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The Political Problem And The Law

July 17, 2001

by Dr. G. Terry Madonna and Dr. Michael Young

It’s official. York County Judge Emanuel Cassimatus has bound over York City Mayor Charles Robertson and his fellow defendants for trial in the 1969 murder of Lillie Belle Allen. It was not unexpected. Probable cause at a preliminary hearing is not a hard standard to meet in Pennsylvania. In effect, a prosecutor must only prove a crime occurred and provide minimal evidence showing that a defendant might be guilty. Lawyers call it a prima facie case. Perry Mason stuff it isn’t.

So, the mayor and his case are going to be around for a while, with the trial likely to begin sometime next winter or later. A lot of people would like to see it go away – a bad dream after 32 years of blissful quietus.

But it won’t. And it shouldn’t. A woman was killed, the mother of small children. She was shot to death by a rifled slug in the chest, a pumpkin-ball as old- time deer hunters called it. Shotguns and rifles from multiple shooters riddled the car as she and her family made a wrong turn while driving in an area of York unfamiliar to them. Racial hatred was involved, and a conspiracy is alleged. The killing was monstrous.

Now 32 years later, after decades of apathy and inaction from public officials, the Allen family and friends are seeing the gears of justice begin to grind. And since there is no statute of limitation on murder, the guilty can be brought to justice at any time. Many African- Americans in York -- long aggrieved by apparent official indifference to the crime —are encouraged by the vigor of the prosecution.

But not everything about this case is auspicious. Lets call it the “political problem." Politicians pose special problems for prosecutors, and this prosecution is no exception. The dilemma: how to prosecute a sitting politician without showing favoritism on the one hand or being overly aggressive or unfair on the other The first problem – the appearance of favoritism – manifested itself when the mayor was not charged until after the May primary, when it is clear the prosecutors had the same information they used to indict the mayor after the primary. This inaction helped Robertson eke out a narrow electoral victory. Had the indictment come earlier, the mayor’s primary opponent, Ray Crenshaw, probably would be the Democratic nominee for mayor.

The second problem – fairness and evenhandedness-- goes to the substance of the prosecution itself.

The more one looks at this case the more it looks like Charlie Robertson is being prosecuted not so much for what he may have done as a 35 year old street cop in 1969, but for what he is now in 2001, a two-term mayor who before the indictment was likely to be reelected to a third term. If this is so, if this prosecution is politically motivated, then the Pennsylvania criminal justice system is being used in the pursuit of political objectives. And that would be an outrage.

Let us say clearly, this is no defense of Mayor Robertson. From his own mouth, he was a racist in 1969, shouting “white power” at a gang rally during the riots. His behavior then – as a cop and as a human being—was reprehensible. He may well have committed other illegalities as well. We don’t know, and the prosecutor isn’t charging him with other crimes. “The charge," as Robertson himself gasped out at a press conference, “is murder”.

The murder charge is predicated on the allegation that Robertson generally encouraged violent action and handed out .30-06 rifle ammunition to one of eight youths charged in the killing. But Allen was killed with a rifled slug from a shotgun, not a rifle. And the chief witness against Robertson – a drug addict and ex-con -- is a textbook example of a bad witness with huge credibility problems.

Lawyers not connected with the case have been described in press accounts as believing it to be very shaky on its face. Privately many attorneys express shock that the district attorney would bring a murder charge with so little credible evidence. One Yale Law School attorney, who has reviewed the case (and is now associated with the defense), has called the charges “an abuse of prosecutorial discretion”, and expressed the view that very few prosecutors would have filed the charges given the evidentiary problems.

But wait! It gets stickier. In a deal announced during the preliminary hearing, three of the eight former youths charged with actually firing shots at the Allen car were given a plea bargain. The deal -- if they testify against Robertson and the other defendants -- will be sentences from a high of 23 months to probation.

So what we have here is this: three of those who actually did the shooting get what amounts to a slap on the wrist, while Robertson who is in fact only alleged to have passed out ammunition, and not ammunition that killed anyone-- becomes a chief target of the prosecution. Something seems wrong here

Does anybody believe that if Charlie Robertson was not Mayor Robertson, but instead was an obscure pensioner, living out his life in Arizona or Florida, that he would today be a defendant in a murder case? Or that three admitted shooters in the Allen case would have been given sweetheart deals to testify against him?

Serious questions have been raised about the zeal of this prosecution, and the possibility that political motivations have entered into this case. Have they? We don’t know for sure. There are troubling aspects here, but the prosecution has not yet presented its full case. When that happens we will know whether the evidence warranted the mayor’s indictment for murder.

In the meantime, recent history provides us a cautionary tale to ponder. Since Watergate, we have become almost inured to the excesses of special prosecutors at the federal level and the spectacle of politically inspired prosecutions. Nationally, both Republicans and Democrats have played this despicable game. Happily the experience at the state level, especially here in Pennsylvania, has been better -- not perfect, but better. The integrity of the criminal justice system has only infrequently been breeched by politics.

That is why the Robertson case is so troubling – and the questions it raises so important. By and large politics and the criminal justice are not mixed in Pennsylvania. But once that door is opened, it will be very hard to close. The excesses of the Ken Starr era illustrate the danger poignantly. It encourages paybacks of the worst kind. The family of Lillie Belle Allen deserves justice, but while justice is being achieved an important principle should not be overlooked. The principle here is very simple - politics do not belong in the criminal justice system. Not in this case, not in any case, not ever.

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Politically Uncorrected™ is published twice monthly. Dr. G. Terry Madonna is a Professor of Public Affairs at Franklin & Marshall College, and Dr. Michael Young is a former Professor of Politics and Public Affairs at Penn State University and Managing Partner at Michael Young Strategic Research. The opinions expressed in this article are solely those of the authors and do not necessarily reflect the opinions of any institution or organization with which they are affiliated. This article may be used in whole or part only with appropriate attribution. Copyright © 2001 Terry Madonna and Michael Young.