April 12, 2007
The Justice Game, the Alford Plea and Death Row
The Release of Dennis Counterman
By JOE DeRAYMOND, CounterPunch
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
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
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"
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.
Source : CounterPunch (Joe DeRaymond lives in Freemason, PA. He can be
reached at: jderaymond@rcn.