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On October 18, 2006, Dennis Counterman walked away from the Lehigh County Courthouse in Allentown, Pennsylvania. He had served 18 years in prison, five of them on death row, and had endured a death warrant, signed by then-Governor Tom Ridge. Since 2001, he had been sitting in Lehigh County Prison, waiting for a new trial as James Martin, the Lehigh County District Attorney, thrashed through the Pennsylvania Appeals Courts with hopeless attempts to introduce tainted evidence at trial. (See “The Prosecution of Dennis Counterman“, 2/18-2/19, 2006 CountePpunch).
He did not leave prison a free man. In return for his release from prison, the Lehigh County justice system demanded that he plead guilty to three counts of third degree murder. He was sentenced by Judge Lawrence Brenner to 18 years in prison and five years probation. Since he had already served his 18 years, he was released to probation.
Dennis was convicted of setting a fire that killed his three children and severely injured his wife, in a trial that was voided in 2001 due to prosecutorial misconduct. He has always maintained his innocence, and refused to admit guilt on the day of his sentencing. He was allowed by the Court to take an “Alford Plea”, by which he is allowed to profess his innocence, while the Court is allowed to treat him as guilty of the offense. His statement to the press on the day of his sentencing was: “I’m more frustrated than angry. I spent all this time for something I didn’t even do.”
The Alford plea originated from a 1963 North Carolina prosecution of Henry Alford, for the murder of Nathaniel Young in a dispute at a “drink house” (so described by the Winston-Salem Journal), where Henry, a black man, was visiting a white prostitute. Henry was facing the death penalty, and his attorney, Fred Crumpler, advised him to plead guilty to avoid death. Henry maintained his innocence before Judge Walter Johnston, stating, in court, to his lawyer, “You told me to plead guilty, right? I’m not guilty, but I plead guilty.” The Judge allowed Henry to plead guilty to second-degree murder and sentenced him to 30 years in prison.
Henry appealed the case on the basis that his plea was coerced by the threat of the death penalty. The Fourth Circuit Court of Appeals agreed and overturned the verdict. The Supreme Court in 1970 overruled the 4th Circuit. Judge Byron White wrote for the majority in the 5-3 decision. He stated that a defendant could plead guilty while professing innocence. Here is some language from the decision, North Carolina v. Alford, 400 U.S. 25 (1970); “the Constitution does not bar imposition of a prison sentence upon an accused who is unwilling expressly to admit his guilt but who, faced with grim alternatives, is willing to waive his trial and accept the sentence” and “Confronted with the choice between a trial for first-degree murder, on the one hand, and a plea of guilty to second-degree murder, on the other, Alford quite reasonably chose the latter and thereby limited the maximum penalty to a 30-year term.”
The Supreme Court based much of their decision on the facts of the case, which the trial court investigated. Hence, the validity of Mr. Alford’s plea was based on a non-jury determination of his guilt, despite his protestations of innocence and his statements to the court that he was accepting the sentence only to avoid the death penalty. As Justice White wrote, “In view of the strong factual basis for the plea demonstrated by the State and Alford’s clearly expressed desire to enter it despite his professed belief in his innocence, we hold that the trial judge did not commit constitutional error in accepting it.”
Since this determination, the Alford plea has become common at all levels of the criminal justice system. It has become a tool for prosecutors to avoid a trial with defendants who believe themselves innocent, and can be offered immediate freedom in exchange for this contradictory plea. The Death Penalty Information Center lists numerous death row inmates who have agreed to such terms, including one, Kerry Max Cook, who subsequently was found innocent through DNA evidence.
I met with Dennis Counterman recently in his Allentown home. He is living with his niece Melissa Borrero, and her family, which includes her three children, Andrew, 15 months, Cesario, 6 years, and Aixa, 10 years. Melissa is a stauch supporter of Dennis, has known him all her life, and testified during his 1988 trial when she was 12 years old. Their friendship and connection were evident as we sat in the living room and talked about his prison time, trial and life after release. Andrew watched and listened calmly from his crib.
I asked about his Alford plea. He said, “I am not guilty, but I could not take a chance, I don’t know how long I have left. It took 18 years to get this far, and who knows what could happen in a new trial. I have nieces and nephews I want to see. When I heard the guilty verdict (in 1988), I was just shocked, I couldn’t take a chance again.”
Melissa talked about the closeness of the family before the fire that took Dennis’ three children and 18 years of Dennis’ life. “Dennis’ house was like a refuge. I was always over there, looking after his kids. We were a close family, we would have problems like any other family, but on Sundays, we would all get together and play baseball, even my grandmother (Dennis’ mother). We could fight with each other, but don’t let anyone get between us. Dennis’ conviction really tore us up.”
Dennis said, “I just wish my mother could have seen this, seen me get out. It really took a lot out of my mother. It seemed like it drained her soul. How’s a mother supposed to feel with a son on death row for something he didn’t do? She lost weight, got skinny, had health problems.” His mother died in 2006, before his release. He could not bear to attend her funeral, “It would have broke me up too much, I really broke up at my sister’s (funeral), and I just couldn’t stand my mother’s”
Life after release has been good for Dennis, living in a house with family, but it has not been easy. Since Dennis is on probation, he was required as a matter of routine to pay for weekly drug testing. A letter from the local Amnesty International chapter to the presiding Judge, Lawrence Brenner, brought relief from the drug tests. However, the Judge said Dennis is still required to pay court costs of $1900. He has been unable to get his identification papers from the authorities. As he stated, “I can’t get my ID’s, my social security card, or anything. I have my birth certificate, but no ID. It’s like I have to prove I’m alive, you know.”
Melissa interjected, “It’s like that old joke about the man who was reported to be dead, and he showed up at a government office, told them he was alive, and they demanded ID to prove it.”
Dennis said, “That’s been the toughest thing, to get my ID.”
The payment of the fine has been put on a $45 a month schedule, not a small expense for this family of working people. Dennis said the Lehigh County collections official told him, “‘If you miss a payment, we’ll bring you to Court'”, then he went on, “I even tried to get it less, you know what I mean, but they set a certain price, and that was it.”
Key prosecution players in the first trial were richly rewarded. The First Assistant District Attorney who prosecuted Dennis in 1988, Richard Tomsho, who whited out evidence and committed serious misconduct, is today a staff attorney in the Pennsylvania State Attorney General’s office. The District Attorney in 1988, William Platt, became the President Judge of Lehigh County.
Dennis came within weeks of a lethal injection.
This system is described by Mumia Abu Jamal (who sits today in a death row cell near the cell that once housed Dennis) as follows, “Once upon a time, a politician promised jobs and benefits, like a chicken in every pot, to get elected. It was a sure-fire vote getter. No longer. Today, the lowest level politico up to the President uses another sure-fire gimmick to guarantee victory. Death. Promise death, and the election is yours. Guaranteed, frame on! A vote for hell in the land of liberty with its over one million prisoners is the ticket to victory.” (From “A Bright, Shining Hell”, on “Banned – Radio Commentaries by Mumia Abu Jamal”)
Dennis has been released from prison, but he is not free. He has been forced to make choices while “faced with grim alternatives”. For Henry Alford, it was looking at a North Carolina trial in 1963 in which a guilty verdict meant death. For Dennis Counterman, it was a Lehigh County, Pennsylvania trial in which he would face another prosecution that would demonize him. Witnesses would be coached. The current Lehigh County Prosecutor, James Martin, and First Assistant Maria Dantos would have used all the power of the State to keep him in prison till they could put him to death.
Dennis is out of prison, which is a relief for him, for his family and supporters. We are all a long way from justice.
JOE DeRAYMOND lives in Freemason, PA. He can be reached at: firstname.lastname@example.org