Atheist in “Zombie Mohammed” Case Responds

Exclusive: After running the earlier story on the “Zombie Mohammed” case, I had the opportunity to speak to the victim, Ernie Perce. We previously discussed the remarks of Judge Mark Martin of Mechanicsburg, Pennsylvania in the dismissal of a charge against Talaag Elbayomy, a Muslim who attacked Perce for insulting the Prophet. Perce was parading as a zombie Mohammad in the Mechanicsburg Halloween parade when Elbayomy allegedly grabbed him. Elbayomy was at the parade with his family. Yet, it was Perce who ultimately came into a tongue lashing from Martin. Martin reportedly responded in a statement that I posted previously.

Perce, however, in our conversation added two interesting claims. First, while the judge insisted in his later statement that there was simply no witnesses to the incident to support the charge, Perce says that the person dressed as the Pope did appear in court to testify but Martin refused to allow him to testify. Perce notes that on 33:15 on the tape you can hear the witness (the VOmbie Pope) and the judge say, “put your hands down you’re not a witness.” Second, Martin refused to allow the admission of the cellphone video (though he did allow the admission of a statement of Perce on the YouTube video that Perce made later to show his alleged bias against Muslims).

This adds an interesting angle to Martin’s later statement that “All that aside, I’ve got two sides (of a) story that are in conflict with each other. I can’t believe that if there was this kind of conflict going on in the middle of the street and somebody didn’t step forward sooner to try and intervene that the police officer on the bicycle didn’t stop and say, ‘Hey, let’s break this up.’” If Perce is correct, the court had a contemporary witness and a videotape but decided not to hear that evidence. Moreover, Perce described to me an assault but merely harassing with the pulling off of his fake beard and rough handling by the defendant. Perce also stated that the sign itself was not in perfect condition as suggested by the court, but showed marks where it was used by the defendant who allegedly pulled the string against Perce’s neck. Putting aside the basis for an assault charge, it would seem that the video shows at a minimum an intent “to harass, annoy or alarm another person.”

I would be interested in the basis for the exclusion of a contemporaneous videotape. Clearly if it was altered and not the original, it would be hard to admit. However, the court does not mention either the issue of the videotape evidence or the witness in his later statement. There are reasons why witnesses and evidence can be barred in such circumstances, but it would be good to understand the reason in this case when the court is citing the lack of independent evidence.

Here the defendant admitted that he wanted to stop Perce and the videotape shows a scuffle. The judge says that he believes that the incident occurred. Yet, he stated:

In short, I based my decision on the fact that the Commonwealth failed to prove to me beyond a reasonable doubt that the charge was just; I didn’t doubt that an incident occurred, but I was basically presented only with the victim’s version, the defendant’s version, and a very intact Styrofoam sign that the victim was wearing and claimed that the defendant had used to choke him. There so many inconsistencies, that there was no way that I was going to find the defendant guilty.

Perce’s new information raises legitimate questions over the basis for the dismissal. This is a pretty low-level court where the police officer rather than a prosecutor conducts the questioning. It is not clear whether the police department has the authority to seek review of the decision. Perce, of course, can always sue Elbayomy for assault, but he has time to make such a filing.

Perce also challenged the claims of the Judge that he never threatened jail for the release of the tape. He stated that the judge was irate and told him to destroy the tape and threatened a contempt sanction. Perce says that he asked what that sanction would be and the court alleged stated that it could be “jail or a fine.”

I have also been informed that both Perce and Martin have received death threats, which is a sad reflection on our society. Perce was exercising his free speech and this Judge was doing what he believed was required under the law. I obviously have questions about the decision and objections to some of the comments. However, there are some people who seem eager to add mindless threats and violence to such disagreements. The suggestion that Judge Martin was “applying Sharia” law in the United States is silly. He never suggested that he was applying the same standard or approved of putting people to death for insulting the Prophet. While I believe his comments were worthy of criticism, the attacks on his character and loyalty are grossly unfair.

I will be sharing more details as I learn them.

44 thoughts on “Atheist in “Zombie Mohammed” Case Responds

  1. Next Halloween, I’m planning to dress up as a zombie GOP state legislator and chase female trick-or-treaters around with a vaginal ultrasound wand. Care to join me?

  2. Looks more and more like jar-head justice. I still don’t know if Judge Martin is a lawyer but the more I read the less it sounds like it. My guess: he’s a right-wing, black or white thinker who believes his job is do what he thinks is “right.” That’s not how court’s work and plenty of times judges follow the law even though they personally would make a different choice. Judge Martin deserves every ounce of the he rebuke he’s getting but not the death threats. My guess is that he’ll be back in uniform soon enough and leave the lawyering and the judging to cooler and more competent minds. If not, I see lots of motions to recuse and even more appeals to the Court of Common Please. Those judges there don’t need that hassle and have a way of getting that point across to the electorate when election time rolls around in a small town.

  3. Professor Turley, regarding the claim by Mr. Perce that the man who was marching with him in that parade and who was costumed as the zombie pope was there in the courtroom to testify but was denied by the judge the right to appear as a witness, while I am no lawyer, it is my understanding that a list of witnesses is supposed to be provided prior to the trial. Is this in fact the case? And if so, did Mr. Perce and Sgt. Curtis provide such a list to the court as required? If that is an actual requirement, it may be that they failed to do so and so the judge was right to refuse to hear the man’s testimony.

    I was initially as outraged as any when I began reading about this case online at various sources, but the more I read, and particularly the more I listened to the recording of the events of the trial provided by Mr. Perce, the more I have become convinced that he and his counsel, Sgt. Curtis, were alone responsible for their loss in court. While I believe that it was a complete overstepping of the limits of his official duties as a Magisterial District Judge to insert his own religious beliefs and opinions in lecturing Mr. Perce, based on the evidence actually presented to him in court I don’t see how Judge Martin could have ruled other than he did, much as it pains me to say that.

    I have seen the video made by Ernest Perce of the incident posted on YouTube, and rather than being grainy as some stories have it, it is simply too dark to make out any detail whatsoever. There are words and noises, and text inserted into the video by Perce describing what he says is happening, but the video itself is simply not worthy for admission as evidence of any kind in a court of law.

    Lacking that, the only other evidence introduced to the court were the testimonies of the two men, Perce and Elbayomy, and as such, the Judge did rightly rule that it was simply the case of one man’s word against anothers.

    I have to question why Sgt. Curtis was appearing to argue the case for Mr. Perce rather than an attorney. Is it the practice of Pennsylvania Magisterial District Courts that the police officer who responded to the call should then prosecute the case before the Court? I find that hard to believe. I can only conclude that they, Sgt. Curtis and Mr. Perce, simply blew their one good chance to counter the Judges ruling that it was a case of one man’s word against another by having Sgt. Curtis act as Mr. Perce’s attorney rather than acting as a sworn witness. Had he acted in that capacity instead, they would have had two sworn testimonies against Mr. Elbayomy rather than just one, Mr. Perces in his charge that Mr. Elbayomy laid hands on him, attempting to tear the false beard off and the sign from around his neck, and Sgt. Curtis’ sworn testimony that Mr. Elbayomy did admit to him as the responding police officer that night that he had indeed done so. The result was that Sgt. Curtis was instead reduced to impotently attempting as cross examiner to get Mr. Elbayomy to admit in court under oath that he had made that admission to him on the night in question; an attempt that was futile as we have heard.

    Judge Mark Martin grossly overstepped his bounds by lecturing to Mr. Perce in the matter of religion. He further used crude and very unprofessional language, “doofus” and “piss off.” But these are matters for whatever governing agency Pennsylvania might have in place to govern the behavior of sitting judges in a court of law, and I hope that they will act accordingly. In making his ruling, though, Judge Martin (and it really does pain me to call that man Judge) appears to be completely correct. Based on the evidence presented before him, if he indeed did not prevent Mr. Perce from providing witnesses on his behalf as legally permissable, then I think that he did rule as any judge would have had to rule, and dismiss the case for lack of evidence.

  4. Prof Turley, I was wondering if it would be possible to charge the Muslim attacker with perjury for his lying under oath that he never touched Mr. Perce? We have the video tape, his testimony, the cops testimony that the guy admitted to grabbing Perce, and even the defense attorney stated in his closing that there MAY have been an assault. How would one go about getting the DA to charge the guy for perjury or is there some way Perce could advance a charge on his own?

    This would be good since the perjury would be a felony charge and out of the court of the Muslim judge. A felony conviction would also force this Muslim fanatic out of the US and be deported back to whatever country he came from so he can call the cops to his hearts content when he sees blasphemy.

  5. I got news which concerns surveillance, etc.
    Pardon, it’s off-topic just here, but here seems to where you are just now.

    I was on “Georgia”, followed AN link to domestic Drones article,
    came here, followed AN’s link to “hundreds of threats…”link to another site.

    What do I see: A google text ad offering FLIR sensor drones…….!
    Now I’m either paranoid, or Google is using their new contractual rights between services to watch what’s on one visited site to pick and display a related ad at the next site I visit.

    No, it ain’t BigBrother, it’s Google tipping off what BB can do and certainly does, ie track all we read, parse it for key ideas, and scan for key words. So when Google loads down, you don’t get to approve it doing so as with Itunes, with a new version a new invasion of your privacy can follow with it.

    Just so you can up your paranoia a bit if you are so inclined.

  6. Blouise and Woosty,
    You slay me.
    Blouise No, it’s the kåt, cute, curt court. Translate it.
    He’s kåt (slang variant) for Islam. Do you know why he retracted the claim that he was a muslim, because retracting constitutes apostasy, which is punished by execution in Iran, etc. Many in Iran this year. Fun place.

  7. Could we please be advised of the EXACT nature of the charges that were filed against the defendant ?

    In the beginning of the tape it refers to “intent to disrupt a parade” (to that effect). That was “clearly” not proven.

    The judgement however implies a different offence, and discusses “harassment or alarm”.

    Without knowing the full nature of the charges, it is difficult to comment on conduct and verdicts.

  8. The court audio at 31m 25s says “I am a Muslim, I find it offensive”. What did the judge mean by that ? Was he referring to himself, or was that supposed to represent the train of thought of the defendant ?

  9. I fail to see why “the attacks on his character and loyalty are grossly unfair.”

    His ruling in this case is so spectacularly wrong that the only other things to question would be his intelligence or competence.

    So should we give him a mulligan on this one because he’s not a bad guy, he’s just a really bad judge?

  10. This is a difficult case to consider if one takes a look at what is “offensive” and how we’ve seen rulings in the past. I’m reminded of Chaplinsky yelling “Goddamn Fascists” and that making its way to SCOTUS. He was ruled against and “fighting words” got legs.

    So if that got legs under “goddamn fascist” which is so passe today, then how would an offensive image of Muhammed be considered if you think of what the Judge is saying. He’s not necessarily advocating for a religion as much as stating the level of the obscenity it represents to the person who seems to have been provoked to violence.

    One, I’m with Mr. Turley on this that it the decision here is questionable as “evidence dismissal” being used where evidence was available, and all. But back to comparing it to Chaplinsky, we have seen courts ruled in favor of someone’s “offense” instead of the right of the offender using ‘free speech’.

    If we are to reconsider Chaplinsky in light of other cases like Cohen which implied a lose interpretation of ‘offensive’, do we have markers for what SCOTUS has said about our right to offend?

    In order to make a political point about religion, I’m likely to offend if I’m bluntly honest. If I were an atheist and wanted to make that point, this is a country where we’re allowed to have protests against religion and its influence. If the damn Phelps family can be protected, and the KKK gets armed escort, then sorry, Zombie Mohammed is not offensive. In my attempt to respect any religion, I first assess its faith and faithlessness. Attacking non-believers who merely mock you is shallow and faithless. I have no need for their wingnuttery.

    If this judges ruling were what we had been living by all this time, there’d have been lots more assaults. I can find things much more offensive than this to go off about, I’m a Scot!

    What do you think?!?

  11. The decision in Chaplinsky said that words are not protected if they are only derisive and serve no social purpose and convey no ideas. In this situation, that would not be the case. This is not a gratuitous insult and also not directed, intentionally, at an individual. I think that may matter. It was ridicule, yes, but ridicule is protected, and ridicule of religion doubly so.

    We all remember the Nazi march through Skokie case, although not the details.

    I can understand that not all words are protected. Lying under oath, fraud, crushing the spirit of a minor. The state also can resort to other methods where criminalization is prohibited, although let’s not give them any ideas.

    In the Chaplinsky case, I think that he should have been protected by the fact that what he said was true, or reasonably close to the truth. In any case, his was not an empty slur; it was a complaint about ineffective law enforcement.

  12. martingugino, well said about the distinction of an insult directed at someone and a person taking insult and claiming offense.

    i’m curious if there would be a non-muslim case this judge would uphold like..Phelps? clearly they are directing their venom at particular people in proxy of their other complaints about a country. Perhaps someone should inform this judge about that controversial decision.

    The ruling in the Phelps case gives pretty wide room in my book for offense, because they are about as pugnacious as it gets.

  13. In a matter also involving the violation of one’s Civil Rights, I was wrongfully separated from my daughter in a Divorce and Custody battle in which my ex merely expressed her wish that my future contact with my daughter be professionally supervised, and the Judge eagerly complied. (No facing my accuser, no preparing a proper defense, no trial – no Due Process!) Four years of Court Battles (and unlimited ex wrongdoing – such as denying my visits for a year in direct violation of a standing Court Order) later and a 2nd judge reversed the ruling without a word, except to say we’re wiping the slate clean and starting over, thus implicating the first judge. Do I not have a case against the first judge? And is there not a lawyer experienced in handling Federal cases who would take this matter on consignment? Could someone please contact me at vswm at hotmail dot com, and please put “Federal Lawsuit” in the subject line?

  14. Ran into this article on web, any comment?

    JHANG: Following a blasphemy case being registered against Facebook CEO Mark Zuckerberg and Cultural Editor of Danish Newspaper Fleming Rose, another blasphemy case has been registered at the Kotwali police station in Jhang against websites and Florida Pastors Terry Jones and Wayne Sapp.
    An FIR No.234/12 was registered on the order of the Jhang Session Judge Arshad Masood, acting on the application of Advocate Aamir Mehmood Shakir Noal. The fresh case charge social media websites Facebook, YouTube, search engine Google, along with Terry Jones of State of Florida Church, Pastor Wayne Sapp, Florida Church and President Pakistan Telecommunication Authority for using derogatory remarks with respect to the Holy Prophets (Peace be Upon Them).
    The advocate had in his application termed the derogatory remarks as war among Muslims and non-Muslims and a kind of international terrorism.
    The complainant contended in his petition that “he visited the bar room of the district bar association Jhang along with his colleagues. He visited websites YouTube, Facebook, Google and found that the Holy Quran had been burnt by Pastor Wayne Sapp on the order of Terry Jones in a Florida Church on March 20, 2011.”
    “The burning was carried out by Pastor Wayne Sapp under the supervision of Terry Jones who last September drew sweeping condemnation over this plan to ignite a pile of Quran pages on the anniversary of 9/11” Noal contended.
    The event was presented as a trial of book (Holy Quran) while the Quran was found guilty and then ‘executed’.
    The jury deliberated for about eight minutes. The Holy Quran had been soaking for an hour in kerosene, before it was put on a tray in the centre of the Church and Pastor Sapp set it alight with a barbeque lighter.
    “The book Holy Quran was burnt for around 10 minutes while some on lookers posed for photos,” Noal said.
    He added that he saw the video of the incident along with his colleagues including Advocate Mehtab Ahmad and Advocate Niaz Ahmad Ranjha on above mentioned websites.
    Noal claimed that by burning the Quran, the name of Hazrat Mohammad (PBUH) including along with the names of other prophets such as Hazrat Ibrahim (Abraham) (PBUH), Hazrat Musa (Moses) (PBUH) and Hazrat Essa (Jesus) (PBUH) were defiled.
    “They are guilty of offence of blasphemy under sections 295-A, 295-B and 295-C. The act of the accused falls within the territory of Pakistan. Due to such mischief, I along with all Muslims felt great anger and it also trespasses against the Muslim world. Try to create war among Muslims and non-Muslims. Moreover, it is a kind of international terrorism,” the advocate asserted.
    The petitioner claimed that the accused can be persecuted through Cameron Munter, the Ambassador of US based in Islamabad.

  15. to Frank – I assume that someone can be tried in absentia in another county under the laws of that country. Possibly re-do the opening request for a comment as a multiple choice?

  16. Cheneywatch – I looked at the Phelps case. It gives what for me is a new idea – of the “not provably false assertion”.

    Not sure where that goes…

  17. This is more than a judge doing what he thinks is right. This judge excluded viable evidence because it didn’t fit in with his preferred version of the fact, then proceeded to lecture and insult the victim for exercising his constitutionally protected rights. The judge didn’t even attempt to appear neutral and sent a message to the public that the law will not protect those with unpopular beliefs. This is misconduct.

    If you agree, please sign this petition and share it:

  18. This guy (Joseph French who wrote that article you’ve linked to) sums up his own personal feelings well. But he doesn’t sum up the entire case at all. He belittle the athiest in expressing his own outrage for his actions in offending Muslims while saying nothing to the Muslim for offending Americans. He belittles the main religious group in America, Christians in comparison to the devoutness and attentiveness to the Muslims in their own beliefs. And as an American, though I can’t call myself a Christian, I am every bit as offended by that as that Muslim man was by the actions and words of the athiest in that parade was. And to me and to the vast majority of Americans the principles, laws and traditions of America are vastly more important to those of us living in America who actually love our country and take pride in it than the principles, laws and traditions of Islam are to Muslims anywhere.

    Judge Mark Martin has offended me personally as an American just as severely as the athiest offended Elbayomy as a Muslim, and maybe even more so for having the audacity and arrogance to express his personal feelings as he did while acting as an agent of American justice.

    I do believe however that the judge made the right ruling based on the evidence presented before him in court, one which any fair minded judge would have had to do whatever his personal beliefs might be. His beliefs just made him glad that he was able to do so. See my comment earlier in this topic of conversation.

  19. In the book “How Fatima Started Islam: Mohammad’s Daughter Tells It All” there are 250 pages of insults and mocking of Islam. The first words of the Qu’ran according to the book were written at Mohammad’s Saloon & Brothel, where Fatima was an inmate, were “The price of pussy must go up.”

    Outside of the USArmy the book is little known but still sells it and nobody has ever objected, the First Amendment lives.

  20. Samuel, are you saying that inside the USArmy, the book is well known? What is the connection to the army?

  21. I was turned on to the book, “How Fatima Started Islam: Mohammad’s Daughter Tells It All” by a fellow in the USArmy who was stationed for 2 tours in Afghanistan (1) and Iraq the second time. He told me that the book was secretly read by many soldiers there, but that they had to be very secretive about reading it where it slams and mocks Islam so much. For one who dislikes terroristic Islam it is the funniest book in the world. $9.99 from and they have sample pages to read if you go to Amazom.

    Hope this answered your question

  22. “…and this Judge was doing what he believed was required under the law.”

    This is what this wonderful judge said: “I’m a Muslim, I find it offensive. But you have that right, but you’re way outside your boundaries or first amendment rights.”

    …and more. Read:

    So, Mr. Turley, you are not just wrong, you are massively wrong.

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