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New trial requested in 1981 murder

March 27, 2001

New trial requested in 1981 murder



By JULIE E. GREENE

julieg@herald-mail.com

A former Falling Waters, W.Va., man seeking a new trial in an attempt to overturn his murder conviction almost 19 years ago will at least get a shot at a reduced sentence, a judge said Tuesday.

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Wayne Alanson Foster, 54, is seeking a new trial in Washington County Circuit Court, claiming he had ineffective assistance of counsel during his murder trial in April 1982.

His defense attorney was Paul Ottinger, a former Washington County Circuit judge who was later convicted of mail fraud, bank fraud and forgery.

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Circuit Judge Kennedy Boone said Tuesday Foster is entitled to belatedly apply for sentence review before a three-judge panel. He said Foster deserved at least that much because of the seriousness of the charges and that he was given the maximum sentence by Circuit Judge Frederick C. Wright III in 1982.

Foster was sentenced to life in prison for the first-degree murder of his ex-wife Sherry Marie Foster, plus 15 years for unlawful use of a handgun during the commission of a felony. The sentences were to be served concurrently.

Sherry Foster, then 28, was found Oct. 6, 1981, dead from five shots. She had been returning to her Martinsburg home from Frederick when her car became disabled on Interstate 70. Apparently, she had pulled off I-70 onto Md. 66, a remote road southeast of Hagerstown.

Wayne Foster became a prime suspect after police learned he did not return to his home that night or go to work the next day. He turned up in Colorado a week later, traveling under an alias.

During a Tuesday hearing on Foster's petition for post-conviction relief, his defense attorney attempted to paint Ottinger as confused and unaware during Foster's trial.

Greenbelt, Md., defense attorney Fred Warren Bennett characterized Ottinger's defense of Foster at times as "pitiful" and "stupid."

Boone said Foster could apply for sentence review after Foster testified he asked Ottinger to file an appeal immediately after his sentencing, but Ottinger never did.

That alone does not provide evidence of inadequate counsel, Boone said in his chambers during a recess from court.

On the bench, Boone said Foster's allegation that Ottinger provided inadequate counsel alone was not enough to warrant a new trial. Boone told Bennett he would have to argue a "cumulative prejudice" was created that would have affected the verdict.

That does not mean Foster would have to have been found not guilty, but perhaps the trial could have resulted in a hung jury, Boone said.

Among Bennett's arguments were Ottinger's failure to make certain objections, his failure to request Wright to issue certain instructions to the jury, his failure to call character witnesses during the trial or sentencing hearing, and that Ottinger didn't ask Wright to suspend part of Foster's life sentence.

Recent law at that time would have allowed Wright to suspend part of the sentence, a fact that then-Washington County State's Attorney John Salvatore brought up during the sentencing hearing, Bennett said.

Foster testified Tuesday afternoon that three times during meetings with Ottinger just prior and during the trial he smelled alcohol on Ottinger's breathe and the former judge seemed confused or disoriented.

When Assistant Washington County State's Attorney Joe Michael asked Foster why he didn't say something then about his concerns regarding Ottinger, Foster said he told his father who was paying Ottinger's legal fees. Foster's father is now dead.

Foster said he didn't mention his concerns to anyone else or even to Ottinger because he didn't know he could bring that up to Judge Wright.

Foster later testified that despite serving as a Martinsburg City Police officer for 1 1/2 years, he wasn't familiar with criminal court proceedings.

To further his argument that Ottinger was troubled, Bennett submitted for evidence a letter written by Ottinger to a client less than four months after Foster's sentencing. In the Aug. 7, 1982, letter Ottinger wrote, "I'm having very serious personal and health problems."

Bennett later described those problems as financial troubles and drinking.

Ottinger made national headlines in 1987 when he disappeared from his Hagerstown home. Police found Ottinger in York, Pa., three months later living under an assumed name.

He was accused of defrauding his clients of thousands of dollars and served almost four years in a federal prison in Florida and a Maryland prison.

Ottinger died from a blood disease Oct. 22, 1993, at the Harbour Center in Baltimore, where he was being treated for his health problems and a gambling addiction.

Boone said he expects to issue a written opinion on the request for a new trial within 30 days. If Boone doesn't find a new trial is warranted, he could decide Foster deserves a new sentencing hearing by Judge Wright.

The third option is the application for sentence review, of which Foster is already assured.

Having exhausted his other appeals, Foster said he didn't file a petition for post-conviction relief until recently because he couldn't afford the legal fees. That changed after he got married in jail. His wife attended court Tuesday.

Foster is eligible for parole, Bennett said.

However, Gov. Parris Glendening has yet to grant parole to any convict serving a life sentence.

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