By RAYMOND BONNER The New York Times
August 30, 2001

Finding that prosecutors had withheld critical evidence from a defendant, a Pennsylvania state court judge has thrown out the conviction of a man who was sentenced to death 11 years ago for setting a fire in his house in Allentown that killed his three young sons.

In his ruling, the judge cited numerous statements and police reports that the prosecution had withheld from lawyers for the defendant, Dennis Counterman, in violation of the Constitution and ethical guidelines. In one instance, before turning over a police interview with Mr. Counterman’s wife, Janet, the prosecution whited out her statement that her husband had been asleep when the fire started, and the prosecution did not turn over statements from neighbors that Mr. Counterman’s oldest son had a history of setting fires.

The prosecutor ”is charged to act, under the highest ethical duty,” Judge Lawrence J. Brenner said in an opinion on Monday. ”His is the responsibility to disclose freely and willingly any evidence favorable to the defendant and to prosecute vigorously to a fair and just disposition.”

In light of the withheld evidence, Judge Brenner concluded that Mr. Counterman ”did not receive a fair and impartial trial as he is entitled to under our system of justice.”

When told the news, Mr. Counterman was ”ecstatic,” one of his lawyers, Victor J. Abreu, said yesterday. He said that Mr. Counterman, who has an I.Q. in the mid-70’s and did not go beyond the ninth grade, did not understand why he would get a new trial. He remains incarcerated.

The defendant did not receive much of the exculpatory evidence until 11 years after the trial when Mr. Abreu and his co-counsel James Moreno of the privately financed Defender Association of Philadelphia, noticed at an appellate hearing that the state was cross-examining their witnesses with statements that they did not have.

The prosecutor, Richard Tomsho, who is now a lawyer in the Pennsylvania attorney general’s office, did not return telephone calls seeking comment.

Death penalty defense lawyers say that the Counterman case illustrates that prosecutorial misconduct is more pervasive than is generally realized. ”This is only the tip of the iceberg,” said George Kendall of the NAACP Legal Defense and Educational Fund Inc. ”Few courts are willing to do much about it,” he said.

At Mr. Counterman’s initial trial, the only direct evidence linking him to the fire came from his wife, who testified that she had been awakened by the sound of a lighter and then saw her husband at the bottom of the stairs with a bucket. Mrs. Counterman, who is mentally retarded, also testified that her children did not have a history of setting fires.

But on the day of the fire, Mrs. Counterman told a police officer that the couple’s oldest son, Christopher, had awakened her, told her that there was a fire, and that she had then awakened her husband. This was whited out when the police report was turned over to Mr. Counterman’s lawyers before the trial.

Mrs. Counterman told another detective a similar story, but that report was also not turned over to the defense before the trial.

Mrs. Counterman could not be located today for comment.

On the day of the fire, a neighbor told police that Mrs. Counterman had told her that a month before the fire Christopher had burned the curtains in his bedroom. This report was withheld from Mr. Counterman’s lawyers. Another person told the police that she had seen Christopher set a rug on fire. This report was also withheld.

In his closing argument, the prosecutor, Mr. Tomsho, said there was ”no factual basis” for the suggestion by the defense ”that the Commonwealth is hiding evidence from you.” He told jurors that Mr. Counterman planned ”to make it look like he was going to be a hero, if you will, and put the blame on the children.”