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.
If the court agrees with the argument, defendants at appeals would need to show only that the attorneys were so inept that the trial was unfair. Now, defendants must show that competent attorneys could have swayed jurors to render a not guilty verdict.
Another Tennessee capital case also has drawn national attention because of the quality of legal representation afforded to the defendant, Abu-Ali Abdur'Rahman, formerly James Lee Jones.
While there seems little doubt he was present at a murder, questions about the degree of his involvement in the crime - among other pertinent issues - were never examined at his trial, which resulted in a death sentence.
His trial attorney, for example, never knew that blood from the victim had not been found on any of Abdur'Rahman's clothing - as prosecutors indicated to the jury. The prosecutors were subsequently admonished and the defense attorney has since surrendered his law license - but by then the death penalty had already been imposed.
Further, a second attorney, hired for the sentencing phase of Abdur'Rahman's trial, was a civil attorney who had never handled a death penalty case. He failed to bring to the jury's attention mitigating factors such as documented abuse the defendant suffered as a child.
During the sentencing phase, jurors were asked to decide whether mitigating circumstances outweighed aggravating factors. But they weren't told, for example, that Abdur'Rahman's father used to place him hog-tied in a locked closet, tethered to a hook with a piece of leather tied around his genitals.
"The fact is, when you see a death penalty overturned because of inadequate counsel, that shows the system is working," said Sharp. "That person has not been executed."
To understand how honest juries can make decisions about life and death while not considering crucial evidence, the case of Dennis Counterman can be held up as Exhibit A.
On July 25, 1988, Counterman, according to witnesses, was seen outside his home, climbing a roof in a vain attempt to rescue his sons.
The two older boys were found by firefighters, dead in their bedroom. The baby died a short time later at Allentown Hospital. They were killed by a combination of burns and smoke inhalation, according to their death certificates.
Their mother, Janet M. Counterman, suffered severe burns over half her body, but managed to give a statement to a detective who interviewed her at her bedside.
"She stated the oldest son - Christopher - woke her up and told her there was a fire downstairs," according to the statement. "She woke up her husband. That was all she could remember."
Later, she changed her story and said she was awakened by one of her sons who told her Dennis Counterman was starting a fire in the living room. Janet Counterman, who is learning disabled, would be the only witness to blame the fire on her husband.
The inconsistencies in her statements would have aided her husband's defense lawyers as they prepared for trial. But despite laws that require prosecutors to turn over such materials, Counterman's lawyers never knew before the trial about the interview in which his wife said she had awakened him.
That is because prosecutors used white-out to cover up that portion of her statement, photocopied it and handed it to defense attorneys. They learned about the deception in the midst of the trial, but the prosecutor, Richard Tomsho, described the doctored statement as a harmless error.
In all, prosecutors withheld seven pieces of evidence that would have supported Dennis Counterman's version of events, the judge found. Among them were the reports from social workers and neighbors about Counterman's oldest son setting fires in the family home.
Taken together, Judge Brenner said, "this was not harmless error."
"It's really unbelievable," said James Moreno, a federal public defender who handled Counterman's appeal and won the reversal of his conviction. "This is no way to handle any case, let alone a death penalty case."
Moreno said the information would have buttressed Counterman's defense that not only was he not guilty, but that no crime had been committed at all, that the fire had been set accidentally by a child.
Counterman's defense team produced no hospital records, which would have shown Counterman's wife was on at least three heavy anti-psychotic drugs when she first implicated her husband, thus raising questions about the credibility of her testimony.
They produced no evidence that she had scored in the retarded range on IQ tests. This information was entered into the record at the post-conviction hearing.
When a defendant is found guilty in a death penalty case, the job of defense attorneys is to demonstrate to jurors that enough mitigating circumstances exist that execution is not warranted.
At sentencing, Counterman's attorneys provided the jury with none of the documented physical abuse he suffered at the hands of his alcoholic father who abandoned him at age 9. Nor did they know Counterman's intelligence had tested in the lower 5 percent of the general population.
And defense attorneys never told the jury at trial that Counterman had never been in trouble with the law, ever, that he had never received so much as a parking ticket.
Judge Brenner ruled on appeal that Counterman's defenders, who between them had handled a single death penalty case, had provided such an inadequate defense that Counterman deserved a new trial.
The judge did not spare prosecutors, either. Their conduct rendered the trial meaningless, he ruled, because jurors were not given the facts they needed to weigh guilt and innocence. Even if Counterman had adequate attorneys, the judge ruled, the conduct of prosecutors required that he get a new trial.
Counterman remains in prison because prosecutors refuse to drop charges, preferring to let a jury decide whether he should go free.
"I think when three kids are killed in a fire that we believe was started by the father that a jury should decide what to do with him," said Lehigh County District Attorney James Martin, who was an assistant prosecutor at the time of trial but did not participate in it.
Brenner will preside at the new trial, if it occurs.
Before Dennis Counterman can be tried again, he and prosecutors are waiting to hear from a Pennsylvania appeals court. The appeals court, a step below Pennsylvania's Supreme Court, must rule whether putting Counterman back on trial constitutes double jeopardy, given the deception and unethical conduct that Brenner found had occurred in the first trial.
Martin said that if he gets Counterman back in the courtroom his office will again seek the death penalty.
For a long time, Counterman said, he never fully grasped that he had been sentenced to death, not even when then-Gov. Tom Ridge signed his death warrant a bit more than two years ago.
Counterman said if he is released, he'd like to spend some time at the grave of his three children.
They are buried together in a single casket in Greenwood Cemetery in Allentown. They are in Lot 313, Section D, Grave C-E, under a gray tombstone topped with the words, "Counterman" and "God's Children." Under that are the boys' names, the tragedy of their deaths implicit in the shortness of their lives.
"1982 Chris A. 1988."
"1984 James A. 1988."
"1988 Scott D. 1988."
Not until Counterman was moved to Pennsylvania's "Phase Two," the last prison stop before the lethal poison is injected, did it strike him that he was a needle-length away from being put to death.
"I was scared, but I knew they'd figure it out because I didn't do it - but they didn't," he said. "I'm a little bit scared now because after you're put to death, you can't fight it then."
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