They’ve been collectively referred to as “the Ungers” — a group of 200 Marylanders serving life sentences, who were freed under a landmark 2012 ruling by the state’s highest court regarding unconstitutional jury instructions.

But over the ensuing decade, the ruling’s namesake was not among them. Merle Unger, who was sentenced to life plus 40 years for killing an off-duty Hagerstown police officer in 1975 at age 26, was instead retried and reconvicted.

Unger is now among the Ungers.

On Wednesday, a Talbot County judge ordered that the 73-year-old be released to a Baltimore reentry program, which took place overnight.

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“At this juncture, the court is persuaded that Mr. Unger has sincerely repented and concentrated on being of service to others,” Circuit Court Judge Broughton M. Earnest wrote in an opinion.

Of the 200 people released, six have been reincarcerated — a 3% rate of recidivism.

Supporters cheered the news as overdue, while those who have fought to keep Unger incarcerated said they were blindsided and disappointed. Washington County State’s Attorney Gina Cirincion told the Hagerstown Herald-Mail that Unger “should have spent the rest of his life in prison.”

Unger shot and killed off-duty police officer Donald Ralph “Barney” Kline at a Hagerstown grocery store. At the time, Unger was on the lam after his latest of several escapes from the local jail, where he’d been held for petty offenses. Kline sought to thwart the robbery, and pursued Unger into an alley where they exchanged gunfire. Unger was later located bleeding in the basement of a nearby home.

At a three-hour hearing in June, Kline’s family and current and retired Hagerstown police officers testified that they opposed his release. Thirty members of the police department as well as Police Chief Paul Kifer, and Michael King, a retired Hagerstown officer who is now chief of police in Shepherdstown, West Virginia, urged that Unger not be released.

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“Do your time and stop bothering me,” Kline’s daughter, Vienna Kline-Moon, said to Unger at the hearing, according to the Herald-Mail. “Sir, can you make him do that?” she asked the judge.

Unger had supporters, including 15 corrections officers, which Earnest wrote was “truly remarkable.” Family members said they were prepared to relocate and support him.

Unger told Kline’s family that he didn’t know Kline was a police officer, and believed he was trying to kill him. “I’m doing everything I can to make amends for it,” Unger said.

Over his decades in prison, Unger got married and had two children. He started a program in which he has sent cards and poems to police departments across the country and families who have lost colleagues and loved ones in the line of duty. He had no infractions after 1991.

“When you get old,” Unger told The Huffington Post in 2016, “you look back at all the things you did and you regret them. … I want to prove that I can do something good.”

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He said at the time that those released before him all deserved a second chance. “That’s something the American prison system got away from: giving people second chances.”

Unger had a penchant for escaping from custody. He obtained a hacksaw and cut through his cell bars and escaped through an air duct, fleeing to Florida. His case would be transferred from Washington County to Talbot County due to pretrial publicity, and after being convicted was able to escape a maximum-security prison and hijacked a dump truck. The FBI led a national manhunt, and he was captured while breaking into a Florida gun shop.

King, the West Virginia police chief, said he was in high school when Kline was killed, and became an officer and participated in a search after one of Unger’s escapes.

“Knowing what he had done, and obviously what he was capable of, and his lack of simple respect for life; made those searches nerve racking,” King recalled in a letter to Earnest opposing Unger’s release. “He should never be given the chance to do it again.”

King told The Banner on Thursday that he was disappointed but not surprised that Unger was released. He thinks Unger is still a threat to the public.

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“Let’s take the chance with public safety and give a murderer, an armed robber, a convicted escapee a chance to prove he has changed,” King wrote in an email. “But hey if he commits another crime then Maryland will know they were wrong…and I guess that will make the new victim’s family feel a lot better knowing he was given another chance.”

Unger told The Huffington Post that he had an awakening in the 1980s after meeting his wife and becoming a father — the children were conceived in prison. He no longer wanted to lead a life of crime, and began researching the law. A friend who worked in the prison’s law library told him about a case in which a federal inmate earned his freedom by challenging the constitutionality of the jury instructions in his trial.

In Maryland, prior to 1980, judges told juries that part of their task was to determine what the law was — a holdover from the 1700s.

In 2012, the state’s highest court agreed that such jury instructions violated a defendant’s constitutional rights and ordered new trials. By that time, anyone still serving time for a conviction prior to 1980 was likely serving time for murder or rape, and prosecutors across the state began the process of weighing whether to retry cases using decades old evidence, or agree to release the prisoners.

More than 230 cases were affected, and 200 people have been released. Unger was retried and sentenced again to life in prison.

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Judith Jones, Unger’s public defender, said Unger was picked up from prison in West Maryland and transported to Baltimore overnight. She said the first thing she did after receiving the judge’s order was to text Unger’s sister, and later spoke with him over the phone.

“It was joyful. It was just really joyful,” she said.

Jones, who will be retiring soon from the Office of the Public Defender, said Unger’s continued confinement while others with similar circumstances were released points to disparities across jurisdictions. She said police and the former prosecutor in the case heavily lobbied to keep him locked up.

“There’s really no earthly reason to keep people in their late 60s and 70s incarcerated,” she said.

An earlier version of this article misstated Unger’s age at the time of the killing. He was 26.

justin.fenton@thebaltimorebanner.com

Justin Fenton is an investigative reporter for the Baltimore Banner. He previously spent 17 years at the Baltimore Sun, covering the criminal justice system. His book, "We Own This City: A True Story of Crime, Cops and Corruption," was released by Random House in 2021 and became an HBO miniseries. 

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