DENVER (CBS4) – After nearly three years in county jail, all charges – including murder counts – have been dropped against Kendall Adam Austin, 28, of Denver, one of four defendants jailed in the killing of Andrew Graham, 23, who was gunned down in 2009 as he walked home in Arapahoe County. Austin had been jailed since January of 2017 but CBS4 learned Austin was suddenly released last Wednesday, Oct. 2, after Arapahoe County prosecutors filed a motion asking the case be dismissed, due to the lack of forensic evidence and witness statements that could not corroborate his involvement in the murder.
“We no longer have a reasonable likelihood of success at trial and must therefore dismiss this case,” prosecutors wrote to the judge.
“I knew this would happen,” Austin told his attorney. “I knew they would see the truth eventually. I just had to keep the faith.”
Andrew Graham was shot and killed late on the night of Nov. 5, 2009, as he was returning to his home in Centennial from an RTD light rail station. His body was found the next morning. He had been house hunting in Boulder where he was a graduate student at the University of Colorado. Investigators believe Graham, who was shot in the back, was a robbery target.
Investigators zeroed in on five suspects who they believed were involved in Graham’s death: Kendall Adam Austin, Allen Deshawn Ford, Clarissa Jae Lockhart, Joseph Martin, and Terrell Jones.
The case was investigated for years before a grand jury indicted Austin, Ford, Lockhart and Martin in 2016, seven years after the murder. The four were then arrested and jailed in January of 2017. Although police believe Terrell Jones was the actual shooter, he has never been arrested or charged in the case.
The four others were indicted on felony murder, conspiracy and racketeering charges as prosecutors theorized they were present for the robbery and shooting. Joseph Martin agreed to a plea bargain in the case in 2018 and was sentenced to 10 years in prison.
The remaining three suspects – Austin, Lockhart and Ford – were headed to trial this year when prosecutors abruptly dropped all charges Wednesday, Oct. 2, against Austin.
In a motion to dismiss all counts against Austin, Arapahoe County District Attorney George Brauchler wrote, “Mr. Austin was not implicated in the case until a 2015 statement by a cooperating witness, and his co-defendants, while implicating themselves, do not also implicate Mr. Austin. There is also a general lack of forensic evidence related to Mr. Austin. While Mr. Austin’s own words indicate he was, at a minimum, a witness to the homicide, his statements do not go as far as his codefendants’ statements in admitting culpability in the felony murder. Our evaluation of the current state of the evidence in this case now leads us to the difficult decision that we no longer have a reasonable likelihood of success at trial and must therefore dismiss this case.”
Vikki Migoya, a spokesperson for the 18th Judicial District, said the office could not comment on the Austin case since it has been legally “suppressed” and little information is available to the public. The remaining two defendants – Lockhart and Ford – are both scheduled to stand trial this year.
Contacted by CBS4, Austin’s lawyer, David Fisher, told CBS4, “I am thrilled we were able to get his case dismissed before more harm was done. That being said, I am saddened for Kendall (Austin) and his family. Kendall was locked up in jail for almost three years while he was facing these false charges.”
Fisher said that Austin had offered a half-hearted confession to being present at the Graham murder but the attorney said the confession came under intense pressure from police investigators.
Fisher recounted the moment when he told Austin the case against him was being dropped.
“Kendall cried and pounded his fists in the air,” Fisher said.
His attorney also said Austin immediately thought of his daughter.
“She started asking her mother, ‘is daddy really ever coming home?’ Kendall held up a copy of the motion to dismiss in his hands and said, ‘now I can go back home and hug her, and tuck her in at night, and tell her everything will be okay,’” Fisher said.
Austin declined to speak to CBS4 about the dramatic turn in his case. His attorney said Austin is hoping to get his old job back, as a cook in a Denver restaurant.
Colorado Bureau of Investigation records show Austin was convicted in 2010 on a felony robbery charge and was convicted in 2011 on a drug charge.
In dismissing the case against Austin, Brauchler and senior district attorney Christopher Wilcox wrote that there had been probable cause for the grand jury to indict Austin, but the standard for putting Austin on trial was higher. They wrote that, “all of the admissible evidence viewed in its entirety helps us reach this difficult conclusion today.”
Prosecutors said Graham’s mother had been informed of the decision in the Austin case and was “disappointed in this outcome,” but understood and did not object to the case being dismissed.