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Unger to get new trial for 1976 conviction in death of Hagerstown police officer

He gave up his right to a jury trial, his right to testify and his right to cross-examine witnesses

June 06, 2013|By DAVE McMILLION | davem@herald-mail.com
  • Merle W. Unger Jr. is show in this 1990 file photo.
File photo

Merle Unger will get a new trial for his 1976 felony murder conviction in the shooting death of a Hagerstown police officer, but only after agreeing to a number of conditions, including giving up his right to a jury trial.

Talbot County Circuit Judge Broughton M. Earnest will hear the case beginning Monday in Easton, Md., according to court records outlining the agreement.

Unger, who is serving a life sentence for the 1975 shooting death of  police Officer Donald Kline, also is giving up his right to cross-examine witnesses. Earnest will reconsider the case based on the transcript from the original trial, according to court documents.

Earnest, during a May 28 hearing in Talbot County Circuit Court, told Unger that “even though you are presumed innocent, that based on the fact that the evidence is going to be limited to evidence that was already heard before the jury, that there is a substantial likelihood no matter how objective I’m trying to be that you’re going to be found guilty again,” according to a transcript of the hearing.

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Daniel Ginsburg, Unger’s attorney, said during the May 28 hearing that Unger agreed to certain conditions in his new trial, because he is preserving his right to a direct appeal to Maryland’s Court of Special Appeals.

Under the stipulations, the state will waive its opportunity to seek more than a life sentence for Unger if he is convicted of felony murder. At the same time, Unger’s attorney will have a right to seek less than a life sentence if he is convicted.

“The state would be seeking a life sentence but is waiving any opportunity to seek in excess of a life sentence,” Washington County Deputy State’s Attorney Joseph Michael said at the hearing. “But it will be seeking a life sentence.”
 

Fatal shooting

Unger, now in his early 60s, was convicted of felony murder in the Dec. 13, 1975, shooting death of Kline, who was off duty when he came upon an armed robbery of a store on Mulberry Street in Hagerstown.

Kline pursued Unger into an alley, where there was an exchange of gunfire.

Kline was fatally wounded, and Unger was tracked to a house, where he was found on the basement floor, bleeding from a gunshot wound.

Unger appealed the case unsuccessfully until filing a post-conviction relief petition in 1996. Ten years after that petition was filed, a Washington County Circuit judge overturned Unger's conviction on the basis that the 1976 trial judge had issued improper “advisory” jury instructions.

Earnest ruled previously that statements Unger made to police almost four decades ago about the killing of Kline can be used in the new trial. But Earnest said the prosecution will not be allowed to introduce evidence of two escapes Unger made after the shooting because that could be prejudicial.

Unger escaped in 1976 before his trial and again from the Patuxent Institution in Jessup, Md., in 1981.

Trial agreement

Unger, his attorney and the Washington County State’s Attorney’s Office have entered into an agreement of how the new trial will proceed.

One benefit to Unger under the agreement is that a charge of use of a handgun during the commission of a felony will be placed on the “stet docket,” meaning it is being indefinitely postponed, the court  documents said.

The prosecution has agreed to not proceed on the handgun charge unless Unger files an appeal with the Court of Special Appeals, the state’s highest court, and is granted a new trial, the documents said.

Other stipulations Unger and the prosecution have agreed to include:

  • Any remarks made by Unger at his sentencing would not be used against him in a new trial as a result of an appeal to the Court of Special Appeals.
  • Unger gives up his right to testify.

The Cecil Whig this week quoted Lt. John Bollinger of the Talbot County Sheriff's Office as saying that because Unger has a history as a flight risk, additional deputies will be on hand at the circuit court for the duration of the trial.

Unger also will wear a “stun belt” around his waist that can be activated should he attempt to escape, the newspaper reported.

 

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