The all-too-familiar smell of smoke roused Dennis Counterman from sleep early in the morning of July 25, 1988. His six-year-old son, Christopher, had formerly been caught playing with lighters and setting small fires, but none of his previous antics could have possibly prepared Dennis and the rest of his family for the devastation to consume the Allentown row home. The fire, originating at a sofa, spread with ferocity, burning over 60 percent of Janet Counterman’s body and claiming the lives of Christopher, 6, James, 4, and Scott, 10 weeks. Only Dennis and Janet survived–but shortly after this first tragedy would the second strike: the grieving father would be falsely convicted for the murder of his family and later sentenced to death by lethal injection.
Eleven a.m. at the campus coffee shop is always a hectic scene, and today is no exception. The squabble of sorority girls huddled around their stickered laptops, combined with the grating of blenders behind the coffee bar, make it difficult to focus on just about anything. As the
Then enters Jim Moreno. With his black circular glasses and light gray hair, he doesn’t blend in with the students—although his single black stud earring suggests he did at one time. The man’s casual, approachable demeanor is a far cry from what one would imagine of the challenger to the most powerful player in the criminal justice system of Lehigh County, and yet, his authenticity may just prove advantageous in the upcoming election for district attorney.
“I know nothing about running for office,” Moreno insists. “All of this is new, I’ve never done anything like this before. I’ve never run for anything. I’ve never had a desire to run for anything. While I’m political I’m not a politician, you know?”
In his work at the Capital Habeas Unit at the Federal Community Defender Office of the Eastern District of Pennsylvania, Moreno has fought for inmates sitting on the fourth largest death row in the United States for over 21 years––his office has seen over 150 death sentence reversals. That’s not only 150 second chances at fairer trials but at new lives.
Given this success, Moreno was hesitant to dive into the formidable world of local politics and prosecution.
“I didn’t wake up one day and say, ‘I want to be a prosecutor,’ because I’ve spent my whole life banging my head against theirs as hard as I can,” he explained.
“But with this position, you could affect a lot of people substantially in ways that will impact their future, and that was what finally made me think that ‘win or lose, it’s worth a shot,’ at least getting the narrative going.”
The only Democrat in the race, Moreno’s sole opponent is the incumbent district attorney, Republican James B. Martin. Martin has been in office since his appointment in 1998, making him the longest-serving district attorney in the history of Lehigh County. Martin has run largely uncontested with the exception of the 2011 race, in which he won with 65.40 percent of the vote against Democratic challenger Edward F. Koren.
The official website of the Lehigh County defines the responsibilities of the district attorney’s office as “seeking justice, deciding when criminal charges will be filed, and fairly and efficiently prosecuting individuals charged with committing adult and juvenile offenses.” But from his years of experience operating on the other side of the bench, Moreno argues that prosecutors’ offices—even district attorneys’ offices—can be anything but fair.
As a death penalty defense lawyer, Moreno litigated Dennis Counterman’s highly publicized trial. Counterman was originally sentenced to death in 1990 for the fire that resulted in the death of his three children, but the conviction was overturned in 2001 and Counterman walked free from prison in 2006. The case was a prime example of prosecutorial misconduct.
“The prosecutor in the Dennis Counterman case up here in Lehigh County should’ve gone to jail for a substantial period of time,” Moreno asserted. “He withheld all sorts of exculpatory evidence showing that Dennis didn’t do it. There was a police statement given by Dennis’ wife and in the police statement she said that the six-year-old [Christopher Counterman], who had fire-setting behaviors, came upstairs, woke her up, and said, ‘I lit the couch on fire,’ and she told the cop that she woke up Dennis. And the prosecutor’s office whited that out from the police report, photocopied it, and then turned it over to the defense.”
Moreno lets out a deep sigh. “Nothing happened to the prosecutor. Nothing. To me, that’s no different from my putting a gun to your head and pulling the trigger and it misfires. I just bought 20 years in prison because I tried to kill you. He did it under cover of law in a suit.” Shaking his head, he fixes his gaze upwards. “You know, to me, that’s worse.”
While District Attorney Jim Martin was not in office while the misconduct occurred around 1990, he was in office in 2001 at the time of the retrial, during which Moreno argues Martin’s office acted improperly.
“When we were at the judge’s chambers discussing things for the upcoming trial, Martin’s office let slip that they had this expert arson report. We asked for it, and they said ‘no.’ And the judge, who had just heard all this evidence, said ‘you will have that report on my desk’ and he gave him a time frame. And damn, if that report didn’t say the defense was right,” Moreno chuckled.
“So even with that—with no evidence of arson, no witness evidence, the child’s fire-setting behaviors, records contained in children and youth services, all sorts of stuff, Martin’s office still wouldn’t drop the charges. So, Dennis entered what’s called an Alford plea.”
“An Alford plea is where the defendant comes into court and says, ‘I didn’t do this, but I recognize that if I went to trial, I could get convicted.’ And so, Counterman entered this Alford plea and was released right from the courtroom. But he still had a conviction,” said Moreno.
“You know, the Alford plea is a tool that prosecutors use to evade their own responsibility,” he continues the story, growing agitated.
“I mean, all Martin should have done was just drop the case. He didn’t even have to say anything, he should’ve apologized on behalf of his office. If he were really seeking justice, it would have been enough to say ‘alright, we don’t have a case. We’re dropping this.’ Dennis had already spent 18 years in prison for a crime he didn’t commit and had an execution warrant signed. And rather than drop the charges, which I think they were morally required to do, they saddled this guy with a conviction!”
Sitting back in his chair, he takes a moment to collect himself.
“I didn’t trust Martin’s office. I didn’t trust them. And so, if you don’t have that kind of trust in a governmental agency …” he trails off. “I really feared that they would—they would manufacture evidence,” he stammers. “That they’d have a jailhouse snitch or someone they’d bring in. Dennis took the Alford plea and he came home and that was cool,” he concedes. “But he was a broken man.”
Counterman entered prison in the late 1980s and was released in 2006. “The world blew him by,” Moreno said. “He had never sat in front of a computer screen before. He was like a kid. We sat him in front of a computer screen, he was a Dallas Cowboys fan, he typed in ‘Dallas Cowboys’ and boom, this whole website blows up in front of him, and it’s crazy.”
The Counterman case is only a glimpse into the reality of criminal prosecution. That’s why it’s so critical to have a trustworthy district attorney, Moreno argues.
The defender believes that running for district attorney would be “the opportunity to do something completely outside of my comfort zone and something that would have the potential of impacting a greater group of people than my current work does.”
“The district attorney sets the tone of the office’s priorities and how they’re going to handle cases, who they’re going to charge, what they’re going to charge them with,” he elaborates. “That’s why that position is so important, because it sets the tenor and you can prevent cases from getting even into court by immediately screening and diverting if you can. We can just do so much better.”
He pauses, taking a sip of his coffee.
“And I–you know, again, I didn’t grow up wanting to be a prosecutor. But it does seem like it’s a good opportunity in this current climate that there really is a national movement to do criminal justice reform and to do it from within.”
In regard to what kind of reforms he would enact as district attorney, Moreno expressed the desire to start a “robust diversion program” for people struggling with mental health and addiction in order to “treat them as the health issues they are, as opposed to criminal justice issues.” While Lehigh County does have a Mental Illness Substance Abuse program (MISA), Moreno argues the current program is insufficient for true restorative justice.
“It is not necessarily a diversion program,” he explains. “Generally, after someone’s arrested, they’ll screen some people and then treat them in prison. Last year, MISA only had two percent of the caseload, so you can’t tell me that out of the estimated five or six thousand cases that come through Lehigh County, only two percent of people are mentally ill or have substance abuse problems,” he contends. “In jurisdictions where they do have diversion programs for mental health, the recidivism rate really comes down. And Lehigh County has a 49 to 50 percent recidivism rate.”
In order to decrease this statistic in the Valley, Moreno believes that restorative justice programs must be created considering multiple axes of oppression, particularly race and socioeconomic status. “Part of the problem with Martin being around for so long is that he doesn’t think there’s a problem here in the Lehigh Valley. He acknowledges there are race issues in the country, and he’ll say he’s not naive, but he doesn’t really think it’s an issue here. And I think you’d have to be blind not to know that these are real issues.”
One such issue is that of children finding themselves trapped in the prison-industrial complex from a young age, particularly children of color, who are disproportionately targeted nationwide.
“I’d like to have a really good restorative justice program for juveniles. My limited experience in restorative programs and the reading I’ve done leads me to believe that they can be very effective, and they can be particularly effective with young people. And if we don’t send kids to juvenile detention centers they will have a much better outcome.”
The repercussions of incarceration don’t end after a prison sentence is served, Moreno explains. “If you get a criminal record, you know as a young person or a young adult, it’s not like you do your time and you’re done. You still have all these collateral consequences. You can’t vote. It’s harder to get jobs, to get into public housing. You can’t get student loans. There’s all these things that drive people back into poverty. So, if you can keep people from getting criminal records you can cut down on mass incarceration, cut down on the lifelong debilitating impacts of having a criminal record, keep families together, and build people up rather than tear them down.”
Another nationwide issue with incarceration is cash bail, or the amount of money a defendant is required to pay to be released from custody before their trial. The purpose of this payment is to ensure that the defendant will return to the upcoming trial, but this practice can be debilitating for defendants who can’t afford to post bail.
“Pennsylvania uses cash bail quite a bit,” explains Moreno. “So, the statewide average of cases with cash bail in Pennsylvania is 70 percent. In Lehigh County, it’s 82 percent. And 70 is high!” he exclaims, eyes wide. “Like, I’m stunned by 70 percent and to think that it’s even higher here is frightening. What I don’t know—and what we’re trying to find out—is what the length of time people spend in prison with cash bail is to kind of assess better the consequences. But that’s still a really high rate.”
He elaborates further with an example. “If someone gets a thousand-dollar cash bail, well, they may not be able to pay a thousand. So even if it takes them a week, ten days, two weeks to drum that up, in that time frame, you can lose your job, you can get evicted from your housing, and it just causes this whole cascade of consequences that make people worse off. And cash bail predominately impacts people of color, the Latino community, poor people, poor white people, too.”
Moreno seeks to diversify the district attorney’s office by having representation from those impacted most by the office’s policies. “I want to try to really recruit people of color and you have to make a specific effort for that,” he explains with earnest. “You can’t just put out ads and hope that people of color answer them. There are organizations and there are places you can go to reach out to communities that are really affected by this. I’m planning on and formulating plans to spend a lot of time in communities of color and the Latino communities that are most impacted by these sort-of regressive policies that we have right now in the Lehigh County. You know, cause I’m just another white guy, right?” he chuckles at himself.
“I need to build trust and be vulnerable to communities of color and let them see who I am. I don’t know everything,” the defender admits. “There will be a lot of issues that are important to people that I’ve never experienced, and I really want to learn about that and be able to think about it and then incorporate those concerns into my platform and really have a campaign that reflects the issues that are important to the community.”
“I mean, I still have a hard time wrapping my head around the possibility of being district attorney, I really do. I’m going to want to change the name to maybe like the ‘minister of justice,’” he laughs, pushing up his glasses. “Like something out of Harry Potter.”
Moreno’s proposed reforms might just be the magic missing from the Lehigh County district attorney’s office needed to prevent another family from suffering through an unnecessary ordeal like the Countermans. “I want voters to know that I have a lot of experience. And that I’m very passionate about criminal justice reform and justice in general. That I am committed to transparency and citizen accountability … And I think that all of the kind of criminal justice changes that I would propose will actually make them safer. Will lower recidivism rates. And that I really give a damn.” He laughs at himself, “I know that sounds corny, but do you know what I mean?”
People sometimes remark that Trexler Library on Muhlenberg’s campus is reminiscent of an airport; wide spaces illuminated by white fluorescent lights that only amplify the sensation of an overwhelming silence. Located not too far from the echoes of student chatter are the newspaper archives. The brown manilla folders, bulging with the weight of the papers inside, creak as they move along their wire racks, revealing just how infrequently students utilize them—suggesting that the folders bulge and buckle not only under the weight of their own contents, but under a personified loneliness. The stiff, wrinkled pages of a reserve copy of the January 15, 2019 issue of The Morning Call echo a suffering of their own:
Dennis Counterman, 58, of Allentown, died Friday at St. Luke’s Hospital, Allentown, from complications of cancer. He was the son of the late Carl W. and Grace M. (Danner) Counterman. Dennis was preceded in death by his three sons Christopher, James and Scott Counterman … He is survived by his wife Janet Counterman … Dennis never recovered from terrible injustice done to him by the legal system, but at last, he is at peace.