An attorney for convicted heroin dealer Jason Austin, shown here in 2008, says witnesses against him committed perjury.
  • Brian Jackson/Sun-Times Media
  • An attorney for convicted heroin dealer Jason Austin, shown here in 2008, says witnesses against him committed perjury.

Who told the truth, and who didn’t?

A former street dealer, an FBI agent, and several police officers testified in federal court last year that they’d learned Jason Austin murdered two people in 2008 to protect his west-side drug operation, which sold more than ten kilos of heroin and reaped thousands of dollars a day.

By the end of the sentencing hearing, federal judge Joan Lefkow—known as one of the fairest jurists in the northern Illinois district—said she had little choice but to give Austin a 35-year prison term. “Your drug trafficking has been a scourge on your community,” she said. “You destroyed two innocent lives.”

But Austin was never actually found guilty of committing the murders or of dealing that much heroin. Now, through his attorney, he’s appealing his sentence, arguing that it’s based on allegations too riddled with inconsistencies to be considered “credible” and used against him.

The central problem is that either police or the key witness in the case—or both—committed perjury, attorney Richard Kling argues in a brief filed last week.

“In the case before this Court, reliable evidence did not exist,” Kling writes.

The appeal could open another chapter in a seven-year-old saga that illustrates how complicated the search for truth can be in the criminal justice system. Kling, who’s worked on hundreds of murder and drug-related cases, says, “I’ve never had one like it before.”

To be clear, no one is claiming Austin should walk free, or that he’s a sympathetic figure. By all accounts, J-Rock, as he was known, was a gang leader and drug dealer for years before being found guilty in 2012 of conspiring to deal heroin. Kling isn’t challenging that conviction—only the sentence for it. In doing so, he also raises questions about the double murder case.

Federal prosecutors have a month to file a formal response, but they initially argued that the evidence shows Austin deserved life in prison.

U.S. attorney Zachary Fardon called the 35-year sentence “a modest measure of justice” for the families of police detective Robert Soto and social worker Kathryn Romberg, who were shot while sitting in an SUV in West Humboldt Park on August 13, 2008. “We are gratified that the court found Austin responsible,” Fardon said.

Austin was the leading suspect in the murders from early on. After being interrogated repeatedly, Jeffrey and Terrance Scott, two brothers who worked in Austin’s drug organization, said that Terrance and another friend were in the car when Austin pulled up next to Soto’s SUV and fired the fatal shots. The Scotts told police it was a case of mistaken identity: Austin was trying to take care of a rival who’d been dealing on his turf.

Police and prosecutors charged Austin with the homicides, only to see the case unravel. The Scotts and other witnesses changed their stories, accusing the police of roughing them up until they’d named Austin the killer.

As Austin went back to his narcotics business at Kedzie and Ohio, the police kept him in their sights. They brought in reinforcements from the FBI, and after wiretapping phones and making a series of undercover buys, authorities in 2010 hauled in Austin, the Scott brothers, and more than two dozen others on drug conspiracy charges. Eventually nearly 100 defendants were indicted as a result of the investigation.

In federal custody, the Scott brothers changed their stories back again and identified Austin as the killer. They said they’d recanted earlier after being threatened—on one occasion, Austin’s brother had a gun in his lap as he drove Terrance Scott around the neighborhood and told him to “stay tall.”

Austin was convicted in 2012 of distributing less than 100 grams of heroin. But his sentencing last year focused almost exclusively on the murders, which prosecutors wanted to pin on him as a way of ensuring a lengthy prison term.

In trials, defendants must be proven guilty beyond a reasonable doubt. But in sentencing hearings, prosecutors only need to show that most of the evidence—a “preponderance”—backs up their allegations. So once Austin had been convicted on the drug charge, prosecutors could introduce testimony that characterized him as a murderer even if it would have been considered inadmissible hearsay in a trial.

After hearing a week of testimony, Lefkow concluded that Austin was “very likely” responsible for killing Soto and Romberg. She also stressed that, by her own “conservative” estimate, he had moved far more heroin than the amount he was convicted of. (You can read about the sentencing hearings here, here, here, here, and here.)

Yet in his appeal brief, Kling argues that the evidence before the judge was too shaky to be used against Austin, even under the lower standard for a sentencing.

He highlights a number of questions about the murder investigation. Some witnesses said Austin was driving a green van the night of the murders, not a maroon Buick. Surveillance cameras taped several cars driving through the area, but none took the route Austin allegedly drove after the murders. The Scotts said Austin committed the murders while trying to kill a rival—though before he died, Soto told police he was shot during a robbery.

Lefkow acknowledged these issues but called them “relatively minor inconsistencies.” Kling wants the appellate court to reconsider. And he maintains that the heart of the sentencing evidence—the testimony of Jeffrey Scott—may be the most problematic of all.

In the sentencing hearing, Scott stood by his 2008 allegations that detectives hit him, kicked him, and handcuffed him facedown on a bench during the murder investigation, though he added that in retrospect, “it wasn’t that harsh.”

But the police he accused of roughing him up testified that Scott was never mistreated. They said he “voluntarily” submitted to more than a dozen interviews in a locked cell in the days after the murder.

Both claims can’t be true, Kling says—either the police or Scott committed perjury. And it’s documented that Scott changed his accounts multiple times, casting doubt on his claims about both the murders and Austin’s drug business.

“Jeffrey Scott is a proven opportunist with an obvious incentive to minimize his role,” Kling argues.

Of course, the feds and Scott himself have given a different account. They say he ultimately decided he wanted to come clean and tell the truth, even though there was a price on his head.

“I’m sorry I didn’t come forward immediately,” Scott said at his own sentencing in February.

In return for his cooperation, Lefkow gave him five and a half years in prison. He could have been looking at more than 20 years.