Feb. 19 TEXAS: Death penalty at issue in criminal court race ---- Leadership debated as Price faces presiding colleague Keller Judge Tom Price used to be a law enforcement hawk. Now, he describes himself as a leader who has moderated to reach his goals at the twilight of his career. "Ariel Sharon was a war hawk who mellowed to the point that he wants peace," Judge Price said, comparing himself to the Israeli leader. "Tom Price has mellowed to the point that he wants there to be a society in which all persons are safe." In his campaign to oust Sharon Keller from the position of presiding judge of the Court of Criminal Appeals, Judge Price is offering himself as a moderate alternative. He argues that Judge Keller is too conservative to be fair and that fellow judges have lost confidence in her. Judge Keller said her opponent has picked an unusual time to challenge her in next month's Republican primary. The nine-member court has differences of opinion, but it is not the mutinying crew that Judge Price describes, she said. "The judges trust my ability to do my job properly," Judge Keller said. The court - the state's highest criminal court - has been at the center of debate over Texas' use of the death penalty. But this race also turns on internal court politics and a complicated history between Judge Keller and Judge Price, who are both from Dallas. She once practiced before him in the county courts, and she defeated him when he ran against her for presiding judge 6 years ago. Judge Price once said that in defending the court's refusal to order a new trial for a man whose guilt was refuted by DNA tests, Judge Keller made the court "a national laughingstock." She punched back, saying he didn't show up often at the Austin courthouse. Both say their professional relationship is now mostly smooth. However, fellow judges don't think she shows leadership, Judge Price said. "My opinion is that Judge Keller has lost the confidence of the court," he said. Judge Keller considers that an exaggeration. Judge Keller has taken the brunt of criticism for U.S. Supreme Court rulings that reversed her court's rulings on death-penalty cases involving mentally retarded defendants, innocents and sleeping defense lawyers. In a widely circulated TV interview, about a convicted man whose DNA test proved he did not commit a rape, Judge Keller said she didn't know how the man, Roy Criner, could prove his innocence. She insisted the test didn't overwhelm the other evidence. Judge Keller said the court's jurisprudence on those subjects has evolved. She considers innocence claims, but her decisions tend to track the recommendations of lower-court judges, she said. "Our case law says we are supposed to defer to the trial judge," Judge Keller said. But in a recent case, from January 2005, Judge Keller voted against one judge's recommendation. That judge ruled that recanted testimony in a sexual assault case proved the suspect's innocence. A majority of judges on the Court of Criminal Appeals agreed, overturning his conviction. Judge Price said that case shows Judge Keller favors prosecutors. "Judge Keller goes whichever way helps the state," said Judge Price, who voted with the majority. George Dix, a criminal law professor at the University of Texas at Austin, said Judge Keller often rules for prosecutors, but for sound legal reasons. "Judge Keller has a very high standard for a defendant attacking a conviction after the fact," Mr. Dix said. "Particularly for a defendant who attacks on the basis of actual innocence." Williamson County District Attorney John Bradley said Judge Price's criticism of Judge Keller isn't genuine. Mr. Bradley, who worked for the appeals court, called Judge Price a "political chameleon" who sometimes dissents solely for the political value. Judge Price dismissed Mr. Bradley's criticism, calling him "12 miles to the right of Judge Keller." Lawrence Meyers, a fellow judge on the appeals court, said the 2 candidates "are ideologically at different ends of the spectrum." But the contest comes down to how to administer the court, he said. "I just think that she may have been too heavy-handed and that he would have deferred more to the court for certain things," Judge Meyers said. Judge Price said he's willing to use the presiding judge's soapbox more than Judge Keller does. He said the state's prison population of 151,000 is too high, partly because judges are sending too many probationers to prison for technical violations. Judge Keller said Judge Price is talking about something she's already done. She's a member of the state council that advises prisons about probation. "This is something I've been interested in for a long time, but I would not tell a trial judge what to do," she said. ******************** A year after pregnant woman, son went missing, trial to open ---- FW: Attorney says police tricked suspect into confessing to slayings When Lisa Underwood missed her baby shower a year ago, friends and family immediately knew something was wrong. The deli owner was the doting mother of a 7-year-old son and thrilled about adding a little girl - to be named Marleigh - to her family. Those who knew the 34-year-old said she wouldn't just disappear from her Fort Worth home without a reason. A few days after that planned celebration, the remains of Ms. Underwood and son Jayden were found in a shallow grave in Denton County and the suspected father of her unborn baby was in jail. The capital murder trial of Stephen Barbee, who could face the death penalty if convicted, is scheduled to begin Tuesday, just a couple of days after the one-year anniversary of the killings. "We miss them very much," said Holly Pils, who founded Boopa's Bagel Deli with Ms. Underwood. "We keep going because of them." A sign on the front door of the popular north Fort Worth deli says that the shop will be closed today on the anniversary of the deaths. "They were taken from us on this day one year ago," the sign says. "We miss them very much." Inside the restaurant, on the rack for coats and aprons, are the names Holly, Lisa and Jayden in yellow and red wooden letters. Ms. Pils, who declined to comment about the trial and could be called as a witness, said she never considered taking the other names down. "They built this," she said, referring to the restaurant. "We did it together." The deli took its name from Jayden's nickname: Boopa. Bill Ray, one of the attorneys for Mr. Barbee, said he has a more difficult case because of his client's confession a few days after Ms. Underwood, 7 months pregnant, and her son disappeared. He would not comment on his trial strategy, but he said he believes that detectives lied to Mr. Barbee, 38, and tricked him into confessing. "There is a right and the wrong way," Mr. Ray said about detectives' approach. He also said he is especially suspicious that one of the confessions took place in the men's restroom. Prosecutor Kevin Rousseau declined to comment on details of the case, which is the policy of the Tarrant County district attorney's office. Ex-wife Patricia "Trish" Barbee, who had been married to the suspect for about two months when he was arrested, had defended him at that time. The couple divorced early this month, and she could not be reached for comment last week. In the divorce settlement, Mr. Barbee retained his stake in a pair of businesses and among other property, received a travel trailer and timeshare property in Florida - items he will never get to use again if convicted. Ron Dodd, a friend and business partner of Mr. Barbee, was indicted on two counts of tampering with physical evidence. Police said Mr. Dodd helped Mr. Barbee the morning he was disposing of the bodies. Both men gave detailed statements to detectives after police detained them, and Mr. Barbee confessed to the killings and revealed where he hid the bodies, according to police records. Those documents give the men's accounts of what happened to Ms. Underwood and Jayden. Mr. Barbee called Mr. Dodd late on Feb. 18 or early Feb. 19, 2005, explaining that he needed a ride. Mr. Dodd drove his business partner to North Riverside Elementary School in Fort Worth, just a few blocks from Ms. Underwood's house, and dropped him off. Later, Mr. Barbee asked for a ride home and told Mr. Dodd he had visited a friend he had "made pregnant" and that "I just can't do it." Mr. Dodd told police he assumed that Mr. Barbee planned to break up with the woman. Later, Mr. Barbee called his friend again for another ride to the school. During one of those trips, "Lisa let him in and they began to argue because he would not leave his wife, Trish," according to Mr. Barbee's statement to police. While arguing, Mr. Barbee said, Ms. Underwood kicked him, and he responded by punching her in the face several times, giving her a bloody nose. Mr. Barbee said he pinned her on the floor and suffocated her. During the fight, Jayden began screaming. Mr. Barbee then put his hand over the boy's mouth and nose and suffocated him. Mr. Barbee took Ms. Underwood's car and drove the bodies to rural Denton County to bury them and then abandoned the stolen SUV in another spot. He called Mr. Dodd again for a ride back home. Possible evidence The court file suggests that prosecutors plan to bring up Mr. Barbee's past in an attempt to convince the jury that he deserves the death penalty. This includes an attack on a motorist during a road rage incident, threats against Mr. Dodd and frequent physical abuse of his 1st wife. Also, the documents said that when Mr. Barbee's 1st wife mentioned divorce, Mr. Barbee threatened to kill her and run her body through a wood chipper to dispose of the evidence. The document said that Mr. Barbee even talked to another person about hiring that person to commit the crime. (source for both: Dallas Morning News) *************** Cobb trial delayed indefinitely The capital murder trial of Christopher Cobb, scheduled to start with jury selection next week, has been delayed indefinitely, and the 400 prospective jurors who got a summons to be at Love Civic Center on Tuesday can ignore it. "We cannot proceed with any further efforts in this trial, including picking the jury, and that stay will remain in place until we are informed differently, and that will not happen by Tuesday," Allan Hubbard, an aide to District Attorney Gary Young, said. "Anybody who got a summons for Tuesday should now not report." The state is seeking the death penalty for Cobb, 23, who is accused of killing his great-grandparents, Charley Smith, 89, and Ruth Smith, 88, on Aug. 29, 2004, at their residence inside the Reno city limits in the 3700 block of Smallwood Road, near Elk Hollow Golf Club. The 6th Court of Appeals in Texarkana ordered the delay Wednesday after receiving from defense attorney Steven Miears of Bonham an application for a writ of mandamus. The trial judge, District Judge Jim Dick Lovett, twice rejected motions by Miears seeking to have Young and his staff recused because Young was Cobb's attorney in a divorce in 2000 and in a felony forgery charge in 2003. A 20-page document Miears filed with the court Monday sought to force Young to recuse himself and, barring that, for Lovett to be ordered to disqualify Young and hire a special prosecutor to take his place. Wednesday, Miears hit pay dirt. The court ordered a stay until its judges have time to review the application for writ of mandamus. It was Thursday night before Young and his staff learned that the Cobb trial had been put on hold; Lovett learned of it Friday morning, when he returned a telephone call from the district attorney. Neither was pleased that he hadn't been informed of the ruling on the same day of the ruling. Young called the appellate court Friday morning to confirm the news, then sent someone on a 90-minute trip to Texarkana to hand-deliver his response to Miears' attempt to halt the trial until judges can finish a study of the request for a writ. The district attorney hoped to get the court to complete the review by Friday afternoon and reject the defense assertion that Young shouldnt prosecute someone he once represented in a divorce trial and against felony forgery charges. By late Friday afternoon, it became obvious that wasnt going to happen. "It is now apparent that a ruling to reverse the stay, even if it is forthcoming, is not going to happen in time for us to proceed on Tuesday," Hubbard said. Most likely, the 400-person jury pool selected for the Cobb trial will be discarded, and if and when the word comes to proceed, District Clerk Marvin Ann Patterson will be asked to order up a new jury list once Lovett sets a new trial date. Other court business had been put on a back burner for a month or more while the Cobb trial was going on. Now, Young says, he will look at other pleadings and trials that could be put on the docket. Miears said if Young prosecutes the case, his client would suffer irreparable harm. His client, he said, "faces the possibility of being cross-examined by the very person to whom he formerly communicated in confidence with the attorney-client privilege." (source: Paris News) ***************** Michael Moore trial continues to reverberate in Williamson County----Convicted killer leads investigators to victim's wedding rings after pleading guilty Michael Moore gave prosecutors what they wanted: a murder conviction, a confession, no hope of appeal and, quietly, on Tuesday he led them to the victim's wedding rings he'd buried beneath a cactus in western Williamson County. But Moore's trial is being called remarkable for another reason. His acquittal of capital murder by a jury was the first time prosecutors in the tough-on-crime county had sought the death penalty and lost. "I was blown away," said Steve Brittain, one of Moore's attorneys, of the moment he heard the not guilty verdict. "Relief is a really good word. I never considered that a possibility, not up there (in Williamson County), especially." Jurors did find Moore guilty of felony murder and other charges for killing Christina Moore, no relation, in 2003. He received four concurrent life sentences after an unusual arrangement that saw him plead guilty after he'd been convicted. To show capital murder was committed, prosecutors need to prove intent to kill. Defense attorneys across Central Texas know Williamson County as a tough place to defend a client. District Attorney John Bradley's staff is well-respected and aggressive, known for seeking the maximum sentence whenever possible. The capital murder acquittal was not only unexpected but unprecedented and has been a topic of discussion all week. "I was curious how the community would react," Bradley said in an interview Thursday. "I've probably had 100 people come up to me . . . Almost every single one of them said, 'Thank you for catching Michael Moore.'" The highly anticipated trial, which ran nearly four weeks andincluded 6 days of testimony and two days of jury deliberation, hinged almost exclusively on circumstantial evidence. Jurors convicted Moore on Feb. 10, and he abruptly pleaded guilty Monday, ending the trial as the sentencing phase was to begin. The next day, after consulting with his lawyers, Moore led investigators to his hiding spot for Christina Moore's missing wedding rings, which had figured prominently in testimony throughout the trial. "Talk about a spooky moment when all of a sudden there were her rings," said Bradley, who would not provide more specifics about where the rings were buried.The rings will be returned to Christina Moore's family. Christina Moore was 14 weeks pregnant when Michael Moore slit her throat as she knelt on the floor of the bedroom closet in her Round Rock home, her right arm restrained by a handcuff. Two cuts, more than an inch deep at some points, severed one major artery and damaged another. Despite those details, the defense attorneys Brittain and Allan Williams raised enough doubt that jurors could not agree that Michael Moore intended to kill her. "Most of us felt that the fact that there were two cuts, and the depth of the cuts made it intentional," said Jerry Rodriguez, the presiding juror in the case. But other jurors thought Moore did not intend to kill Christina Moore when he entered the house, Rodriguez said. Jurors also struggled with the difference in size between bloody boot prints in Christina Moore's bathroom and the boots that Michael Moore owned, Rodriguez said. The bloody print came from a size 10 Ariat brand boot, a FBI expert testified. Michael Moore's Ariat boots are a size 12, his ex-wife and former stepdaughter-in-law testified. And testimony by Chesley Pickel, a habitual felon currently in prison who said Michael Moore confessed to the crime while they were both in custody at the Williamson County Jail, threw more doubt into the mix. Both sides acknowledge that Pickel wasn't particularly credible, but the jurors were swayed by some of his testimony. "Chesley Pickel's testimony indicated that when (Moore) went in he initially meant to kind of scare her," Rodriguez said. "Something happened and then he killed her. That was kind of the difference as we saw it." Defense attorneys also tried to raise doubt about Moore's guilt by noting no DNA or fingerprints linked him to the crime and that an eyewitness who placed him at the scene didn't describe a man with a large tattoo on his arm, which Michael Moore has. Investigators who handled an earring found at Michael Moore's trailer that is similar to one Christina Moore wore at her 2000 wedding did not wear gloves, thus contaminating the evidence and erasing what might have been a definitive physical link from suspect to victim. Then there was the prosecution's decision to withdraw charges related to Christina Moore's unborn son, after using for the first time a 2003 law that defines a fetus as an individual and allows charges for death or injury to an unborn child. Moore's lawyers say he did not know Christina Moore was pregnant; proving he killed the fetus intentionally or knowingly was key to those charges. Bradley's team withdrew those portions of the capital murder chargejust before the jury received the case, with Bradley later explaining he didn't want to risk having a conviction overturned on appeal. Jurors, however, never heard an explanation for the change, which they noticed with surprise and remained puzzled about, Rodriguez said. With that portion of the charges withdrawn, the jury was not allowed to let the change affect any part of its deliberations. "What's stunning about their ability to raise reasonable doubt there is that the facts clearly show that he intentionally slit her throat despite his jailhouse confession to the contrary," said Bob Phillips, a defense lawyer who has practiced in Williamson County for more than 20 years but was not affiliated with the Moore case. "Somehow Brittain and Williams raised enough reasonable doubt on that question to avoid the needle." Williamson County has sent seven people - all men - to death row since 1923, according to statistics from the Texas Department of Criminal Justice. Six have since been executed. In other capital murder cases, prosecutors either opted not to seek the death penalty or defendants pleaded guilty to lesser offenses to avoid the death penalty. Even Bradley thought that flawless conviction record might change with Michael Moore because of the case's circumstantial nature. "It was, from the beginning, a risky case to prove capital murder," Bradley said. "But that is not a reason to avoid it." Capital murder juries are more likely to render guilty verdicts because jurors are screened to gauge their support of the death penalty, with those who adamantly oppose it being excluded, said Rob Owen, an adjunct professor at the University of Texas School of Law. In a law-and-order county such as Williamson, the peer pressure to convict on the most severe charge is even greater, especially on particularly heinous crimes, he said. "I think the jurors were really courageous," Owen said, "because I think that it is often difficult to follow the law when the community is understandably agitated about a terrible crime." Jurors deliberated more than 17 hours over 2 days before delivering a verdict. They were suddenly excused Monday following Moore's plea arrangement, a situation that apparently has happened just once before in a Williamson County capital murder case. Moore agreed to waive his right to an appeal in exchange for sentences that make him eligible for parole in 30 years rather than 60. "I would call it legal insurance," Bradley said. "It makes it much more difficult for him to be making claims that he is innocent." Williams and Brittain advised Moore to take the plea agreement because it would end a separate, pending case - aggravated robbery and felony firearms possession - that might've meant consecutive life sentences. "He was looking at life stacked on life," Williams said. "It was just in his best interest from a rational point of view." At the end of the trial, Christina Moore's family got to hear both a jury and her killer say "guilty," defense attorneys kept Michael Moore off death row and prosecutors held on to their reputation of being among the toughest in Central Texas. "Ultimately," Bradley said, "I would be flattered that people would consider four life sentences falling short." (source: Austin American-Statesman) USA: An Issue of Competency----The Sentencing of Zacarias Moussaoui Last week, the selection of the jury that will sentence Moroccan-born Canadian citizen Zacarias Moussaoui began. Moussaoui is the only person charged with any connection to the September 11 terrorist attacks on the United States. Originally, he was nicknamed the would-be "20th hijacker." But, as with several other prisoners alleged to be enemies of the United States, the government has dramatically altered its characterization of the charges against him as his case has progressed. Moussaoui is facing the death penalty. Yet all the evidence suggests that he is no more mentally competent to be executed, than he was to enter into an agreement with the government to plead guilty, despite the lack of any benefit to himself from doing so. To say this isn't to diminish Moussaoui's status. He's a dangerous man who should be locked up - a sworn enemy to the United States. Indeed, enemy combatant status which would keep him locked up in military custody until the end of the war on terrorism would be appropriate. The History of the Case: Another Government Bait-and-Switch In April 2005, Moussaoui pled guilty to involvement in an al Qaeda conspiracy to hijack airplane and kills Americans. He also signed a government-prepared statement of facts relating to the case - facts the government said it was prepared to prove if his case had gone to trial. The Statement of Facts indicates a troubling bait-and-switch on the government's part - reminiscent of several other government "war on terror" bait-and-switches. The 1st such bait-and-switch occurred when, in 2004, the government - after insisting on Yaser Hamdi's dangerousness - entered into an agreement with him, that led to his release to Saudi Arabia. The 2nd bait-and-switch occurred in 2005, with respect to the Jose Padilla case before the U.S. Court of Appeals for the Fourth Circuit. The government isn't charging Padilla with the "dirty bomb" conspiracy it has long imputed to him in press statements. Instead, it wants to charge Padilla on different facts. And the switch was so striking that even the U.S. Court of Appeals for the Fourth Circuit sought to reconsider the case "in light of the different facts that were alleged by the President to warrant Padilla's military detention and held by this court to justify that detention, on the one hand, and the alleged facts on which Padilla has now been indicted, on the other." Moussaoui was originally indicted as being directly involved in the 9/11 terror attacks. But according to the Statement of Facts, Moussaoui's 9/11-related crime wasn't conspiracy to commit hijacking and murder. Moussaoui, it seems, was not involved in the planning or execution of 9/11, though he did know about it. Moussaoui is facing death for failing to reveal to FBI agents what he knew about the 9/11 plot when questioned as to why he was in the United States taking flying lessons. The government says if he had told FBI agents the truth, the 9/11 attacks might have been thwarted. His defense attorneys -- back on the case now, after the judge found him not competent to represent himself at the sentencing -- are sure to bring up the fact that FBI agents who arrested Moussaoui in August 2001 (on a visa violation when the flight school's suspicions were aroused and reported to the FBI ) did not believe he was telling them the truth and had many grounds for suspicion. Agents believed that he was taking flight lessons in preparation for hijacking planes. They asked prosecutors for a search warrant for his computer but were denied. Prosecutors also refused to authorize a criminal investigation into Moussaoui's activities. FBI Agent Colleen Rowley testified to these events at the 9/11 Commission hearings. The government had the means to find out more about Moussaoui prior to the attacks but did not do so. And, one has to wonder, even if Moussaoui had described the 9/11 plot in detail, would he have been believed? Would he have had more credibility with prosecutors than the FBI agents who voiced their concerns? Serious Questions About Moussaoui's Competency Remain Moussaoui's decision to plead guilty - a decision not accompanied by any promise of leniency on the government's part and made against the advice of defense attorneys- made little, if any, sense for Moussaoui. There was strong evidence that Moussaoui was not mentally competent to make that agreement (the law defines competence as the ability to understand the nature of the charges and the proceedings and to assist defense attorneys). Indeed, his defense attorneys had presented expert psychiatric testimony to this effect -- suggesting that he was suffering from a delusional disorder, perhaps even schizophrenia. However, U.S. District Court Judge Leonie Brinkema found the prosecution's experts more credible than those of the defense, ruled Moussaoui competent, and accepted his plea. But in spite of Judge Brinkema's ruling, Moussaoui's competence is doubtful. Ever since his 1st court appearance in December 2001, his behavior in the courtroom has been erratic, marked by insults to the judge and his lawyers, rants against the United States, and boasts of martyrdom. Now that a sentencing jury is being selected, the cause for doubt about Moussaoui's competence is only intensifying. On Tuesday, Judge Brinkema, tired of his outbursts, ordered him out of the court for the duration of the jury selection process; yet, on Wednesday, she allowed him back in. These very decisions undermine her prior competency finding. The erratic behaviors Moussaoui has exhibited throughout proceedings continue even now, when his life is at stake. Otherwise, Judge Brinkema Has Ruled Well and Fairly Up until this stage in the proceedings, Judge Brinkema has been a model jurist. A former prosecutor, she prides herself in running a fair courtroom. And she has gone out of her way to protect Moussaoui, in spite of his tirades against her. For instance, she ordered the government's witnesses to be present in court so that Moussaoui's Sixth Amendment right to face his accusers would be respected, but was overruled by the U.S. Court of Appeals for the Fourth Circuit. In spite of Moussaoui's repeated "dismissals" of his public defenders, she ordered them to stay on the job for the sentencing, and to do what they can to protect his interests even as he rants against them and refuses to cooperate with him. In the rules she has crafted to govern the sentencing, she has tried to balance national security interests, the reality of intense publicity, and the public's and defendant's rights to an open trial. Judge Brinkema even ruled that as Moussaoui had no direct involvement in the 9/11 attacks (recall that he was in federal custody, as of late August 2001), he could not face the death penalty. But in this matter, she was also overruled by the Court of Appeals. Throughout this case, Judge Brinkema has tried to ensure that, despite the tremendous prejudice created by the government's initial "20th hijacker" claim, the government must try Moussaoui under the laws and rules applicable to any other criminal defendant. That is laudable. Judge Brinkema Should Hold a New Hearing And Reverse Herself on Competency Now, Judge Brinkema is left in a quandary: If she sticks by her prior competency rulings, then a jury may send a mentally incompetent man (representing himself) to his death not for what he did--but for what he did not do. But she can hold a new competency hearing and reverse herself. If found incompetent, Moussaoui can't be sentenced until he is competent--which, barring some miracle, would likely be never. Maybe then the government would do the reverse of what they did with Jose Padilla: remove Moussaoui from the court system and turn him over to the military as an enemy combatant. A case that has monopolized the court's docket for almost 4 1/2 years will be ended, and a dangerous man will be out of the limelight he craves. This is not likely to happen. A jury is being seated, and despite the many battles fought for a man who doesn't deserve the best our legal system has to offer, he is about to face the worst possible scenario--death for a horrific crime in which he had no direct involvement. The government will be asking jurors to sentence Moussaoui to death to avenge the deaths of thousands of Americans. Ironically, the sentence may give him the martyrdom status among his extremist peers that eluded him when he could not pull off any terrorist acts on his own. (source: CounterPunch - Elaine Cassel practices law in Virginia and the District of Columbia and teaches law and psychology. She doesn't like being lied to. Her new book The War on Civil Liberties: How Bush and Ashcroft Have Dismantled the Bill of Rights, is published by Lawrence Hill. ******************* Dick Cheney managed to shoot a rare Republican bird 2 days before the hunting trip with Dick Cheney, I ran into Harry Whittington in downtown Austin, a couple of blocks from my office, and we chatted for a minute or 2. On parting, I think I said something like "hang in there," neither of us having the faintest expectation of how literally he would soon be heeding my advice. Much has since been written about the first accidental shooting victim of an American vice president and one of modern Texas' pioneer Republicans. By today's standards, however, Whittington is fortunately atypical. For starters, he hasn't been trying to purchase state government, or even a small chunk of it. Unlike many contemporary GOP contributors, who don't even try to disguise the fact that they regard officeholders as hired hands, he has been very selective and modest with recent political donations. Also significantly, he doesn't view prisons as lockbox repositories for all of the state's crime problems, and he doesn't believe the death penalty should be an assembly-line, one-size-fits-all process. On issues dear to his heart, particularly care for the mentally retarded, Whittington is much more of a "compassionate conservative" than that better-known Republican from Texas who rode the phrase into the White House and then seemed to forget it. He also has little regard for demagoguery, a characteristic that distinguishes him from a host of political figures - Republican, Democrat and independent, including some currently seeking high office. Whittington received prominent media coverage in the early 1980s, when, as an appointee of Gov. Bill Clements to the Texas Board of Corrections, he played a key role in forcing prison reforms necessary for Texas to comply with a federal court order that had found conditions in state prisons overcrowded, inhumane, brutal and unconstitutional. Not only did he have to convince budget-conscious legislators that massive changes were needed, he also had to fight an entrenched prison bureaucracy that had allowed conditions to deteriorate. At first, as the only Republican on a 9-member board made up of officials who had routinely rubber-stamped prison staff recommendations, it must have been a pretty lonely fight for Whittington. But he was tenacious, associates recall. "He fought like a wounded tiger" for his view, said attorney Pike Powers, who assisted the state attorney general's office in the prison litigation. Whittington, who has a mentally retarded daughter, also worked to segregate mentally retarded inmates from the general prison population. And long after he left the prison board, he asked Gov. Rick Perry in 2001 to sign a bill banning the execution of mentally retarded convicts. Perry vetoed the bill, but the practice was outlawed by the U.S. Supreme Court a year later. Whittington didn't have much, if any, public comment on Perry's veto at the time, even though the governor turned it into a pseudo-political event by assembling several people whose loved ones had been murdered by mentally retarded death row inmates. Several years earlier, however, Whittington had given another perpetrator of anti-crime demagoguery a public tongue-lashing. Democrat-turned-Republican Kent Hance, in an unsuccessful race for governor in 1986, called a news conference to claim that some of the improvements that the state was considering in the prison system, as conditions for ending the long-running lawsuit and making prisons more humane, would be coddling criminals. Whittington interrupted the meeting to call Hance to task in front of the newspeople. "I hate to see a Republican mislead the voters on an issue that has become so important to me," he said. Whittington later served on the Texas Public Finance Authority Board and is now on the Texas Funeral Services Commission, to which he was appointed by former Gov. George W. Bush. He made more news in Austin last year by winning a long-running legal battle over land, owned by his family, that had been condemned by the city near the downtown convention center. Whittington, 78, is a Republican. He also is principled, independent, maybe even stubborn. I hope he "hangs in there" for a long time to come. (source: Clay Robison, Houston Chronicle) ***************** Ex-FBI chief pulls no punches----Conservative at the helm during Waco siege critical of prisoner abuse and Bush wiretaps William Steele Sessions, onetime FBI director and former Texas federal district judge, is no stranger to controversy. Now, sitting in a richly appointed law office, Sessions, 75, expresses opinions that are controversial in light of his professional and personal background. He dishes out criticism of President Bush's domestic spying program, the mistreatment of prisoners in the war on terrorism and prosecutorial misconduct in death penalty cases. Yet Sessions is a conservative Republican, death penalty advocate and the father of U.S. Rep. Pete Sessions, R-Dallas, who defends Bush and the domestic surveillance policy. But when it comes to the law, Sessions looks at the facts and follows his own mind. "I have long since learned not to be afraid to take a position in what you believe and what you think is ethical and what's right and what's legal. Make your own decision, and tell people where you stand," he said. Checkered term at FBI In 1993, he was accused of abusing his FBI position for personal benefit. The charges included building a security fence around his house and using FBI planes and cars for personal reasons. He was fired by President Clinton after refusing to resign, contending that to do so would reduce the FBI's independence. Sessions' term at the FBI included the 1992 confrontation at Ruby Ridge, Idaho, at which an FBI sniper killed an unarmed woman, and the 1993 deadly law enforcement siege of the Branch Davidian compound near Waco. Problems with the FBI crime lab also surfaced. "There were some in the agency who didn't like him and were out to get him," said Philip Heymann, a Harvard Law professor who was deputy attorney general when Sessions left the FBI. "He behaved with absolutely remarkable style." Sessions prefers not to talk about the political battle over his job. "I have very strong feelings about how I conducted myself," he reaffirmed, adding that many Texans strongly backed him. "They understood what I was talking about." William Webster, who preceded Sessions at the FBI before moving to the the CIA, said Sessions simply seemed puzzled by the accusations of abusing FBI funds. Sessions "still has a very warm feeling about" the FBI, Webster added. "It's almost as if it didn't happen." Born in Arkansas, Sessions moved to Texas after joining the military during the Korean War. He married his wife, Alice, graduated from Baylor University and joined a Waco law firm. His government service began in 1969, when he served in the Justice Department's criminal division. 2 years later, he was appointed U.S. attorney for the Western District of Texas. In 1974, he was named federal judge, becoming the chief judge in 1980. He presided over the trial dealing with the assassination of federal Judge John Wood. In 1987, President Reagan picked Sessions to head the FBI. His 'highest honor' Being a judge was "the highest honor that's ever come to me. Leaving the court is not something I wanted to do," he said. But Sessions also is proud of his work at the FBI. Among other things, he automated the bureau's fingerprint registration system. "The FBI had 90 million fingerprint cards. Cards!" he exclaimed. Today, he added, "we can do in a matter of seconds what might have taken weeks, or months, or never." Sessions also brought to the FBI forensic use of DNA. He said he also improved the treatment of women and minorities inside the bureau. "That took great courage and it was the right thing to do with the FBI," Heymann said. Sessions said he cherishes the public's respect of the FBI and the "hard, hard, hard work" of the employees, especially because "somebody is always angry at the bureau." Now, various legal groups ask Sessions to lend his expertise on controversial issues. Texas inmate Delma Banks Jr. was 10 minutes away from being executed in February 2004 when the U.S. Supreme Court stepped in. The court overturned the death sentence after agreeing with a legal argument framed by Sessions that there had been prosecutorial misconduct. Last year, when congressional conservatives threatened to impeach federal judges whose views they opposed, Sessions spoke out for an independent judiciary. He called it repugnant to suggest that judges decide issues based on politics. Wiretapping experience Recently, he and other legal experts challenged Bush's authority to conduct domestic spying. They maintained the program "lacks any plausible legal justification." Sessions said this is the only issue he has seriously debated with his son, the congressman. "I don't ever put anything on him. I don't lobby him," Sessions said. The congressman said he sees his father's legal activism as "trying to push the envelope. He's always been that kind of a person." Sessions spoke at the recent funeral of Coretta Scott King. Decades after the agency spied on the Rev. Martin Luther King Jr., Sessions' friendship with Mrs. King led to the FBI's participation in the King Holiday Commission's Youth Against Violence project. They met shortly after he became FBI director. She invited him to Atlanta for the King holiday celebration. "I could not believe that she was, in her generosity and forgiveness, approaching an agency head whose agency had caused her particular grief," Sessions said, referring to the FBI's surveillance of King. "I thought, if she's big enough to do that, I'm big enough to go." (source: Houston Chronicle) ************** In supporting capital punishment, U.S. is in bad company The Public Record There are very few bastions of popular support for capital punishment left in the world (apart from the United States, of course). However, there are still a few. For instance, in Southeast Asia people have very strong opinions on the matter: 80 % of Thailand's population supports the practice of putting convicted criminals to death, for example. Amnesty International estimates that there are about 955 people on death row in the country. In Singapore, the international community puts its best guess at about 8 (which, in such a small country, results in about 13.57 executions per 1 million people, according to Amnesty). How many people are executed each year? Amnesty estimates that about 3,797 people were executed in 2004. By now it shouldn't be a surprise who's responsible for such a bulk of government-imposed death (though that distinction in itself would normally range beyond what is classified as "capital punishment"): the People's Republic of China is responsible for at least nine out of every 10 executions annually. Alongside it on the list of hall-of-fame offenders are such typical entries as Iran, Vietnam, Saudi Arabia, Pakistan and, of course, the United States. The question has often been asked: is this the kind of company we should be keeping? After all, the very same countries that top the list of capital punishment executions each year also claim the worst human rights violations and, worse yet, the seediest connections with ideologies and organizations that deal in political violence. In this day and age, I would think we would want to avoid bearing resemblance to regimes so tyrannical and underhanded. These states not only qualify as egregious offenders of our most cherished fundamental beliefs, but they also garner such meritorious distinctions as being terrorism sponsors and card-carrying members of President Bush's "axis of evil." But we are, of course, inevitably presented with the argument that the death penalty does more good than harm and acts as an effective deterrent against serious criminal behavior like murder, rape and drug trafficking. Look at the statistics. None of these crimes has seen a substantial decline in frequency since capital punishment was reinstated in the United States in 1977. But if that won't persuade the average American, then what will? The fact remains that not only is the death penalty ineffective, it is often wrong. Or at least, those who apply it are. Commonly available numbers cite at least 2/3 of death sentences overturned between 1973 and 1995. Of those convicted, 7 % were eventually exonerated. Common sense would lead us to believe that, in a system that has so egregiously miscarried justice as to let O.J. Simpson off the hook, that number might potentially be higher. It's less to do with how many people are getting put to death and more with who is being executed. There is something to be said for the fact that, in 2004, African Americans constituted nearly half the death row population in the United States and only 13 % of the general population. Could it be that the violent crime rate among African Americans is that much higher? It's plausible - and I'm certainly disinclined to argue with statistics - but, that much higher? Or could it be that, in an inevitably humanly flawed system of justice, an inherent bias exists that might make it harder for white jurors to send white convicts to the chair? There might be even more superficial reasons why the United States might wisely make the effort to ditch its switch-flipping fixation. In a time when we couldn't need a global image makeover any more badly, why not make the attempt to show off our more humane side (you know, they one we're always assuring people we have)? Shouldn't it be a shame to any self-respecting American that we have yet to sign the United Nations Convention on the Rights of the Child, simply because we have stubbornly and bewilderingly held steadfast to our sovereign right to executive juveniles? I think it is. More importantly, I think we seriously need to reevaluate how we fight the ever-present scourge of violent crime in this country. If we're doing so by engaging in the same tactics as that of countries like Saudi Arabia and Pakistan, who have well-known histories of sponsoring and perpetrating political violence, we've certainly lost sight of any goal we might've had in the first place. In the end, it just seems like we're fighting fire with fire - and getting nowhere fast. (source: The Johns Hopkins News-Letter -- Sal Gentile is a sophomore Writing Seminars major from Holmdel, N.J.; Feb. 17) OHIO: Hill's court days likely not over Retired Judge David McLain, who presided over the 3-judge panel that convicted Danny Lee Hill of the 1985 murder and sexual torture of young Raymond Fife, has never held a strong belief in the death penalty. "I still don't," McLain said Friday, admitting that Hill's mental capacity was borderline. A visiting judge Wednesday decided Hill failed to prove that he should not be executed because he is mentally retarded. The 39-year-old inmate, who was 18 when he was sentenced to die, falls into a group of 21 killers either waiting for a decision on their claim or planning appeals on the mental issue. But it may have been McLain's feelings about the death penalty that led him to more closely scrutinize issues involving Hill's mental capacity during the original trial, long before Atkins appeals even existed. In an Atkins appeal, mentally retarded death row inmates are not eligible for execution under a 2002 U.S. Supreme Court ruling. "The IQ scores and his age were very important during the mitigation phase. He did have the street smarts, though, according to the evidence," said McLain, who was still convinced that aggravated circumstances outweighed the mitigating factors when it came down to a penalty in Hill's trial. "All the Atkins claims have really been an uphill battle. And it's been the same all across the country," said attorney Gregory Meyers, who represented Hill and who is considered an expert on capital jurisprudence, working full-time out of the Ohio Public Defender's Office in Columbus. "Even in the actual Atkins case that was kicked back to Virginia by the U.S. Supreme Court, the defendant was not considered mentally retarded after they explored the adaptive skills," Meyers said. Trumbull County Prosecutor Dennis Watkins stressed the adaptive behavior of Hill in the form of "street smarts" while arguing against the Atkins claim over the past 2 years. As one of 196 convicted killers on Ohio's death row, Hill was among 36 fellow inmates to file a claim that he was mentally retarded and not eligible for execution under the high court ruling. Another 15 inmates voluntarily dismissed their claim, including some who dropped the challenge before being executed, according to the Public Defender's Office in Columbus. The group of 15 also includes Darryl Gumm of Hazard, Ky., the only death row inmate who won his claim in Hamilton County in August. Besides Hill's anticipated appeal, Trumbull County still is wrestling with similar Atkins claims from 2 other local death row inmates. There are a total of 10 Trumbull County residents on death row. After appeals are exhausted on the mental retardation issue, Hill will resume his fight in the 6th Circuit U.S. Court of Appeals, which placed a stay on the issue of whether Hill was coerced into confessing about the murder. Watkins and his chief appellate assistant LuWayne Annos are quick to remind that the Hill confession has already been the subject of debate at every level. Constitutional rights and the role of Hill's uncle, former Warren detective Morris Hill, have cleared legal hurdles at the original suppression hearing prior to trial; in the 11th District Court of Appeals; and in the Ohio Supreme Court that also reviewed the complete case and affirmed lower courts. "It's outrageous. The issue has been litigated several times," said Watkins. "If you know Morris Hill, he would defiantly have been in a position to protect his nephew's rights." "The 6th Circuit is not giving fair consideration to state courts on different issues," said Watkins, who cited two local cases that were overturned by the court in Cincinnati only to be overturned again at the U.S. Supreme Court level. Watkins remains confident the federal appellate court will rule what 3 lower courts already did. He's still troubled by a draft from federal judges that found: "Danny Hill first came to the attention of police when he inquired about a reward offered for information on Raymond Fife's death. Questioned twice, he consistently denied any involvement in the killing. Then his uncle was assigned to the case. After being brought to the station again and left alone with his uncle for a few minutes, Danny Hill made an abrupt about-face and confessed to involvement in the crime. In evaluating these events, Danny Hill's previous interactions with his uncle are important: Twice before, when Hill was in police custody, his uncle struck him when he refused to talk. Even accepting his uncle's version of events, in which Detective Hill simply told Danny Hill he believed he was involved in the killing, this episode raises a serious question of coercion. That any officer had struck a suspect is troubling; of special concern here is that Danny Hill was struck by an officer who was also a close family member." (source: Tribune Chronicle) PENNSYLVANIA: Pa. death-row inmate's mental state is debated Only 3 prisoners have been executed in Pennsylvania since the state reinstituted capital punishment in 1978. All were so-called volunteers - inmates who give up their right to appeal and choose to die. Hubert L. Michael Jr. could ultimately become the 4th. Michael, a death-row inmate for nearly 12 years, has been telling judges for years that he wants no further appeals of his death sentence, and he has just written another letter from prison with the same message. But does that mean he wants to be executed? And is he mentally competent to make such a decision? Those are the questions being debated in a new round of court papers filed Thursday in the U.S. Court of Appeals for the Third Circuit in response to Michael's most recent letter to the court. Michael, 49, is 1 of about 225 prisoners on the state Department of Corrections list of those sentenced to be executed in Pennsylvania, which has the 4th-largest death row in the nation after California, Texas and Florida. He pleaded guilty in 1994 to the kidnapping and murder of a 16-year-old York County teenager, and asked the judge to sentence him to death. Michael got his wish, and for much of his time on death row, he has said he wants all appeals stopped. But occasionally he has wavered - and that has led to questions about his mental competency. His mental state is important because the U.S. Supreme Court has said that an inmate about to be executed must be mentally competent - that is, he must know that he is about to be executed and the reason why. In 2004, U.S. District Judge Thomas Vanaskie found Michael mentally competent and removed the lawyers representing him. But the lawyers appealed to the Third Circuit, which is now mulling what to do about Michael as it also seeks to provide clarification for future cases in which death-row prisoners flip-flop on whether to continue their appeals. Last month, Michael filed a letter with the federal appeals court to say he wanted to keep his current lawyer, Joseph M. Cosgrove, who was appointed to the case in 2002. But Michael's letter said nothing about whether he wanted to continue an appeal, leaving the court uncertain whether Michael wanted to waive his appeal. In a letter filed with the court Thursday, Michael sought to clarify what he meant. "This letter is to inform the court that I, Hubert L. Michael Jr., wish for no further appeals regarding my sentence of death. Please do not misconstrue my last letter to this court where I stated that I would like Joseph Cosgrove to continue to represent me. "Yes, I would like Joseph Cosgrove to continue to represent me for as long as I am before any court regarding any criminal matter. I do consider Joseph Cosgrove a friend as well as an excellent attorney. However, I ask for no further appeals regarding my sentence of death." Senior Deputy Attorney General Jonelle H. Eshbach said that the letter made it clear that Michael wants to end his appeals, and she said that its clarity showed that he is mentally competent. "Michael's decision for no further appeals should be honored. This appeal should be dismissed," she wrote to the appeals court. Cosgrove disagreed. He urged the appeals court to send the matter back to Vanaskie. He also attached a letter from forensic psychiatrist who said that Michael should be reevaluated. Cosgrove noted that Michael did not say in the letter that he wants to be executed and did not say that he wanted to terminate the ongoing appeal. He said there were "substantial psychological issues" and it would be "quite inappropriate" to dismiss the appeal "on the basis of this ambiguous letter." Michael, however, has repeatedly assured judges that he is mentally competent. "How many more 'experts' does this, or any other court, need to have brought before it until it realizes that I am in fact competent," he asked Vanaskie in 2003. And in February 2004, he told the judge: "One would have to be mentally incompetent himself to believe that I am mentally incompetent." Richard Dieter, executive director of the Death Penalty Information Center, said that since 1976, about 12 % of the 1,009 people executed in the United States gave up their right to further appeals. Some death-row prisoners, he said, want to be executed from the start while others eventually give up because of their years on death row, where there are few work or education programs to pass the time. So for some, he said, death is not always the worst result. "The worst would be staying on death row indefinitely," said Dieter, who said the reality is that sometimes a death sentence is really just a "weird limbo" - a very long prison term that is marked by more isolation and security than a traditional prison sentence. ONLINE EXTRA For more information on the death penalty in the United States, visit http://go.philly.com/ (source: Philadelphia Inquirer) ***************** The Prosecution of Dennis Counterman----A Case of Injustice in Pennsylvania In 1972, the United States Supreme Court invalidated all existing death sentences in its decision Furman v Georgia. Since then, 38 States have reinstituted death penalties that conform to the constitutional standards set forth in Furman. 1011 people have been executed in the United States between 1977, when Gary Gilmore was shot before a Utah firing sqad, and February 8, 2005, when Robert Neville, a native american from Texas, was given a lethal injection. Since Furman, 122 people convicted of murder have been released from death row through evidence of innocence, exonerated. 6 if those have been from Pennsylvania, which has executed 3 in these post-Furman years, from a death row that now numbers 231. Here is the story of Dennis Counterman, a Pennsylvanian who was sentenced to die, who is proven innocent, yet remains imprisoned. On July 25, 1988, a fire consumed 436 Chestnut Street, Allentown, Pennsylvania. Chestnut Street is a narrow, sunless alley just a couple of blocks from the Lehigh County Courthouse and prison, located between Penn Street and 4th Street. 436 is part of a row of 2 story houses sharing common side walls, each home 9 wide feet by 50 feet long, with a narrow, steep set of steps leading up to a front porch. The tenants who squeezed into 436 were the Counterman family; Dennis, 28 and Janet, 26, husband and wife, children Christopher, 6, James, 4, and Scott, ten weeks. Dennis worked at HAB Industries, a local textile plant, with a salary that allowed him to take home about $160 a week. Dennis had a 9th grade education, with learning disabilities that were either caused or exacerbated by beatings in his early years, before his father left his family when he was 9. He was unable to obtain a driver's license because he could not pass the written portion of the test. Janet has an IQ under 70. The house had a history of fires, one several years earlier, and another just weeks earlier, when Christopher set fire to curtains with a lighter. In that case, Dennis had managed to put out the fire. The fire of July 25, 1988, started on the first floor. Dennis, again, tried to put out the fire. He was driven out of the living room by smoke, climbed on the back roof and tried to enter to save his family. He was not able to get back in the house, and broke his heel jumping off the roof. He was screaming and crying, and had to be restrained from entering the house. The children died in the smoke and heat of the fire. Janet escaped off the front roof. The initial account given by Janet Counterman on July 25 to Sergeant Kochan of the Allentown Police Department is as follows: "I also interviewed the wife, Janet Counterman. She stated the oldest son, Christopher, woke her up and told her there was a fire downstairs. She woke her husband up. That was all she remembered." Janet was severely burned, with 2nd and 3rd degree burns over 50% of her body, and was placed in a burn unit, in critical condition. Dennis was also taken to the hospital, treated for smoke inhalation and his broken heel. Here is his statement of the events of that night, as related to Sergeant Kochan on the day of the fire: "En route to Lehigh Valley Hospital, I got the husband's name, Dennis Counterman. I spoke to him briefly in the car, but I interviewed him at the hospital. Dennis stated he was sleeping in the front bedroom, second floor, with his wife and baby Scott. He said his son Christopher woke him up and told him there was a fire downstairs. His other son James was with Christopher. He went down to try to put the fire out. The fire was in the sofa in the living room. He was trying to put it out with water from the kitchen sink with a bucket. The smoke pushed him out the door. He climbed on the roof to try to get the children out but couldn't. He jumped off the roof. He also stated the when he was trying to put the fire out he was calling to his wife but she did't answer. I asked him if he knew how the fire started. He said the children must have had matches or a lighter. They did that before. I also interviewed the wife Janet Counterman. She stated the oldest son, Christopher, woke her up and told her there was a fire downstairs. She woke her husband up. That was all she remembered." Janet Counterman was sedated with morphine and anti-anxiety medications due to the extreme pain caused by her injuries. She was intubated. Detective James Stephens visited her during the period of her stay in the hospital, and conducted various interviews. The first, on July 31, was a series of questions that could only be answered with nods, or written "yes" or "no", as Janet was still on a a breathing tube. He elicited statements that she feared Dennis, that Dennis was physically violent and that Dennis started the fire. Stephens followed with other interviews in August. On August 8, 1988, Janet gave this statement to Stephens: "Now wait a minute, there was one more, ah, his oldest boy Christopher had, was, I don't know, he either got hold of a lighter or matches or, and caught the curtains on fire, but Dennis put that one out." Dennis became aware that he was a suspect. He went to the hospital on August 22 and 23, and had angry words with his wife. On August 23, he was arrested for three counts of murder by arson for the deaths of his sons, 1 count of attempted murder by arson for the injuries to his wife, 2 counts of arson, and 2 counts of intimidating a witness, for his encounters with his wife on the 22nd and 23rd. The District Attorney, William Platt, sought the death penalty. At his trial from January 22 to February 9, 1990, Dennis was represented by public defenders Robert Long, who had tried one murder case, and Karen Schular, who had passed the bar examination in 1989. The prosecution case was brought by Assistant District Attorney Richard Tomsho. The prosecution theory was that Dennis had set the fire to get rid of his family, because he no longer wanted a family life. There was evidence presented that he had made remarks to the effect that he was "sick" of his children. There was testimony about his pot smoking. There was supposition that he stood to gain from the rental insurance. Here is a description of Tomsho's final summation before the jury; "Counterman may have decided he no longer wanted to be a husband and father, Tomsho said, and gotten to the point where he said, 'I can't take it anymore, I don't want it anymore.' For the average person, those may not be reasons enough to kill, the prosector said. "But doesn't the evidence suggest they may be reason enough for the defendant?" Tomsho asked the jury. "Preposterous as it may seem, and maybe, for the reason I suggested, strange. But they are valid reasons, and they are the reasons in this case." Tomsho told the jury. (Allentown Morning Call, 2/9/90, Debbie Garlicki) Dennis has always denied that he set the fire that killed his children, burned his wife and destroyed his life. His defense team tried to rebut the prosecution's case with the theory that Christopher started the fire, as was stated by both Janet and Dennis on the night of the fire. Their statements were further buttressed by statements of Madeline Rothermel to the police, on July 25, 1988, in a statement to Officer John Kerrigan: "She knows the mother of the children 436Chestnut Street. States the mother told her the older boy, "Chris" had lit the curtains in the children bedroom with a cigaretter lighter approximately 1 month ago. The family had been able to put it out. Rothermel states that she saw the boys fingers and they appeared to have minor burns. She knows not if this was due to the fire or possible punishment. She felt this should be reported to the Children's Bureau. For all the good this will do now." There were numerous other similar statements given to the police and authorities during the investigation in the days after the fire, to the police and the County Children and Youth Services. The reason that Dennis was unable to establish to the jury that Christopher in all probability started the fire was that Richard Tomsho, the police and trial Judge Mellenberg did not allow these documents into the hands of the defense. The initial statement by Janet was whited out by Richard Tomsho before the rest of the statement was given to the defense. The statement above by Madeline Rothermel was not discovered until February 16, 2001. All exculpatory statements were released either in the middle of the trial, which did not allow a clearly overwhelmed defense team to properly present the testimony, or never revealed. Officer James Stephens testified at trial that Janet Counterman never made statements about prior fire starting behaviour of Christopher. He read into the record, to the jury, a denial by Janet from the hospital interviews that Christopher had ever set a fire or played with matches. Janet testified at trial that her children did not have a history of fire starting behaviour. She was an "eyewitness" to Dennis' guilt at trial, and the prosecution based their case on the testimony developed in the hospital interviews, while Janet was drugged and intubated. The defense never brought out her lack of capacity while in the hospital. The defense never told the jury that Dennis had never had one conviction, even for a parking fine. The Judge did not allow a psychiatric examination of Janet for the record. The police never came forward with the evidence they had collected that could have backed the idea that Christopher started the fire. The Chief of the Allentown Fire Department, Joseph D'Annibale, testified that the fire was set with an accelerant, although no evidence of an accelerant was discovered. The jury, in 6 hours, found Dennis guilty on all counts, of 3 1st degree murders, attempted murder, arson and intimidating a witness. The next day, August 9, they returned a death penalty, after a 4 hour deliberation. Detective James Stephens was quoted, "I feel justice has been served." On November 22, 1996, post-trial motions were denied by the Lehigh County Court, sitting en banc. Dennis' death sentence was finalized by Lehigh County Judge Lawrence Brenner on December 6, 1996. Collateral relief counsel was provided by Allentown Attorney Wallace Worth, who provided no relief for Dennis. Governor Tom Ridge signed a death warrant on October 13, 1999, for a December 9, 1999 execution, which was stayed by a writ filed in November. In 2000, Dennis' case was accepted by Attorneys James Moreno and Victor J. Abreu, of the Defender Association of Philadelphia. They hired a fire investigator, Richard L. P. Custer, who found that the fire is "unlikely to have started with ignitable liquid spread on the stairs, dining room carpet, out to the kitchen", and "the scenario of a fire starting on the sofa and extending to the rest of the structure is consistent with the damage seen", and further, "there is no fire scene evidence to support the use of an ignitable liquid in this fire." Moreno and Abreu looked at the prosecution files of the case, and found extensive prosecutorial misconduct. They state in a Court Petition, "In this case, the Commonwealth's behavior was nothing short of unethical, unconstitutional and clearly intended to deprive Petitioner of a fair trial. The Commonwealth also presented evidence it knew to be false and misleading, such as the testimony of Detective Stephens and Mrs. Counterman that there was no evidence of prior fire setting behavior on the part of Christopher's testimony directly contradicted by evidence sitting in the prosecutor's file at the time of trial and by Detective Stephen's investigation, including his contact with the Lehigh County Office of Children and Youth Services concerning this case. In short, every piece of evidence that fell into their hands indicating Petitioner was innocent was suppressed. A more deliberate denial of a capital defendant's right to a fair trial has never been presented to the courts of this Commonwealth." Moreno and Abreu brought a Petition for Post Trial Relief to the Lehigh County Court. It was heard by Judge Brenner, and on August 27, 2001, this same Judge who signed the death sentences of Dennis Counterman granted him a new trial. His convictions were vacated, he was once again innocent until proven guilty. Judge Brenner stated, "Finally, it is beyond reproach that the Assistant District Attorney responsible for the numerous Brady violations detailed above engaged in a pattern of conduct that at best, was misguided, and at worst, deceitful." The current Lehigh County District Attorney, James Martin, immediately decided to retry Dennis for capital murder. However, he is pursuing a case without basis. The witness key to the prosecution, Janet Counterman, made this statement in 2003: "My name is Janet Counterman. This statement is being handwritten by Attorney James Moreno, one of Dennis' lawyers who along with Victor Abreu interviewed me at my home. They asked me what I remember about the fire and my stay in the hospital. I told them it has been so long that I do not remember what happened. Last year I told Detective Stephens the same thing when he talked to me at my home. It has been so long I don't know how the fire started." Here is a report about the testimony of the prosecution's new fire expert, George Umberger: "Umberger said that some of D'Annibale's and Wenzler's opinions and those of a defense expert were speculation. Indications of other fires at the house and reports that the children played with matches 'certainly has to add some credence to the possibility that this fire may have been a juvenile act'By today's fire investigation standards, he said, the prosecution's experts do not have 'truly provable' theories of how and where the fire started." (Allentown Morning Call, 10/2/2004, Debbie Garlicki) Since his key witness can no longer testify, District Attorney Martin tried to get Judge Brenner to allow transcript testimony of Janet Counterman before a new jury, testimony that was not able to be fully cross- examined at the 1990 trial due to prosecutorial misconduct. When Brenner said no, Martin appealed to the Superior Court. In August of 2004, the Superior Court agreed with Judge Brenner. Lehigh County District Attorney Martin is now before the Supreme Court of Pennsylvania, asking for the right to use the discredited 1990 transcript testimony of Janet Counterman to convict Dennis Counterman of capital murder for the deaths of his children. Dennis Counterman remains in Lehigh County prison, about 2 blocks from 436Chestnut Street, Allentown, a city that calls itself "Pennsylvania's Park Place". He has refused a deal from the Lehigh County District Attorney, and will accept nothing less than his freedom. Attorney Richard Tomsho is a member of the staff of the Pennsylvania Attorney General, Environmental Crimes Division. (source: CounterPunch - Joe DeRaymond, of Freemansburg, Pennsylvania, member of Lehigh Valley Citizens Against State Killing, (LV CASK), and Pennsylvania Abolitionists Against the Death Penalty)
