By RAYMOND BONNER The New York Times
August 302001

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.”