We have had a great deal of discussion about the controversy over the remarks of Judge Mark Martin of Mechanicsburg, Pennsylvania in the dismissal of a charge against Talaag Elbayomy, a Muslim who attacked an atheist Ernie 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 has now reportedly responded with the message below. I am not sure how much it helps on the merits, but he does clarify a couple of points if this response (which has appeared on several sites) is genuine.
In the hearing over the harassment charge, Martin first dismisses the charge. In the hearing, Martin notes that the evidence of the victim is conflicted and that there is insufficient basis to sustain a criminal charge. While the arresting officer disagreed (and the video seems to show a case of assault rather than harassment), that is the role of a judge as an impartial court. Martin states that he does not believe that the incident occurred as described by Perce without more witnesses coming forward: “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.’”
Notably, however, Martin says that he didn’t doubt that the incident occurred and the defendant admitted that he acted in response to an insult to Islam. Yet, this is not viewed as sufficient to sustain a harassment charge. Yet, putting aside the merits of the dismissal, it is what followed that concerned many of us — a lecture on Islam and the first amendment. Martin suggests that free speech was not meant to protect conduct like Perce’s. The tape below includes such statements as:
In many other Muslim-speaking countries, err, excuse me, many Arabic-speaking countries, predominantly Muslim, something like this is definitely against the law there, in their society. In fact, it could be punished by death, and frequently is, in their society.
Here in our society, we have a Constitution that gives us many rights, specifically First Amendment rights. It’s unfortunate that some people use the First Amendment to deliberately provoke others. I don’t think that’s what our forefathers intended. I think our forefathers intended to use the First Amendment so we can speak with our mind, not to piss off other people and cultures – which is what you did.
The veiled reference to Sharia law in this context was highly problematic. As I said earlier, those countries are examples not of some loosely fitting cultural defense but oppression and medieval justice. What is particularly disturbing, however, is Martin’s view of the first amendment.
In this statement, Martin denies being a Muslim. The tape appears to show him saying that he is, but he would know. In the end, the judge’s religion should never have been part of the proceeding to start with. Moreover, regardless of his religion, it is his legal views that seem grotesquely out of place.
Martin also denies threatening Perce with arrest for releasing the tape. He admits that he threatened to hold him in contempt and suggests that the controversy is proof that the rule not to publish the tapes is valid. However, while denying the issue about his faith, he does not question whether this is an accurate account of his statements on the first amendment.
This story certainly has legs. As you might imagine, the public is only getting the version of the story put out by the “victim” (the atheist). Many, many gross misrepresentations. Among them: I’m a Muslim, and that’s why I dismissed the harassment charge (Fact: if anyone cares, I’m actually Lutheran, and have been for at least 41 years).
I also supposedly called him and threatened to throw him in jail if he released the tapes he had made in the courtroom without my knowledge/permission (Fact: HE called ME and told me that he was ready to “go public” with the tapes and was wondering what the consequences would be; I advised him again to not disseminate the recording, and that I would consider contempt charges; he then replied that he was “willing to go to jail for (his) 1st amendment rights”- I never even uttered the word “jail” in that conversation).
He said that I kept a copy of the Quran on the bench (fact: I keep a Bible on the bench, but out of respect to people with faiths other than Christianity, I DO have a Quran on the bookcase BESIDE my bench, and am trying to acquire a Torah, Book of Mormon, Book of Confucius and any other artifacts which those with a faith might respect).
He claims that I’m biased towards Islam, apparently because he thinks I’m Muslim. In fact, those of you who know me, know that I’m an Army reservist with 27 years of service towards our country (and still serving). I’ve done one tour in Afghanistan, and two tours in Iraq, and am scheduled to return to Afghanistan for a year this summer. During my first tour in Iraq, I was ambushed once, attacked by a mob once, sniped at once, and rocketed, bombed, and mortared so many times that I honestly don’t know how many time I’ve been attacked. Presumably by Muslim insurgents. My point: if anyone SHOULD be biased towards Muslims, one would think it would be me. I’m not, however, because I personally know or have met many good, decent people who follow Islam, and I shouldn’t characterize the actions of those who tried to kill me as characterizations of all Muslims.
When I asked him why he dressed up as “Muhammad zombie,” he told me that it was because he was reflecting the Muslim belief that Muhammad rose from the dead, walked as a zombie, and then went to heaven. That was one of the reasons I tried to spend 6 whole minutes trying to explain and de-mystify Islam through my own knowledge, and in an attempt to prevent an incident like this recurring in my community. Unfortunately, the message was obviously not received in the vein that I had intended. And, in the interest of full disclosure, I did use the word “doofus,” but didn’t call him that directly; I said something akin to “ if you’re going to mock another religion or culture, you should check your facts, first- otherwise, you’ll look like a doofus.”;
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.
A lesson learned here: there’s a very good reason for Rule 112 of Rules of Criminal Procedure- if someone makes an unauthorized recording in a Court not of Record, there’s no way to control how it might be manipulated later, and then passed off as the truth. We’ve received dozens upon dozens of phone calls, faxes, and e-mails. There are literally hundreds of not-so-nice posts all over the internet on at least 4 sites that have carried this story, mainly because I’ve been painted as a Muslim judge who didn’t recuse himself, and who’s trying to introduce Sharia law into Mechanicsburg.
In this case, the release of the tape would seem to have served the interests of justice in that the judge has some highly mistaken views about free speech. This purported statement from the judge does not question the accuracy for those statements on the first amendment. Moreover, with the guarantee of public hearings (limited in relatively rare cases), the public has a right to know about such controversial statements from individuals given judicial power.
my question is why didnt a Catholic try to throttle the Zombie Pope?
Rules For Judging:
Judging 101: You are never criticized for what you didn’t say in making a ruling. Make your ruling and then shut up.
Judging 102; If you do decide to make a statement when ruling first see Rule 101.
Judging 103: If after careful consideration of Rule 102 you still decide to make a statement try not to piss off the entire courtroon (and by extension the legislature) in your statement.
Judging 104: If you do piss everybody off while ruling, NEVER EVER issue a clarifying statement which will increase the hole you’ve dug exponentially. The damage is already done and you’d best contact your old law partners about a job opening.
Judging 105; After you’ve left the bench and are listening to a client drone on and on about some eggregious breach of justice in his traffic case, remember, with kind nostaligia, Rule 101.
My criticisms were of the Professor’s journalistic methods, not his legal analysis. We agree that the First Amendment issue is a serious one. I just lament that it is becoming “common practice” to run internet news without first making a serious effort to verify the facts (i.e. Joe Paterno death). Distinct issues, sorry for the confusion.
RDD,
A correction was made as more facts came to light; a common practice and evidenced by this updated paragraph from the original post.
“There is a surprising story out of Mechanicsburg, Pennsylvania that seems the perfect storm of religious tensions. You begin with Ernie Perce, an atheist who marched as a zombie Mohammad in the Mechanicsburg Halloween parade. Then you add Talaag Elbayomy, a Muslim who stepped off a curb and reportedly attacked Perce for insulting the Prophet. Then you have a judge (Judge Mark Martin) who threw out the criminal charges against Elbayomy and ridiculed the victim, Perce. The Judge identifies himself as a Muslim and says that Perce conduct is not what the First Amendment is supposed to protect. [UPDATE: The judge says he is not a Muslim despite what is heard by most listeners on the tape. That being the case, the criticism of the comments remains.]”
The salient part of the story isn’t that the judge was a Muslim or a Lutheran, but rather that he didn’t understand the 1st Amendment basics as well as a 1L.
Gene, it would have been much more newsworthy if the headline to the original story “Muslim Judge” [since updated] had been factually verified. That’s all I’m saying. The First Amendment issues raised by the Professor are clearly serious, and it is unfortunate that a judge (even at the district level) went on such a misguided rant. But the reason the story got so much play was clearly that the judge was alleged to be a Muslim. This is the kind of thing the writer of a news story should verify.
RDD,
I’m a little disappointed in you that you don’t think a judge displaying a fundamental lack of understanding of the 1st Amendment is newsworthy.
Prof T, I must say I am a little disappointed you ran with this story without doing a bit of fact-checking first.
Your only source was the YouTube video of a highly interested (and clearly somewhat fanatical) party. If you’re going to start “breaking” stories, as opposed to just commenting on ones already in the news, a modicum of journalistic effort would be desirable.
Next time, call MSNBC and have them look into it for you, with the agreement you’ll be allowed to go on and do the commentary when they run the story. Alternately, try calling the judge yourself to confirm the facts of the case.
A lot of (ongoing) confusion could have been avoided if you had just put a little bit of effort into verifying these facts before creating a nationwide internet “news” story that is doing little more than furthering the reputation of internet news as questionable/unreliable.
dont-tread . . . liberal judges? whats the color of the sky in your world? The Constitution has a very simple provision, its in the first amendment, that prevents not just Muslims but every religion from interfering with free speech among other things. There is a great movement currently going on to change that so certain brands of one certain strain of religion can do that & their fear is that they have not yet figured out how to not give that same advantage to every other sky pilot. Don’t want Sharia law in the US? Good, enforce the 1st amendment.
As for not using the 1st for provocative speech (n above)? Then why have it at all? If the only speech that is protected is noncontroversial then there is no free speech at all. This is why the ACLU has fought for the rights of all Americans, even with agendas the ACLU opposes, to be allowed to express themselves. WHile it is true this expression can generate an unwanted response that is a separate issue and not the fault of the first amnd.
This judge should study the First Amendment cases before he embarks on a trek to master comparative religion.
I don’t think the US Constitution should be mis-construed to allow muslims to intefere with Americans rights, especially on freedom of speech. Political correctness has somehow taken the front seat to common sense. It is liberal thinking judges doing the driving.
The article could be articulated better. It takes a second or third reading to understand the who. what, where, why and when of this article. Those are the elements of a journalistic story.
“It’s unfortunate that some people use the First Amendment to deliberately provoke others. I don’t think that’s what our forefathers intended. I think our forefathers intended to use the First Amendment so we can speak with our mind, not to piss off other people and cultures – which is what you did.”
He’s not saying that the first amendment doesn’t protect the conduct. He’s saying that being a jackass is still being a jackass even if your conduct is protected by the first amendment.
It protects from government restraints, not someone calling you out on it.
I highly doubt this guy is an originalist, so what the founders intended doesn’t matter. Second, even if he is, the context makes it clear that he wasn’t using intent in that manner.
He said “if I’m a muslim.”
Seriously, you’re blowing this completely out of proportion. I have to ask if you’ve actually been in a courtroom? Those of us who practice law in a courtroom rather than in a classroom and on the internet know that judges ramble a lot. This judge is basically saying, “You were doing something that could have gotten you seriously hurt. Don’t do it again.”
He did not actually make his ruling based on that rant. He made his ruling based on the fact that the plaintiff did not meet his burden.
But hey, it got you on CNN! Now go jack up tuition on students again.
Is it normal for a judge to issue a moral lecture after making his ruling? I mean, I can’t see that it’s anything else, other than perhaps an attempt at justifying to himself something that he knows is wrong. In which case, he would have been better off just dismissing the case and moving on. I’m obviously not a lawyer: just an interested citizen. But, has the Judge Judy personality invaded the judiciary, or was it always there?
The Muslim complaining is wrong from the get go. His response is typical. The Judge was out of line with his last response against the one with an external costume.
What’s that smell? Why . . . that’s Old Fashioned Bullshit! And here I am without a can of Old Fashioned Bullshit Repellent ™.
I don’t buy a word of it.
He got caught mangling the law. Which he does not address or deny. This is the only salient point.
The judge is simply, a liar. End of story.
Why does the judge say that he SHOULD be biased against Muslims because he is a vet? As one vet to another, that is a dumbass thing to say.
Raff.. I am with you to a point….I think the judge did what he did based upon the information/ indictment in front of him… People complain about judicial Activision….. But good points…..
Interesting response. I am a skeptic of this judge. Why would a judge want every religious thesis on his bench? Strange to say the least.