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Foster denied retrial

May 22, 2001

Foster denied retrial



By MARLO BARNHART and JULIE GREENE


While admitting errors were made 19 years ago at the murder trial of a former Falling Waters, W.Va., man, a Washington County Circuit judge ruled Monday they weren't serious enough to warrant a new trial.

But Judge Kennedy Boone did clear the way for Wayne Alanson Foster to have a resentencing hearing and to file a belated application for a sentence review by a three-judge panel.

The resentencing will be before Washington County Circuit Judge Frederick Wright, who presided in 1982 when a jury heard five days of testimony and found Foster guilty of murdering his wife.

Wright imposed the maximum life sentence for first-degree murder plus 15 years for use of a handgun. Foster is serving those sentences at the Maryland Correctional Institution south of Hagerstown.

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In his 106-page ruling, Boone said Foster "failed to show that trial counsel's performance was deficient under prevailing professional norms."

Foster, 54, was represented by Paul Ottinger, a former Washington County Circuit judge who has since died, who later was convicted of mail fraud, bank fraud and forgery.

Sherry Marie Foster, then 28, was found Oct. 6, 1981, dead from five shots. She had been returning to her Martinsburg, W.Va., home from Frederick, Md., when her car became disabled on Interstate 70 and she pulled off 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 March 27 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 as at times "pitiful" and "stupid."

Among Bennett's arguments were Ottinger's failure to make certain objections, his failure to request that Wright issue certain instructions to the jury, his failure to call character witnesses during the trial or sentencing hearing, and his failure to ask Wright to suspend part of Foster's life sentence.

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

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

He also testified that despite serving as a Martinsburg City Police officer for 11/2 years, he wasn't familiar with criminal court proceedings.

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