A man serving a life prison sentence for killing a Harford County couple who had befriended him could be close to getting out of jail for the first time in 39 years.
Peter Sutro Waine, who was granted a new trial in June 2012, is scheduled for a hearing in Harford County Circuit Court in Bel Air Wednesday morning to set bail and conditions for his release from prison while the state appeals the decision that ultimately could free him permanently. Harford Circuit Judge Angela Eaves will preside.
Waine, 72, an inmate at the Western Correctional Institution in Cumberland, was convicted in 1976 of killing Lyle Ager, 35, and Marilyn Smith, 24, who were found bludgeoned to death in their Abingdon home on April 14, 1975. Convicted of two counts of first-degree murder and auto theft by a Harford County jury in April 1976, Waine was sentenced to two consecutive life terms, plus 14 years for stealing Ms. Smith's car.
After several earlier attempts by Waine to get the convictions overturned were unsuccessful in both state and federal appellate courts, the case took a new turn following a controversial 2012 Maryland Court of Appeals ruling that raised the issue of the standard instructions judges gave to juries in the 1960s and 1970s were constitutionally flawed. The ruling came in an appeal for post-conviction relief by Merle Unger, a convicted cop killer from Western Maryland. Though the ruling caused Unger's conviction to be overturned, he was charged and tried and convicted a second time and remains in prison.
The so-called Unger rulings have, however, resulted in several convicted murderers being freed across the state and others awaiting reviews of their convictions. According to a recent court filing in the Waine case by the Maryland Attorney General, "a conservative estimate of the number of defendants seeking collateral review of a motion to reopen is well over 200."
The Attorney General's Office is trying to get the Court of Appeals to reconsider the Unger decision and has joined with Harford County State's Attorney Joseph Cassilly in trying to derail the 2012 decision by Harford Circuit Judge Emory A. Plitt Sr. to grant Waine post conviction relief in the form of a new trial, after Waine's lawyer raised the Unger technicality.
Last month, the Court of Special Appeals denied a request by the state to stay all proceedings – including a retrial – until the appeal of Plitt's decision is adjudicated. As a result, the clock is ticking on the time Cassilly has to retry Waine, both Cassilly and Waine's lawyer acknowledged.
On Friday, the States Attorney's Office filed a petition with the Court of Appeals asking it to review the intermediate court's ruling and to put the brakes on the Waine case and others similarly affected until the Unger decision is reviewed and reconsidered, a move Howard Cardin, Waine's lawyer, says is flawed.
Cardin, who wasn't Waine's trial lawyer, said Monday he believes Waine should be allowed out of jail and that the state's latest effort to prolong the case at the appellate level "deals more with general questions [in Unger cases] than it does with Peter Waine's case."
"I think they [the state] selected any case to try and raise these issues," added Cardin, who said he believes one major point in the petition filed Friday was already addressed by Judge Plitt when he decided Waine was entitled to a new trial.
"How this all affects [Wednesday's hearing] I don't know," Cardin said. "I hope nothing."
Cassilly, who has vowed to retry Waine if the Plitt ruling stands, says he will oppose Waine's release while the case continues. He has taken a similar stand with a handful of other Unger cases in Harford, one which was recently resolved when a convicted murderer pleaded guilty a second time and received a modest reduction in his life sentence.
"He [Waine] shouldn't be allowed out" of prison, Cassilly said, calling Waine a flight risk. "When we finally caught up with him [in 1975] he had been in something like 20 states. He should stay in jail."
Testimony at Waine's trial disclosed he was a drifter and admitted cheat, liar and con man who traveled around the country scamming people, sometimes stealing their checkbooks, credit cards and identification. Adopted as a child by a prominent Boston family, he admitted during the murder trial that he had lived a life of crime and deceit as a means of rebellion, but also claimed he was a pacifist and denied killing Mr. Ager and Ms. Smith.
Several weeks before the bodies were discovered, Waine was detained in Arizona on an unrelated warrant and was found to be driving Ms. Smith's car and in possession of a bank book, bank card and driver's license belonging to Mr. Ager. Maryland State Police, who handled the investigation, subsequently charged Waine with the Abingdon murders.
Waine, who testified he first met Mr. Ager when Waine was working at a Joppa hardware store where Mr. Ager was a customer, claimed he had been given permission to use the vehicle, bank card and a credit card to travel to Arizona to meet a man in connection with a business deal that Mr. Ager had been interested in joining. He also testified he had stayed for a few days at the couple's Abingdon home, sleeping on a cot in the living room and that the couple was alive when he left them on the evening of March 7, 1975.
Forensic evidence produced at the trial placed Waine in the home, but not in the bedroom where the bodies were found, nor did prosecutors ever produce a murder weapon. The deputy medical examiner who supervised the autopsies of the victims could not, under cross examination, say if they had been dead a week or several weeks when they were found, according to accounts of the trial published in The Aegis.
Calling the state's evidence "circumstantial," Waine's defense lawyer offered an alternative theory that the couple was killed by an intruder, or intruders, after Waine left for Arizona. The jury of eight women and four men, however, took less than two hours to convict Waine.