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Unger could get new trial in 1975 slaying of officer

December 09, 2006|by PEPPER BALLARD

HAGERSTOWN - A man convicted of killing a Hagerstown police officer more than 30 years ago might get a new trial based on a recent Maryland Court of Special Appeals opinion.

Washington County Circuit Judge Donald E. Beachley held off on ruling Friday whether to grant Merle W. Unger Jr. a new trial, allowing attorneys more time to file paperwork supporting arguments they made in Unger's post-conviction hearing Friday.

Unger, 57, is serving life plus 40 years for the Dec. 13, 1975, murder of Hagerstown Police Department Officer Donald Kline. In June, Unger filed an amended petition seeking post-conviction relief, alleging ineffective counsel and judicial error among other complaints about his 1976 trial and subsequent appeal.

On Tuesday, the Maryland Court of Special Appeals granted Raymond Leon Adams a new trial, ruling that in his rape case, the trial judge should have instructed the jury that the law is binding. The judge's statements calling his instructions advisory infringed upon Adams' due process rights, the appellate court held.

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Beachley said at the end of the Friday hearing, "I think, preliminarily, Adams does have some application" in Unger's case.

Unger's attorney, Fred Warren Bennett, argued that Talbot County Circuit Judge Harry Clark's 1976 jury instructions were similar to instructions given in Adams' 1979 trial. He said jurors in Unger's case were told Clark's instructions were advisory, not only about the facts of the case, but about the law applied to it.

"It requires a new trial because it's in the category of no reasonable doubt instruction or a poor reasonable doubt instruction," Bennett said.

Washington County Deputy State's Attorney Joseph Michael argued that Clark's instructions followed a pattern consistent with other trial judges of that era.

"There is no reasonable likelihood that the jury in the Unger case could have mistook the reasonable doubt jury instruction," he said.

He also said the evidence in the case was "overwhelming," an argument Bennett said "cannot save the day" in light of the appellate court's ruling.

Kline was killed as the result of a gun battle with Unger, who had just robbed Kim's Korner on South Mulberry Street. Kline, who was off duty, intercepted Unger and chased him into a nearby alley, where the gun battle ensued. Unger hid - wounded - in the basement of a nearby home after the shooting.

Unger, who has a lengthy criminal record, including several escapes, was heavily guarded Friday and remained in waist shackles throughout the entire hearing. Members of his family, Kline's family and several retired and current Hagerstown Police Department officers attended the hearing.

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