New Trial for Alleged Arsonist Dennis Counterman

August 27, 2001

The Lehigh County Court of Common Pleas has granted Dennis Counterman a new trial.  This is the 1st time in the history of the Pennsylvania Post-Conviction Relief Act that the Court of Common Pleas has granted a capital defendant a new trial. 

Jim Moreno and Vic Abreu unravelled a web of prosecutorial misconduct that so far has subjected this man, whom Dunham believes is innocent, to 13 years on death row. The PCRA court granted relief on Brady v. Maryland (withholding exculpatory evidence), ineffective assistance of counsel for failing to investigate exculpatory evidence; ineffective assistance of counsel for failure to present character evidence; and then granted a new sentencing hearing (just in case) on the grounds that counsel was ineffective for failing to investigate and present mitigating evidence. 

Dennis Counterman was convicted of arson and murder for a house fire in which 3 of his children died.  It now turns out, Dunham says, that not only is Dennis innocent of murder, but that no crime even occurred. Dennis' 3 kids died in a Saturday morning house fire in 1988. 

Neighbors reported seeing Dennis in his back yard in his underwear screaming for help because his kids were inside.  The fire was actually accidentally started, most likely by Dennis' son Christopher, one of the children who died in the fire. 

So, Dunham says, Dennis Counterman not only lost his 3 kids in the fire, but he suffered the additional nightmare of being wrongly sent to death row as a result.  This gross miscarriage of justice stole Dennis' life away from him and caged him in 23-hour/day confinement for something he didn't do, even after the fire had already taken his children. 

The fire department believed that the fire was set and accelerants must have been used because of the speed with which the fire spread through the house.  Jim and Victor presented highly reliable expert testimony (including a stunning fire safety videotape) that demonstrated that the type of sofa that was in the Counterman's house acts as its own accelerant, and proved that the fire theories relied upon by the local fire department to declare the fire an arson were outdated and have long since been repudiated.  There was no arson; the fire was an accident. They also showed that once the police and prosecution determined that an arson had occurred, they focused their attention on the most likely suspect and went about framing him by suppressing all sorts of exculpatory evidence.  This included everything from withholding evidence documenting that one of the kids had a history of firestartin and in fact had burn scars from a prior accidental fire that he had started to evidence that that their lead witness -- Counterman's mentally retarded wife told investigators at the time of the fire that Dennis was asleep when the fire started (he had worked the night shift the evening before) and that she had awakened him to alert him that the house was on fire. 

Under the joint influence of police interrogation and heavy medication for severe burns, she subsequently gave a statement that Dennis had set the fire.  But a neuropharmacologist recently established that the drugs used to treat her burns left her particularly susceptible to implanted memories and that her mental retardation substantially compounded the risk that she would have a confabulated memory based upon leading questions and intimidation by the police. 

When the prosecution eventually provided the defense  with the statement  "given" by Counterman's wife, it whited out the portion of the statement that said she had woken up Dennis to tell him the house was on fire. 

The 1st set of PCRA hearings was in January.  After those proceedings, Jim and Victor obtained from the police files a statement from Children & Youth Services concerning Christopher's history of starting fires -- something the police & prosecution denied as recently as January 2001 that they had ever received. The defense at trial was that the fire was an accident, and this exculpatory evidence from a neutral source obviously would have been tremendously valuable. 

The Court wrote:  "This Court notes that the District Attorney is a constitutional officer and is charged to act under the highest ethical  duty.  He acts not just as an advocate for one side.  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."  It then held that the prosecution has an ethical, not just constitutional duty, to avoid trial by ambush." 

Dunham says that this case -- like that of William Nieves -- highlights the grave dangers of the death penalty, and our incomplete responses to those dangers.  Dennis' case is significant not just because he is innocent, but because the public still holds to the misperception that the question of executing the innocent can be solved by making DNA testing available.  Dennis Counterman is innocent but DNA would not have proven it. William Nieves is innocent but DNA would not have proven it either. The other 2 men released from Pennsylvania's death row -- Neil Ferber and Jay Smith -- also won their freedom only because of the discovery (well after the fact) of police and prosecutorial misconduct -- not DNA testing. 

This is the Pennsylvania Capital Representation Project's 30th win. 

(source:  Defender's Association of Phil., Fed. Habeas Unit) 

UPDATE:  Counterman's retrial was finally scheduled to begin December 11, 2006.  He spent over 5 years in the local jail after his conviction was reversed, waiting for retrial, while the local prosecutor mounted appeal after appeal, trying to get bogus evidence into the record.  Exhausted and unwilling to risk another trip to death row. Dennis Counterman entered Alford pleas to three counts of third degree murder, was sentenced to time served (18 years, 5 of them on death row), and was released.  The state got a technical finding of guilt and immunized itself against a lawsuit.

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