Conflict-heavy Northampton County district attorney primary goes to voters

EASTON, Pa. — One morning in mid-March, former Northampton County Judge Stephen Baratta called a news conference to talk about his campaign for district attorney.

A few months earlier, Baratta had resigned his judge position with years to go in his term, and announced he would challenge incumbent District Attorney Terry Houck in the Democratic primary.

• The race for Northampton County district attorney pits incumbent Terry Houck against former county Judge Stephen Baratta
• Both are Democrats. Because no Republican is seeking the office, the May 16 primary is likely to choose the winner of November's general election
• Baratta's campaign has focused on what it says are shortcomings and problems with Houck's administration. Houck says the race has been disappointingly negative, and he has new ideas

“People have been asking me about my motive. Why is it that I've stepped down? What's the reasoning to run?” he said, his voice echoing through the rotunda of the county courthouse.
“The reason why I'm running is because I've seen, over the last four years, concerning behavior with regard to our district attorney's office.”

Last week, Baratta called another news conference in the courthouse rotunda. By now, after months of campaigning, everyone knew approximately what to expect: Baratta would spend the next hour or so tearing into his opponent, accusing him of corruption, ineptitude and mismanagement.

Afterward, in an interview in his office, Houck forcefully disputed or denied virtually all of it, saying Baratta doesn’t know how a modern prosecutor’s office works and is running a campaign detached from reality.

“I've given up trying to figure out whether this guy is just lying, or whether he just gets a piece of information and runs with it,” Houck said last week.

“That's pretty scary when you think of it right off the bat. Because if you're a district attorney, you're duty bound to investigate, look into things, look at all sides before you go making an accusation.”

Because no Republicans have filed for the race, the outcome of the Democratic primary on May 16 likely will decide who takes office. Only registered party members can vote on the party’s nominee.

Giving voters a reason

Baratta said that while he had heard rumblings from the bench of “nonsense in the [DA’s] office,” he decided to run when he learned about the conduct of Houck’s second-in-command, Richard Pepper.

“A lawyer stopped me in the halls in November, I think before Thanksgiving, and told me ‘Listen, I hear you’re thinking about running for DA. If you do, you've got to stop that stuff that Pepper is doing.’ I said, ‘What are you talking about?’”

Days before he announced his run for DA, Baratta sent a letter to the county council, executive and solicitor, plus the state Attorney Discipline Board, outlining his criticisms of Pepper and asking for a formal investigation.

Pepper takes on cases in a private law practice in addition to his full-time job in the DA’s office, and rents office space from a local defense attorney.

“The idea that he was running a private practice during the week, I believe, offended not only the intent of the ordinance that created the first full-time assistant [District Attorney], but it created conflicts,” Baratta said.

“If he's representing civil clients, and he's also prosecuting people in the community as a DA, there [is] eventually going to be conflicts.”

Houck has defended the practice, saying Pepper routinely works 50-hour weeks and only takes on other cases in his spare time.

In the Bucks County District Attorney’s office where he started his career, he said, having a side practice outside the office was encouraged.

From the dawn of his campaign, the core of Baratta’s strategy has been to forcefully attack his opponent’s record in office — specifically and constantly.

“My job, because I'm running against an incumbent, is to give you a reason not to re-elect him,” he said during a candidate forum in Nazareth in late March.

In the time since he wrote an email about Richard Pepper, Baratta has offered many. Every step of the way, Houck has pushed back just as forcefully.

Baratta said recent turnover in the office was a sign of mismanagement at the hands of his opponent; Houck said it was a reflection of the coronavirus pandemic, a broader shortage of prosecutors and the "transient nature" of the job.

Accusing Houck of corruption, Baratta says a payment from Philadelphia law firm Kline and Specter was unethical. Houck said the payment was a referral fee, paid for sending a friend to the firm long before he took office.

Houck said he called the State Ethics Commission for advice, which told him he had nothing to worry about; Baratta said the commission does not give an opinion over the phone.

State Ethics Commission President Mary Fox said it is common practice to talk through a situation over the phone with an elected official, but those conversations don’t carry the same legal weight as a formal, written determination from the body.

Fox said she could not comment on whether the specific situation violated any rules.

Each went as far as to criticize the other for incorrectly pronouncing “Giglio,” the name of a 1972 U.S. Supreme Court case. The Pa. District Attorney’s Association says the name is pronounced GIG-lee-oh, as Houck says; the lawyer who argued on Mr. Giglio’s behalf pronounced it JILL-ee-oh, as Baratta does.

Commonwealth v. Ferrante

Baratta’s accusations of wrongdoing are often complex, technical and difficult to evaluate.

Take, for example, the case of the Commonwealth v. Christopher Ferrante, one of several prosecutions Baratta has singled out as evidence of the incompetence he sees in the District Attorney’s office.

On Christmas Day, 2020, 26-year-old Michael Racciato, of Pen Argyl, died of a drug overdose. A few months later, Northampton County authorities charged Macungie resident Christopher Ferrante, 43, with selling Racciato the drugs that caused his death.

As a trial date approached in May 2022, prosecutors handling the case wrote that they had recently discovered xylazine, a veterinary tranquilizer, mixed into drugs found on Racciato’s body and in his bloodstream.

Because it was not a controlled substance at the time, investigators did not initially test for the drug.

The discovery “could potentially impact both prosecution and defense theories, as well as the opinion of the Commonwealth’s toxicologist,” they wrote and asked to push back the trial until October.

The judge overseeing the case, John Morganelli, rejected their request, finding the DA’s office failed to exercise due diligence.

“Due diligence requires at least an attempted effort,” he wrote in court filings. “Despite repeated questions posed by us to the Commonwealth attorneys as to why nothing was done… to secure their desired witness, we were answered with repeated ‘I can’t answer that.’”

“The first thing [the defense] would have said is, ‘there's xylazine in there. That could have killed him,’” said Houck in an interview. "All they had to do was get someone to say [Fentanyl] didn’t.”

Houck later said that a surge in similar overdoses on xylazine and fentanyl was creating extreme demand for experts to testify in cases like Ferrante’s.

Prosecutors quickly appealed Morganelli’s rejection, putting proceedings on hold; their appeal was rejected by the state Superior Court late last month. The case soon will be returned to Northampton County’s courts.

The delays triggered a state law that caps the time a defendant can be held in jail awaiting trial at 180 days. As a result, Ferrante was released on $1 bail, subject to GPS monitoring, drug testing, pretrial supervision and other restrictions, according to court records.

“Due to Terry Houck’s incompetence,” a campaign mailer sent by Baratta’s campaign said, “an accused drug dealer is now free to continue selling fentanyl and will likely never face a jury.”

Houck has said his office is ready to proceed with a case at any time and is confident it will secure a conviction. He also challenged the idea Ferrante was "free," describing the conditions of his release as “house arrest.”

“He's out of jail. I consider that to be free,” Baratta said. “Especially when the alternative is incarceration itself.”

Ferrante’s lawyer, Gary Asteak, criticized Barata’s decision to use the case as a political weapon.

“It is awkward and untoward for a criminal defendant to be the subject of a district attorney's race, particularly with regard to a pending matter,” Asteak said. “I do not wish Mr. Ferrante to be the target of political debate.”

Asteak recently filed a motion to dismiss the charges against his client, citing the state’s speedy trial law, which gives prosecutors one year to try a case. After that, the charges must be dropped.

Not every day counts toward the limit, however, and determining whether prosecutors violated the rule can be nuanced.

Baratta said he is certain the case will be dismissed as a result of the accumulated delays while accusing Houck of knowingly stringing along the victim’s family.

“I would not have filed the motion if I did not expect it to be successful,” Asteak said. He said he believes the period of time the case was on appeal counts toward the 365-day limit.

The decision on whether to proceed with the charges ultimately rests with Judge Morganelli.

Wants 'a legitimate campaign'

Houck said that if he had his way, the race would look very different. His first race, he said, centered more on differences in policy and approach to the office.

Back in 2019, he said, he ran on establishing a child advocacy center, for example, where children who are victims of abuse can be interviewed by investigators and get medical care in a specialized, minimally traumatic environment.

Since then, he had funded access to Lehigh County’s center for police departments in Northampton County.

The 2019 race “was a legitimate campaign,” Houck said. “I mean, we would get up and say things we were going to do.”

This time around, “there's been no platform. There's been no agenda. There's been no honest debate of how you're going to conduct the office. It's just ‘You suck, you suck, you suck.’”

Some of the plans he’s running on in 2023 are continuations of previous priorities, such as establishing a new child advocacy center in Northampton County.

He also has some new ideas. For example, Houck wants to develop a new infrastructure to process applications for clemency: an advisory group composed of social workers, defense attorneys, and prosecutors.

Requests for clemency would first be screened to find applicants who are particularly good candidates for clemency. Those candidates would sit for an interview with members of the group, and get help filling out their official application.

Currently, those applications immediately land on Houck’s desk. He said the new system would help applicants understand what authorities are looking for from an applicant, and give the district attorney more context when making recommendations to the state board that has the final say.

Instead of spending most of his campaign talking about his plans for office, Houck said he's spending most of his time on defense.

“I think it puts me at a disadvantage because negative mail works,” he said.

Sometimes, the criticism revealed an underlying difference in philosophy.

Baratta has criticized county prosecutors’ performance in jury trials, suggesting the office routinely overcharges in order to pressure defendants into plea deals.

“You should be looking carefully at the facts, speaking with the police officers, and figure out what's your strongest case to prove, and not bring cases that you think are weak or questionable,” Baratta said.

Houck said, “I think that's his way of saying that he wouldn't take a difficult case for fear of losing. That can never be in a prosecutor's mind, ‘I'm afraid of losing, so I'm not going to take a case.’”

He said there is a gap between the legal standards to issue an arrest warrant and the legal bar to convict someone of a crime.

“There are the cases you get in there and you fight for,” he said. "Especially cases where there is enough evidence to know prosecutors are right about a given case, but that pose a challenge at trial. Some evidence can’t be used, for example, or a witness refuses to cooperate."

“You have victims here, and you have people that are affected by these crimes, and more importantly, you have people that are on the loose that are committing these crimes,” Houck said.

"When you make a decision to not prosecute a case you know clearly happened, then there's a chance that this could happen again.”