1988 Pa. case is model for death penalty foes

Defense fumbled, prosecutors cheated

March 28, 2002|By Todd Richissin | Todd Richissin,SUN NATIONAL STAFF

ALLENTOWN, Pa. - Thirteen years have gone by since the young Counterman boys died when fire curled through the family's rented house. All that time, their father, Dennis Counterman, has sworn to anybody who will listen that he did his best to save them.

"I promise, I tried to get them out," he said recently in a prison waiting room. He paused, used a chubby index finger to push thick glasses higher on his nose. "I promise, I loved them boys."

But at a trial that was the talk of this Lehigh Valley community, prosecutors painted a picture not of a devastated father but of a heartless monster, an arsonist who burned his own little boys alive. A jury convicted Counterman of premeditated murder and voted to sentence him to be executed by lethal injection for the deaths of Christopher, 6, James, 4, and Scott, barely 10 weeks old.

What the jurors didn't know was that the portrayal of Counterman - in fact, most of the case against him - was created by the misconduct of prosecutors, according to a judge's ruling that reversed the convictions. Lehigh County Judge Lawrence J. Brenner, who heard the evidence at a post-conviction hearing in 2000, labeled the conduct "unethical" and ordered a new trial.

Now, despite plans by prosecutors to try Counterman again, foes of capital punishment believe he could be the 100th death row inmate in the country to be exonerated since a 1972 U.S. Supreme Court ruling forced states to rewrite their death penalty statutes to make sure they were fairly applied.

Among the problems at the trial cited by Brenner: Prosecutors not only withheld evidence but actively altered it. A statement by Counterman's wife that she awakened him after the fire began - supporting his contention that one of the boys must have accidentally started the fire - was whited out from papers handed to defense attorneys before the trial.

And, the judge found, the prosecution suppressed evidence that two of the boys had a history of playing with matches, more evidence supporting the father.

The prosecution prevailed, in part, because Counterman's two-person defense team was unable to mount an adequate defense of their client, the judge found. One of the defense lawyers had graduated from law school just eight months before the trial.

Because of cases like Counterman's, where an innocent person might be executed, the death penalty is now under siege around the country.

Since capital punishment was reinstated in 1976, 22 people in Florida alone have been sentenced to death only to have their convictions reversed.

While a majority of Americans support executions, several polls show public support for the death penalty decreasing from about 80 percent to about 60 percent over the past 18 months.

In Illinois, Gov. George Ryan, troubled by irregularities in numerous capital cases, declared a moratorium on executions. At least a dozen state legislatures are considering moratoriums.

In Maryland, where 15 people are on death row, Lt. Gov. Kathleen Kennedy Townsend said last week that if a study being conducted by the University of Maryland shows that the death penalty in the state is flawed, she would support a moratorium, should she become governor.

Counterman's case shares many of the elements that led to convictions being set aside in the 99 previous cases: an indigent defendant with limited intellect and defense attorneys unprepared to contend with either police or prosecutorial misconduct.

"Death penalty cases like this are at a whole different level than your everyday cases and are more - not less - prone to mistakes and misconduct," said Robert C. Dieter, executive director of the Death Penalty Information Center, based in Washington.

"Life and death are at stake, and both sides get so invested in winning because of the attention from the public and the media that there's little backing off and a lot of doing whatever it takes to win."

Dudley Sharp, a spokesman for the pro-death penalty group Justice for All, based in Houston, blames the media for focusing on mistakes made in death penalty trials. As a result, he said, "the public's perception of the number of innocent people sentenced to death is unreasonably high."

Nevertheless, he argued, death is the right penalty for many heinous crimes, and a majority of the public still agrees. "Abolitionists have been writing the death sentence for the death penalty for 40 years," he said. "This is not the end of the death penalty."

While cases like Counterman's, in which guilt is in doubt, have received more attention than perhaps ever before, questions about the appropriateness of the death penalty even for the guilty are being raised more and more.

Five states decided in 2001 to ban the execution of the mentally retarded, and the U.S. Supreme Court has agreed to consider banning such executions nationwide. Last week, it heard a Tennessee case that could make it easier for appeals to be won because of ineffective lawyers.

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