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Prosecutor says passage of time won't hinder case

March 22, 2007|by ERIN JULIUS

HAGERSTOWN - The passage of more than 30 years won't make a difference in how well the state can prosecute Merle W. Unger Jr. for the Dec. 13, 1975, murder of Hagerstown Police Officer Donald Kline, a state's attorney said Wednesday.

Transcripts of previous testimony can be used if witnesses are no longer available or cannot recall events that happened in 1975, Deputy State's Attorney Joseph Michael said.

The state's attorney's office and Maryland Attorney General's Office will appeal in the Special Court of Appeals the ruling made Friday by Washington County Circuit Judge Donald E. Beachley that Unger is entitled to a new trial, Michael said Tuesday.

Beachley based his decision on previous cases, according to his order.

A woman who answered the phone at the home of Kline's widow said the family wasn't prepared to discuss the ruling.

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Unger, 57, is serving life plus 40 years and remains in prison while the case is appealed. 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.

"I'm disappointed in the outcome. I understand the outcome and the court relied on (another case ruling) but I disagree with it," Michael said.

The Maryland Court of Special Appeals granted Raymond Leon Adams a new trial in December 2006, 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.

The special appeals court declared Article 23 of the Maryland Declaration of Rights unconstitutional in the Adams case, Beachley said in his order. Article 23 states, "In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction."

That article opened the possibility to a jury making its own standard instead of applying the standard of reasonable doubt, Michael said.

Similar orders were given in Unger's case, according to portions of transcripts from Unger's trial that Beachley included in his order.

"It's an error in the due process of law that got him a new trial," said Ralph B. Ryland, Sr., a retired detective sergeant who worked with Kline.

Ryland processed the crime scene the night Kline was shot. He was a witness during Unger's trial and attended the December 2006 hearing. He has followed the case through the decades, including several escapes made by Unger.

By August 1975, several months before Kline's murder, Unger was already known as a "hard to hold" inmate in the Chambersburg, Pa., area. He was on the lam from the Cumberland County jail when he killed Kline, according to The Herald-Mail archives.

Unger escaped from a Washington County jail May 14, 1976, just days before his trial was scheduled to begin, and he was apprehended in Florida. He was convicted of felony murder - Kline's death occurred during the commission of a robbery - in the Circuit Court for Talbot County on Nov. 24, 1976.

Years later, he commandeered a dump truck and escaped from the Maryland Division of Correction's Patuxent Institution and was again caught in Florida. In 1990, Unger used wire cutters to cut his way out of a Florida prison and was apprehended in Strasburg, Va.

Other escapes and attempted escapes are documented in court records.

"There was no doubt in my mind he was guilty," said Ryland, who was disappointed by the recent ruling. "But whether or not I like it, everybody has a right to due process of law."

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