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.