2001, Larry Nathans and Boothe Ripke, attorneys working with Centurion Ministries, a non-profit organization dedicated to overturning wrongful convictions, filed a motion to reopen Austin’s post-conviction proceedings. The motion revealed that the prosecution had concealed that Robinson was a drug dealer who hadn’t finished high school. And although he was listed as being enrolled at Virginia College in Lynchburg, Virginia, in fact he was on academic probation. Additionally, he was listed as a student there during a time when the college president and the college’s financial aid officer were falsely inflating attendance records to reap more student financial aid. The president and financial officer subsequently pled guilty to federal charges for their conduct. Moreover, Robinson, who was a heroin dealer, had died of a drug overdose in June 1997.

The motion noted that Robinson’s brother, Harry Robinson, had come forward to say that Jackie had confessed to him that he had helped convict the wrong man. Robinson’s residence had been raided by police, and an ounce of marijuana had been recovered. He had been quickly released, and his family believed he had been pressured by authorities to cooperate in Austin’s trial.

Baltimore City’s state attorney, Patricia Jessamy, opposed reopening the case, claiming that there were no legal errors during the trial.

Baltimore City Circuit Judge John Carroll Byrnes ordered a hearing. Support for Austin grew. Alveria Kellam, Kellam’s widow, called for his release. Komitzsky testified during the hearing that Austin was not the gunman. He said Austin was too big and too dark-skinned to have been the gunman. Wase, the trial prosecutor, filed an affidavit in support of Austin, saying that given the new evidence that had emerged, he believed that Austin was innocent.

On December 19, 2001, Judge Byrnes vacated Austin’s convictions and granted him a new trial. On December 28, 2001, Austin was released from prison. On January 3, 2002, the prosecution dismissed the case.

On November 14, 2003, Maryland Governor Robert L. Ehrlich pardoned Austin, clearing the way for Austin to receive state compensation. His first compensation award, on November 17, 2004, was for $1.4 million. On July 21, 2021, Austin filed for supplemental compensation and was awarded $922,693 and other benefits, including health care for five years.

– Maurice Possley and Talia Walsh

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Posting Date:  Before June 2012
Last Updated: 7/31/2023
County:Baltimore City
Most Serious Crime:Murder
Additional Convictions:Robbery, Illegal Use of a Weapon
Reported Crime Date:1974
Age at the date of reported crime:25
Contributing Factors:Perjury or False Accusation, Official Misconduct, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No