Maryland’s highest court ruled this week that Merle W. Unger Jr., convicted of the 1975 murder of Hagerstown police Officer Donald Kline, should get a new trial.
Unger, 62, is serving a life sentence for the Dec. 13, 1975, shooting of Kline, who was off-duty when he responded to a report of an armed robbery at a Hagerstown business. Kline died of wounds he suffered in a shootout with Unger.
The Maryland Court of Appeals on Thursday affirmed a 2007 judgment by Washington County Circuit Judge Donald E. Beachley vacating Unger’s 1976 conviction in Talbot County Circuit Court, according to the court decision.
“The Circuit Court concluded that, because of the jury instructions at Unger’s trial, he had been denied due process of law guaranteed by the Fourteenth Amendment,” the ruling said.
In Unger’s 1976 trial, the judge addressed the jury both when it was sworn in and at the conclusion of the presentation of evidence and testimony. In both instances, he told the jury that his instructions were “advisory,” and that the jury was not bound by them.
Unger’s attorney did not object to the instructions at the time, the ruling said.
However, the appeals court later decided in a separate case that a judge’s instructions on the law are binding.
“Under the trial judge’s instructions, the jury could place the burden of proof on the defendant, could utilize a different standard than reasonable doubt such as preponderance of evidence and could adopt a presumption of guilt,” the Unger ruling said.
A month after Beachley’s 2007 order, the prosecution filed an application for “leave to appeal” with the Maryland Court of Special Appeals.
In 2009, that court granted the state permission to appeal “and vacated the post-conviction trial court’s order granting a new trial,” the Maryland Court of Appeals said in its ruling.
“We’re still reviewing the decision,” David Paulson, a spokesman for the Maryland Attorney General’s Office, said Friday.
The attorney general had joined with the Washington County State’s Attorney’s Office in the petition to stop Unger from getting a new trial, court records said.
Because the issue at hand dealt with state and not federal law, “the decision is pretty much final,” Paulson said of the ruling.
Unger escaped from Patuxent Institution in Maryland in 1981 and was later recaptured in Florida. Unger has escaped from several jails and prisons during his criminal career.