The following editorial appeared in the Jan. 22, 2009 York Daily Record:
No one could fairly call Tom Kelley soft on crime.
As a prosecutor, he helped put away murderers, rapists, drug dealers, you name it. As a judge, he's not known for coddling criminals.
All of which make his recent courtroom comments in an assault case quite remarkable. During jury instructions, Judge Kelley seemed to be essentially leading the jury toward acquittal on the most serious charges against William K. Knight Jr.
Mr. Knight was accused of aggravated assault on a Hanover police officer, misdemeanor simple assault, resisting arrest and summary public drunkenness -- charges stemming from a Jan. 11, 2008 incident. Policed alleged he was standing in the middle of the street, and when an officer asked him to move onto the sidewalk he "became defiant" and yelled at the officer.
The officer alleged Mr. Knight hit him in the chest and took an "offensive posture."
Ultimately, police hit him with a metal baton and sprayed him with pepper spray, according to an affidavit.
A police video of the incident was shown in court, prompting the judge's remarks during jury instructions. Judge Kelley noted that the beating police inflicted on Mr. Knight amounted to "deadly force." Further, he suggested use of such deadly force was unwarranted, given the circumstances. The judge urged the jury to look closely at the video during deliberations.
Some comments from the judge:
• "The first thing the police officer responding does was swing a metal rod at that citizen."
• "It is called freedom of speech," the judge said, noting it is not against the law to argue with a police officer.
• The judge informed the jury it is legal to "refuse to submit to an unlawful arrest. . . . Let me suggest to you also that if I have my hands up and I am not willingly submitting, that's not resisting arrest. And the police officer can't come up to me with a nightstick and start hitting me about the head, because the police officer during the course of this was using deadly force. Hitting someone with a steel rod is deadly force."
• Police officers, Judge Kelley said, are "your employees. They are not the armed force of the state. This is a democracy. You should look at that video."
It appears the jury did just that -- and acquitted Mr. Knight of the serious charges. The judge found Mr. Knight guilty of public drunkenness and fined him $75.
We'd like to get a look at a video that would prompt a former prosecutor to issue such pointed jury instructions -- and we bet other citizens would, too.
Unfortunately, the York County District Attorney's Office refused to provide a copy, referring requests to the Hanover Police, which has so far not responded to requests.
This video should be considered a public record. It can hardly be withheld on the grounds of police "investigatory" material, as it was shown in open court.
Hanover Police should provide a copy of the video. Actually, the DA's office should release a copy rather than pass the buck to Hanover.
Citizens should be able to view the video and determine for themselves if they think a man was given an unwarranted beating by police. They should demand release of the video. And, at the very least, Hanover elected officials should launch an inquiry into this case.
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