Andrew McCarthy, writing for National Review Online last Friday, described a shocking—and revolting—development in American jurisprudence.
Before I go into that, though, let me digress and provide a couple of quotes from the Pennsylvania Constitution. First is a state judge’s oath of office, from Article VI, Section 3:
I do solemnly swear (or affirm) that I will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that I will discharge the duties of my office with fidelity.
Next is the state constitution’s view of free speech, from Article I, Section 7 (I won’t go into the Federal Constitution’s 1st Amendment statement on free speech—a statement which a Pennsylvania state judge also is sworn to support, obey and defend):
The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.
Now to cases. It seems that Ernest Perce was the victim of a criminal assault.
Ernest Perce wore a “Zombie Mohammed” costume and pretended to walk among the dead (in the company of an associate who was the “Zombie Pope….” The assailant, Talag Elbayomy, a Muslim immigrant, physically attacked Perce, attempted to pull his sign off, and, according to police, admitted what he had done right after the incident.
State Judge Mark Martin
dressed the victim down for failing to appreciate how sensitive Muslims — including the judge himself [a converted Muslim] — are about Islam.
The (now twice over) victim recorded the audio of Martin’s shameful performance and has posted it on YouTube.
Here is an excerpt from Martin’s…ruling (there’s more at the NRO link above).
Before you start mocking someone else’s religion you may want to find out a little bit more about it. That makes you look like a doofus.
And Mr. Thomas [Elbayomi’s defense lawyer] is correct. In many other Muslim speaking countries – excuse me, in many Arabic speaking countries – call it “Muslim” – something like this is definitely against the law there. In their society, in fact, it could be punishable by death, and it frequently is, in their society.
Thus, what goes on in “other countries” must, of necessity, supersede domestic law governing behaviors done domestically. Even when what goes on in those countries is patently barbaric.
Courtesy of The Volokh Conspiracy, Martin explains himself:
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.
Like Professor Volokh suggests, this is unconvincing. There remains the fact of the assault, both unprovoked and unjustified. As to “the victim’s version, the defendant’s version, and a very intact Styrofoam sign,” there’s also the police’s hearing of the assailant’s confession and the possibility of an explanation of the sign’s condition, both of which he refused to hear when he tossed the case.
This judge has willfully and deliberately applied foreign law (and he as, as a separate matter, applied foreign religious law) to a domestic American criminal case, and he has done so by replacing applicable domestic law with that foreign law. This is a deliberate violation of his oath of office, and this should be an impeachable offense. We’ll see in the coming days whether the Pennsylvania legislature is up to the task of protecting American, and its own state, law. We’ll also see in the coming days whether the prosecutor involved is up to the task of appealing this willfully wrongful dismissal.