Judge In “Zombie Mohammed” Case (Reportedly) Responds

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.

81 thoughts on “Judge In “Zombie Mohammed” Case (Reportedly) Responds”

  1. “I see the logic of the Judge. The First Amendment has “limits”. For instance you can not go into a crowded room and scream fire. That would endanger the mass. ”

    Walking down the street dressed as a zombie is like yelling fire in a theater? Does the sun rise in the south and set in the north as well in your world? Your mistake is to confuse a legitimate fear, fire in a building, with your personal sensitivities to religion. No sane human being would cause a stamped because someone had a Halloween costume on in a Halloween parade! There is no danger to the public here! What you are really saying is that a rape victim “asked” for it because they were wearing a skirt. You are blaming the victim of crime by pointing to the rationalization for the criminal act of the defendant.

  2. I am amazed how little the people commenting on this story know about the First Amendment! Why are people defending the attacker? The right of free speech is critical to our society; why do you wish to throw out freedom because someone is offended? That is absurd and will destroy the fabric of our society. Do you not understand what freedom is and how fragile it is? Once you start censoring the citizens you destroy freedom. This case and defending free speech is exactly what the founders of our country had in mind. Common sense lets us understand that freedom of speech must rule above our politically correct confusion regarding other cultures. How can you critique and defend democracy without free speech? I will spare you the definition of speech vs. “hate”. This is so clearly a case of speech and not hate that it takes total ignorance of US Supreme Court precedence to argue otherwise.

  3. Jack E. Brown1, February 27, 2012 at 10:54 am

    I see the logic of the Judge. The First Amendment has “limits”. For instance you can not go into a crowded room and scream fire. That would endanger the mass. Had this Atheist been dressed in a KKK uniform, the outcome would have likely been the same, or worse. Just because you have the opinion that Muslum’s are all EVIL, you should not provoke them in this manner. I know from my own personal feelings that had a person donned a costume showing Jesus in a disparaging manner, there would have been another assault.
    ————————————
    also;

    Who has the opinion that Muslims are all EVIL??????
    Is that what you think was going on? Maybe Mr. Perce was pointing out something a tad more earth-bound…ie: people come to this Country with respect for it and then unthinkingly or unknowingly behave in ways that change it into the very place they have fleed from. In this Country our LAW is that we don’t fight at the merest perceived provocation. We live above our gut. We respect other peoples beliefs but don’t neessarily share the belief. We don’t do Sharia law and we even have a separation of Church and State.
    The day that that is defeated is the day the Law becomes Sharia.

    Allso….can you quote where Muhammed says to act like a thug towards others….I can’t find it in my Quran….

  4. Jack E. Brown says: “I know from my own personal feelings that had a person donned a costume showing Jesus in a disparaging manner, there would have been another assault.”

    Could you explain to me why your beliefs are more important than someone else’s rights?

  5. Jack E. Brown1, February 27, 2012 at 10:54 am

    I see the logic of the Judge. The First Amendment has “limits”. For instance you can not go into a crowded room and scream fire.
    ————————————————–
    My understanding is that you certainly can, and morally are obligated, to do just that….if there is an actual fire.

    don’t look now but your civil liberties are on fire….

  6. I see the logic of the Judge. The First Amendment has “limits”. For instance you can not go into a crowded room and scream fire. That would endanger the mass. Had this Atheist been dressed in a KKK uniform, the outcome would have likely been the same, or worse. Just because you have the opinion that Muslum’s are all EVIL, you should not provoke them in this manner. I know from my own personal feelings that had a person donned a costume showing Jesus in a disparaging manner, there would have been another assault.

  7. So, why was there not an assault charge (and only harassment)? Who is in charge of making the decisions as to what charges are brought – and why do we think assault was left off the table here?

  8. I don’t CARE what takes place in Muslim countries. Taalag is in THIS country now and he’d better abide by OUR laws. If he can’t do that, then he needs to go back where he came from.
    And I don’t care that the judge is non-Muslim and a veteran. He is dead wrong about the 1st amendment. It is intended precisely to give us the right to “piss” other people off. That’s the whole problem with this political correctness BS; you’re not supposed to say anything that “offends” anyone. But that means virtually never saying anything about anything, because someone will always take offense to even the most benign remark.
    And finally, in the vein of PC, if we are so eager and willing to let other people’s customs and social norms trump our own, we will soon have no culture in this country.
    Sad to say, but I hope this guy doesn’t come back from his next tour; he can only do harm from the bench with his point of view.

  9. k:

    “Because he blocked the door with his arm.”

    Actually k that’s common law false imprisonment and not common law assault which places the victim in immediate and reasonable fear of offensive contact which could jepardize her safety. Some jurisdictions define assault more broadly but it doesn’t seem to have the classic elements in your scemario.

  10. The muslim can dislike the costume all he wants. That’s his right.
    But when you TOUCH another person, without concent/permission,
    it is ASSAULT. Plain and simple.

    I know a guy who was having a disagreement with his girlfriend. He was trying to get her not to leave/storm off, to stay and talk it out…he was JUST standing in the doorway saying- don’t leave please. He NEVER touched her (and she never claimed that he did). She charged him with assault. It’s on his permanent record. Because he blocked the door with his arm.

  11. Dave:

    Here’s the bottom line:

    The Defendant admitted he touched the Complainant in an offensive manner. He admitted that he did so intentionally and that the motive was his mistaken belief that the laws were the same here as in his homeland theocratic state with respect to depictions of the Prophet. The Complainant corroborated that version of events. Under what legal excuse would this not be battery? Fighting words? This is what the US Supreme Court says about fighting words: words likely to provoke the average person to retaliation and thereby cause a breach of the peace,

    Would the average person seeing the Complaint dressed as he was at a Halloween parade full of costumed figures be provoked into a physical assault? My reasoning and the events of that day tell me “no” since no others were so incensed. Given that, I think the Magistrate Judge got it wrong and he did so for all the wrong reasons.

  12. Dave1, February 27, 2012 at 8:19 am

    The costume and words Mr. Perce used can be easily interpreted as ‘fighting words’ with the sole purpose of insulting Muslims.
    ———————————————–
    It was a HALLOWEEN costume.
    I dress up like a witch every year and have yet to be attacked by a cadre of Wiccans.

  13. Yes. And not just by the Free Speech Clause, but by the Free Exercise and Establishment Clauses as well. You have a right to pick and practice your religion of choice in addition to being critical of other religions. You don’t have the right to force your religion upon others (including critics) by violence. That some practitioners of “Islam” (as well as some “Christians”) think that they have the right to beat their God into you if you don’t respect or practice their beliefs is going to put them against the civil prohibition of violence.

    If “your God” can’t take criticism, it isn’t much of a god. Or a petty jackass at best. God created the universe but can’t take criticism or a joke from humans? We don’t even fully understand gravity yet, something He allegedly made from scratch, but our criticisms and jokes somehow harm him? Please.

  14. @Dave,

    Absolutely protected. If the speech of Westboro (spelling?) Baptist Church is protected, then Perce’s certainly is. Whether it’s desirable to be drawing comparisons to WBC is another conversation altogether, but his speech is protected. There is no question.

  15. The costume and words Mr. Perce used can be easily interpreted as ‘fighting words’ with the sole purpose of insulting Muslims. His costume and the utterance of the phrase “I am Mohammed” can and did incite immediate breach of the peace. The US Supreme Court ruled 9-0 to limit free speech when it comes to fighting words back in 1942. Do you believe that Mr. Perce’s actions are really protected under the first amendment?

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