Willful failure to disclose exculpatory evidence
Any lawyers in the house? Does anyone know if there are laws that provide for ANY CRIMINAL PENALTIES for prosecutorial misconduct???
The case below reveals the tactics of prosecutors willfully failing to disclose exculpatory evidence and putting people into prison for decades -- or even getting them executed -- with little more than a slap on the wrist by a judge 17 years later.
The Prosecution of Dennis Counterman
A Case of Injustice in Pennsylvania
By JOEY DeRAYMOND
In 1972, the United States Supreme Court invalidated all existing death sentences in its decision Furman v Georgia. Since then, 38 States have reinstituted death penalties that conform to the constitutional standards set forth in Furman. 1011 people have been executed in the United States between 1977, when Gary Gilmore was shot before a Utah firing sqad, and February 8, 2005, when Robert Neville, a native american from Texas, was given a lethal injection.
Since Furman, 122 people convicted of murder have been released from death row through evidence of innocence, exonerated. Six if those have been from Pennsylvania, which has executed three in these post-Furman years, from a death row that now numbers 231. Here is the story of Dennis Counterman, a Pennsylvanian who was sentenced to die, who is proven innocent, yet remains imprisoned.
On July 25, 1988, a fire consumed 436 Chestnut Street, Allentown, Pennsylvania. Chestnut Street is a narrow, sunless alley just a couple of blocks from the Lehigh County Courthouse and prison, located between Penn Street and 4th Street. 436 is part of a row of two story houses sharing common side walls, each home 9 wide feet by 50 feet long, with a narrow, steep set of steps leading up to a front porch.
The tenants who squeezed into 436 were the Counterman family; Dennis, 28 and Janet, 26, husband and wife, children Christopher, 6, James, 4, and Scott, ten weeks. Dennis worked at HAB Industries, a local textile plant, with a salary that allowed him to take home about $160 a week. Dennis had a 9th grade education, with learning disabilities that were either caused or exacerbated by beatings in his early years, before his father left his family when he was 9. He was unable to obtain a driver's license because he could not pass the written portion of the test. Janet has an IQ under 70. The house had a history of fires, one several years earlier, and another just weeks earlier, when Christopher set fire to curtains with a lighter. In that case, Dennis had managed to put out the fire.
The fire of July 25, 1988, started on the first floor. Dennis, again, tried to put out the fire. He was driven out of the living room by smoke, climbed on the back roof and tried to enter to save his family. He was not able to get back in the house, and broke his heel jumping off the roof. He was screaming and crying, and had to be restrained from entering the house.
The children died in the smoke and heat of the fire. Janet escaped off the front roof. The initial account given by Janet Counterman on July 25 to Sergeant Kochan of the Allentown Police Department is as follows: "I also interviewed the wife, Janet Counterman. She stated the oldest son, Christopher, woke her up and told her there was a fire downstairs. She woke her husband up. That was all she remembered." Janet was severely burned, with 2nd and 3rd degree burns over 50% of her body, and was placed in a burn unit, in critical condition.
Dennis was also taken to the hospital, treated for smoke inhalation and his broken heel. Here is his statement of the events of that night, as related to Sergeant Kochan on the day of the fire: "En route to Lehigh Valley Hospital, I got the husband's name, Dennis Counterman. I spoke to him briefly in the car, but I interviewed him at the hospital. Dennis stated he was sleeping in the front bedroom, second floor, with his wife and baby Scott. He said his son Christopher woke him up and told him there was a fire downstairs. His other son James was with Christopher. He went down to try to put the fire out. The fire was in the sofa in the living room. He was trying to put it out with water from the kitchen sink with a bucket. The smoke pushed him out the door. He climbed on the roof to try to get the children out but couldn't. He jumped off the roof. He also stated the when he was trying to put the fire out he was calling to his wife but she did't answer. I asked him if he knew how the fire started. He said the children must have had matches or a lighter. They did that before. I also interviewed the wife Janet Counterman. She stated the oldest son, Christopher, woke her up and told her there was a fire downstairs. She woke her husband up. That was all she remembered."
Janet Counterman was sedated with morphine and anti-anxiety medications due to the extreme pain caused by her injuries. She was intubated. Detective James Stephens visited her during the period of her stay in the hospital, and conducted various interviews. The first, on July 31, was a series of questions that could only be answered with nods, or written "yes" or "no", as Janet was still on a a breathing tube. He elicited statements that she feared Dennis, that Dennis was physically violent and that Dennis started the fire. Stephens followed with other interviews in August. On August 8, 1988, Janet gave this statement to Stephens: "Now wait a minute, there was one more, ah, his oldest boy Christopher had, was, I don't know, he either got hold of a lighter or matches or, and caught the curtains on fire, but Dennis put that one out."
Dennis became aware that he was a suspect. He went to the hospital on August 22 and 23, and had angry words with his wife. On August 23, he was arrested for three counts of murder by arson for the deaths of his sons, 1 count of attempted murder by arson for the injuries to his wife, 2 counts of arson, and 2 counts of intimidating a witness, for his encounters with his wife on the 22nd and 23rd. The District Attorney, William Platt, sought the death penalty.
At his trial from January 22 to February 9, 1990, Dennis was represented by public defenders Robert Long, who had tried one murder case, and Karen Schular, who had passed the bar examination in 1989. The prosecution case was brought by Assistant District Attorney Richard Tomsho. The prosecution theory was that Dennis had set the fire to get rid of his family, because he no longer wanted a family life. There was evidence presented that he had made remarks to the effect that he was "sick" of his children. There was testimony about his pot smoking. There was supposition that he stood to gain from the rental insurance. Here is a description of Tomsho's final summation before the jury;
"Counterman may have decided he no longer wanted to be a husband and father, Tomsho said, and gotten to the point where he said, 'I can't take it anymore, I don't want it anymore.'
For the average person, those may not be reasons enough to kill, the prosector said. "But doesn't the evidence suggest they may be reason enough for the defendant?" Tomsho asked the jury. "Preposterous as it may seem, and maybe, for the reason I suggested, strange. But they are valid reasons, and they are the reasons in this case." Tomsho told the jury. (Allentown Morning Call, 2/9/90, Debbie Garlicki)
Dennis has always denied that he set the fire that killed his children, burned his wife and destroyed his life. His defense team tried to rebut the prosecution's case with the theory that Christopher started the fire, as was stated by both Janet and Dennis on the night of the fire. Their statements were further buttressed by statements of Madeline Rothermel to the police, on July 25, 1988, in a statement to Officer John Kerrigan: "She knows the mother of the children 436Chestnut Street. States the mother told her the older boy, "Chris" had lit the curtains in the children bedroom with a cigaretter lighter approximately one month ago. The family had been able to put it out. Rothermel states that she saw the boys fingers and they appeared to have minor burns. She knows not if this was due to the fire or possible punishment. She felt this should be reported to the Children's Bureau. For all the good this will do now."
There were numerous other similar statements given to the police and authorities during the investigation in the days after the fire, to the police and the County Children and Youth Services. The reason that Dennis was unable to establish to the jury that Christopher in all probability started the fire was that Richard Tomsho, the police and trial Judge Mellenberg did not allow these documents into the hands of the defense. The initial statement by Janet was whited out by Richard Tomsho before the rest of the statement was given to the defense. The statement above by Madeline Rothermel was not discovered until February 16, 2001. All exculpatory statements were released either in the middle of the trial, which did not allow a clearly overwhelmed defense team to properly present the testimony, or never revealed.
Officer James Stephens testified at trial that Janet Counterman never made statements about prior fire starting behaviour of Christopher. He read into the record, to the jury, a denial by Janet from the hospital interviews that Christopher had ever set a fire or played with matches. Janet testified at trial that her children did not have a history of fire starting behaviour. She was an "eyewitness" to Dennis' guilt at trial, and the prosecution based their case on the testimony developed in the hospital interviews, while Janet was drugged and intubated.
The defense never brought out her lack of capacity while in the hospital. The defense never told the jury that Dennis had never had one conviction, even for a parking fine. The Judge did not allow a psychiatric examination of Janet for the record. The police never came forward with the evidence they had collected that could have backed the idea that Christopher started the fire. The Chief of the Allentown Fire Department, Joseph D'Annibale, testified that the fire was set with an accelerant, although no evidence of an accelerant was discovered.
The jury, in six hours, found Dennis guilty on all counts, of three first degree murders, attempted murder, arson and intimidating a witness. The next day, August 9, they returned a death penalty, after a four hour deliberation. Detective James Stephens was quoted, "I feel justice has been served."
On November 22, 1996, post-trial motions were denied by the Lehigh County Court, sitting en banc. Dennis' death sentence was finalized by Lehigh County Judge Lawrence Brenner on December 6, 1996. Collateral relief counsel was provided by Allentown Attorney Wallace Worth, who provided no relief for Dennis.
Governor Tom Ridge signed a death warrant on October 13, 1999, for a December 9, 1999 execution, which was stayed by a writ filed in November. In 2000, Dennis' case was accepted by Attorneys James Moreno and Victor J. Abreu, of the Defender Association of Philadelphia. They hired a fire investigator, Richard L. P. Custer, who found that the fire is "unlikely to have started with ignitable liquid spread on the stairs, dining room carpet, out to the kitchen", and "the scenario of a fire starting on the sofa and extending to the rest of the structure is consistent with the damage seen", and further, "there is no fire scene evidence to support the use of an ignitable liquid in this fire."
Moreno and Abreu looked at the prosecution files of the case, and found extensive prosecutorial misconduct. They state in a Court Petition, "In this case, the Commonwealth's behavior was nothing short of unethical, unconstitutional and clearly intended to deprive Petitioner of a fair trialThe Commonwealth also presented evidence it knew to be false and misleading, such as the testimony of Detective Stephens and Mrs. Counterman that there was no evidence of prior fire setting behavior on the part of Christopher testimony directly contradicted by evidence sitting in the prosecutor's file at the time of trial and by Detective Stephen's investigation, including his contact with the Lehigh County Office of Children and Youth Services concerning this case. In short, every piece of evidence that fell into their hands indicating Petitioner was innocent was suppressed. A more deliberate denial of a capital defendant's right to a fair trial has never been presented to the courts of this Commonwealth."
Moreno and Abreu brought a Petition for Post Trial Relief to the Lehigh County Court. It was heard by Judge Brenner, and on August 27, 2001, this same Judge who signed the death sentences of Dennis Counterman granted him a new trial. His convictions were vacated, he was once again innocent until proven guilty. Judge Brenner stated, "Finally, it is beyond reproach that the Assistant District Attorney responsible for the numerous Brady violations detailed above engaged in a pattern of conduct that at best, was misguided, and at worst, deceitful."
The current Lehigh County District Attorney, James Martin, immediately decided to retry Dennis for capital murder. However, he is pursuing a case without basis. The witness key to the prosecution, Janet Counterman, made this statement in 2003: "My name is Janet Counterman. This statement is being handwritten by Attorney James Moreno, one of Dennis' lawyers who along with Victor Abreu interviewed me at my home. They asked me what I remember about the fire and my stay in the hospital. I told them it has been so long that I do not remember what happened. Last year I told Detective Stephens the same thing when he talked to me at my home. It has been so long I don't know how the fire started."
Here is a report about the testimony of the prosecution's new fire expert, George Umberger: "Umberger said that some of D'Annibale's and Wenzler's opinions and those of a defense expert were speculation. Indications of other fires at the house and reports that the children played with matches 'certainly has to add some credence to the possibility that this fire may have been a juvenile act'By today's fire investigation standards, he said, the prosecution's experts do not have 'truly provable' theories of how and where the fire started." (Allentown Morning Call, 10/2/2004, Debbie Garlicki)
Since his key witness can no longer testify, District Attorney Martin tried to get Judge Brenner to allow transcript testimony of Janet Counterman before a new jury, testimony that was not able to be fully cross- examined at the 1990 trial due to prosecutorial misconduct. When Brenner said no, Martin appealed to the Superior Court. In August of 2004, the Superior Court agreed with Judge Brenner. Lehigh County District Attorney Martin is now before the Supreme Court of Pennsylvania, asking for the right to use the discredited 1990 transcript testimony of Janet Counterman to convict Dennis Counterman of capital murder for the deaths of his children.
Dennis Counterman remains in Lehigh County prison, about two blocks from 436Chestnut Street, Allentown, a city that calls itself "Pennsylvania's Park Place". He has refused a deal from the Lehigh County District Attorney, and will accept nothing less than his freedom. Attorney Richard Tomsho is a member of the staff of the Pennsylvania Attorney General, Environmental Crimes Division.
Joe DeRaymond, of Freemansburg, Pennsylvania, member of Lehigh Valley Citizens Against State Killing, (LV CASK), and Pennsylvania Abolitionists Against the Death Penalty. He can be reached at: firstname.lastname@example.org
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