Prosecutors' tricks can lead to death

Within the surreal world of capital punishment, district attorneys are usually trailing public opinion. They’re the last to get the memo. When it comes to the death penalty, prosecutors are like the guy still wearing leisure suits and listening to K-Tel records.

After all, it was the Pennsylvania District Attorneys Association that testified in March, 2002, against a bill that would have ended the execution of the mentally retarded at a time when three of every four Americans opposed the practice. Three months later, the U.S. Supreme Court ended this horrid torture. It was district attorneys who supported the execution of child offenders despite, again, about a 75% rate of opposition from the public. The Supreme Court ended that practice earlier this year.

Across the nation in 2004, death sentences hit their lowest rate since the reinstatement of the death penalty, continuing a five year decline. The mid-1990s was once described by Dr. Terry Madonna, professor at Franklin & Marshall College, as the “hang ‘em high, hang ‘em often” period, and in 1994, Pennsylvania juries sentenced 21 defendants to die at the hands of the state. In 2004, only four defendants received the death sentence in the Commonwealth.

Despite the public’s growing doubt about the death penalty, district attorneys continue to pursue death at an alarming rate. Even wanna-be prosecutors haven’t gotten the message that half the nation prefers life without parole over death (according to polls). Candidates for district attorney in both Lebanon County and Bucks County have included pledges to increase pursuit of death in their platforms. Following the trend away from capital punishment, neither county has condemned a prisoner to die since the mid-1990s.

Prosecutors have a full arsenal of tricks at their disposal in their zealous pursuit of death, and our local officials are no strangers to the myriad ways that prosecutors win death sentences. In the Easter-Burton murders of 2001 in Harrisburg, investigators had a difficult time finding a suspect because all of the witnesses told them that the perpetrator wore a mask. Conveniently, a witness eventually came forward- a witness who just happened to be up on unrelated charges- and claimed that the mask briefly slipped off the shooter. Based largely on the testimony of this witness, who was a criminal himself, a Dauphin County jury sentenced Samuel Randolph to death for that crime in May, 2003. Despite his checkered past, which he admits to and regrets, Randolph insists that he did not commit the crime for which he is sitting on death row.

Squeezing witnesses who face unrelated charges is a particularly dastardly technique. In the case of William Nieves in Philadelphia, investigators were told by several eyewitnesses that they were looking for two short African-Americans. Nieves is a Puerto Rican of average height. Ten months later, one of the witnesses was charged with solicitation, and her story suddenly changed to finger Nieves. Part of her questioning included a photo of Nieves from several years prior that had been darkened. Nieves was sentenced to death in 1994 but won his freedom at retrial in 2000.

We’ve all used white-out as a handy tool when we make a mistake. Who knew it could be handy for a murder investigation? In an Allentown arson case in which three children died, their mother told investigators at the scene that their father had been sleeping and that one child had told her that another child was playing with matches again. Investigators, however, used white-out to eliminate this part of her statement, and then re-interviewed her at the hospital while she was heavily medicated. This child had a history of arson, but evidence from Children & Youth Services about this was withheld from the defense.

The father, Dennis Counterman, sits in jail today, convicted and sentenced to death for the death of his three children. In a moment of common sense amidst a sea of madness, an appeals court tossed out the sentence and conviction, and Counterman awaits a retrial. Prosecutors, however, are appealing the decision.

It is these types of stories that have led to the public’s newfound doubts about capital punishment. In a sense, perhaps abolitionists should thank prosecutors for their over-pursuit of death. After ineffective defense counsel, prosecutorial and/or police misconduct is the second-highest reason for appeals courts to overturn death sentences and convictions, and this plants the seed of doubt in the minds of citizens. However, unlike prosecutors, abolitionists aren’t willing to manipulate the lives of others in the name of our cause. Lives are at stake, and as the public increasingly stands down from the death penalty, we expect district attorneys to follow their lead.