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. FUN FACT! If you lie in court, you go to jail for perjury. If a judge (or prosecutor for that matter) lies in court, he has sovereign immunity and can’t even be sued.
    I don’t think that this is always true…

  2. What the First Amendment is lacking is just a few words:
    ” – but don’t be a dick about it”

    The intention of the Amendment is noble.
    ‘Being a dick’ under the protection of the Amendment is not noble.

    ‘Being a dick’ should not really be spoken of as if it were a noble “right”.
    ‘Being a dick’ is really just something that is ‘not against the law’

    There are many things that are ‘not against the law’ and yet are highly undesirable. Look at some of the activities of Wall St and where that got us.

    I’d be in the vanguard of a move to defend the rights of the trampled and oppressed.
    But – I can’t bring myself around to considering that a judge indicating that Perce was behaving like a doofus can be magicked into ‘trampling his rights’.
    The judge did not make an order forbidding Perce from being a doofus in the future.

    It’s the parents I blame. Where was his aged mother? Why didn’t she teach him not to be a dick when she had the chance?
    Just as well there;s a judge who can act in loco parentis and give him a good talking to.

  3. “A domestic dispute. Happens all the time. Both of them upset. Woman using the law to lash out at the guy. It’s over. No real case to answer”

    After giving this some thought, I find the idea that a judge would make a decision based on facts not presented in evidence, and based only on social class and sex, quite disturbing. If it were a man blocking a man, the consequences might be dire; especially in a state with Castle Doctrine with no duty to retreat. Given that, should the woman be treated differently? Not without denying her rights.

  4. “2) Perce realises that whatever he was trying to achieve was not so vital that it outweighs the possible offence to others.
    Both would come out of it as better people. That’s what is important.”

    No, what’s important is that the law is properly applied. Free speech may be some niggling little detail to you, but it is important enough that it was guaranteed in the very first amendment to the constitution. You don’t make someone a better person by trampling on their rights. In fact, we all come out the worse for it.

    “I’d be fascinated to see what this judge would make of one of the more extreme Westboro Baptist Church stunts.”

    What would be the point? WBC has a lawyer on staff (and in the family), and they’ve been down the road fairly often. They know what they can do and what they can’t. They also know what the other side can do.

  5. The beauty of a court system is that is an opportunity for humans to examine the unique circumstances in a specific case – rather than have some system that mandated decisions based on a limited set of check-boxes based on the letter of a set of laws.

    It is open to a judge to send someone to prison and with a criminal record. The offence might have been slight and technical, but the record is as damming as for a far more serious offence.

    Take k’s comment above
    “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.”
    Mespo thought it more false imprisonment than assault.

    A judge might have looked at the particular incident and decided that
    1) A domestic dispute. Happens all the time. Both of them upset. Woman using the law to lash out at the guy. It’s over. No real case to answer
    2) OK. He didn’t assault her. He blocked the door for 30 seconds – but technically that’s a criminal offence – so jail for you my man.

    In the zombie case, I think that the best result for society would be
    1) Elbayomy realises that he can’t take physical action in such a case. It doesn’t actually need a criminal conviction for him to take that in.
    2) Perce realises that whatever he was trying to achieve was not so vital that it outweighs the possible offence to others.
    Both would come out of it as better people. That’s what is important.

    I’d be fascinated to see what this judge would make of one of the more extreme Westboro Baptist Church stunts.

  6. The zombie is not being charged with either disrespect or heresy, so that is as it should be. The question is can this other person accost the zombie, whether he is, or is not, being disrespectful or committing heresy.

    The answer there seems pretty much – no.

    Aside from the claim that the prosecution failed to prove the acts beyond a reasonable doubt (wasn’t there a video?), the defense of “fighting words” shows the weakness in the “fighting words” line of thinking, and the associated cultural assumptions: what constitutes an instigation?

    I’d say relegate “fighting words” to the sentencing phase. Is there a case that establishes “fighting words”?

  7. –Trebuchet wrote: “In a sane society, the incident could have been resolved by both parties realising that their actions were unacceptable.”–

    Apparently you are the one who is not paying attention to your own posts. It does in deed take two parties to have a disagreement. But it only takes one to commit a violent act. Adults can have disagreements without committing violence on each other in the part of the world where I live.

    Some of the most hateful spew coming from any group in America comes from the Westboro Baptist Church (google is your friend). But, the various veterans and religious groups have decided not to retaliate against their hateful speech with violent actions – no matter what the provocation.

    There simply is no way to protect your sensibilities without restricting my rights, and vice versa. You have the right to speak. You do not have the guarantee that the speech of others will not offend you, nor do you have the right to retaliate with violence if it does. If you don’t like the speech, don’t listen to it. Go elsewhere. Do something else.

  8. The most chilling thing is the judge raised the “mistake of law” defense (which is almost never applicable — and certainly not, here) in discussing the defendant’s mens rea. Judge Martin said the attacker could not have had a criminal intent to harass because he believed the victim — “Zombie Mohammed” — was breaking the law.

    That should stop everyone dead in his tracks.

    Just wait. The defenses of necessity and justification are coming next.

  9. Disrespectful statements are not criminal because of the disrespect. For a sorry moment, in the Sedition act, that principle was not followed, and James Thomson Callender was convicted of disrespectful statements against John Adams. Jefferson, as president, pardoned Callender.

    Heresy is not a crime in the US.

  10. I have to echo what Gene said. Free speech isn’t pretty, but it can be powerful. You can say what you want, but so can the other guy.

  11. In a sane society, people would realize respect is earned, not due.

    For example, I respect the rights of others to practice the religion of their choice because it’s the right thing to do in allowing them to practice free exercise as a part of their right of self determination and that is reflected in the wisdom of the 1st Amendment and the concept of the Rule of Law earned my respect. That doesn’t mean I have to respect their religion. Maybe their religion hasn’t done anything to earn my respect. Just so, I also have the 1st Amendment right to speak my mind about the subject (which I recognize and respect for similar reasons both in myself and in others). If somebody takes offense at what I say about their religion, they are free to offer a rebuttal. They are not free to attack me without suffering legal repercussions and possibly an ass beating administered in self-defense. For just as I am – and they are – free to exercise their religion of choice and express their opinions and free to do so without sacrificing my rights to be free from violence and act in self-defense. The unspoken corollaries of the Right to Free Speech is the Right to be Offended and the Right of Rebuttal, not the right to beat those who offend you.

  12. Hedgehog

    To save you the trouble of reading my comments above, I’ll quote a relevant sentence.

    I wrote: “In a sane society, the incident could have been resolved by both parties realising that their actions were unacceptable.”

  13. “The word “respect” in the context of this discussion might be best defined as ‘absence of disrespect’ or perhaps better as ‘absence of insult’.”

    And how did the Muslim show respect to the Atheist? Why do you believe that the one deserves respect, but not the other? How did you make that judgment, and on what basis?

  14. “*If this was not the case Muslims would, in all probability, not be welcome or even safe here”
    Don’t limit it the Muslims?
    In Christian countries in the past Protestant has been unwelcome and unsafe from Catholic and v.v.
    Jews have been unsafe from both.
    Things seem to have settled down in most western countries that have varying constitutions (or none).

    Debates can get very unproductive once the dictionaries are opened. The same word can have a range different meanings. (examples above)

    I used the word “respect” in a comment above as I used it in a quote of someone else. I then continued to use it, but in a specific meaning.

    The word “respect” in the context of this discussion might be best defined as ‘absence of disrespect’ or perhaps better as ‘absence of insult’.
    In the context of this discussion, it certainly doesn’t have dictionary such as
    reverence – deference – venerate – revere.

    It’s not impossible that someone has a dictionary that defines ‘deference’ as ‘lack of insult’, but hey! 🙂

  15. I will restate my remark.

    We, [collectively as citizens of the United States] may not understand or even personally abide by or respect your beliefs but we recognize and have it instilled in our societal law by the *Constitution and (enforcement thereof), that we respect your right to have them and to speak of them.
    We are governed with separation between Church and State that allows us to exist within diversity and keeps us safe from the extremist impositions of Religion or a State that is changeable by process and is not Monarchial or police rule.

    *If this was not the case Muslims would, in all probability, not be welcome or even safe here. So I am hoping that we protect Mr. Elbayomy’s AND Mr. Percy’s rights. .


    Noun: A feeling of deep admiration for someone or something elicited by their abilities, qualities, or achievements.

    Verb: Admire (someone or something) deeply, as a result of their abilities, qualities, or achievements.

    Synonyms: noun. regard – esteem – reverence – deference – consideration

    verb. honour – honor – esteem – regard – venerate – revere

  16. Sling:

    “The judgement was the thin edge of “We respect other peoples beliefs”


    I’m glad Washington, Madison, Jefferson et als didn’t respect the beliefs of George III. Bottom line is that no one’s beliefs are entitled to respect absent some good reason for believing them. If I tell you I firmly believe your spouse is having an affair would you respect that if I told you it was based on some Sixth Century book’s nonsense? Well, it’s my belief isn’t it?

  17. I watched the video and my immediate reaction was that the ‘zombie’ was indeed a doofus. We’re not talking ‘ a bit silly’. We’re talking sub-juvenile offensive premium grade moronic.

    What was his point?
    Was this some noble speech is support of a social or political aim? – which would be the type of speech that I consider the Amendment was intended to cover – the sort of speech that would need protection to prevent a government from trying to suppress it.

    Someone wrote above: “We respect other peoples beliefs but don’t neessarily share the belief.”
    The zombie wasn’t part of that particular “we”. There was no respect in his actions or words. It was the polar opposite of respect.

    In a sane society, the incident could have been resolved by both parties realising that their actions were unacceptable.
    The cop to whom *both* of them took their complaints could have tried to sort it out on that basis.
    The judge should have been as hard on the objector as he was on the zombie. I don’t know if this happened. We may be just getting ‘edited highlights’.

    The judgement was not the thin edge of Sharia law.
    The judgement was the thin edge of “We respect other peoples beliefs”

    The incident did not seem to me to be worthy of a criminal record. Is a bone-headed technical application of law to human situations the reason for the huge prison population in the US?

  18. Tradetree, yes!, and I really like your expression in this line…

    “Common sense lets us understand that freedom of speech must rule above our politically correct confusion regarding other cultures.”

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