The American Muslim (TAM)

The Case of the “Muslim” Judge in Pennsylvania Revisited

Sheila Musaji
Posted Jun 19, 2012 •Permalink • Printer-Friendly Version

The Case of the “Muslim” Judge in Pennsylvania Revisited

by Sheila Musaji

Ilisha of Loonwatch sums up the background of this false story about a Pennsylvania “Muslim” judge to come from the Islamophobia network:

This time, Pennsylvania State Director of American Atheists, Ernest Perce V, was parading down the street as “Zombie Muhammad,” when an outraged Muslim bystander allegedly grabbed him, choked him from behind, and attempted to remove a “Muhammad of Islam” sign from around his neck. Both men complained to police, Perce for assault and Elbayomy because he apparently thought insulting Islam was a criminal offense.

Perce filed charges, but a judge dismissed the case after he allegedly said, “I’m a Muslim,” and chastised the atheist in question for his misinterpretation and lack of understanding concerning Islam. Judge Martin is not a Muslim, and later said himself he is Lutheran.

Parts of the court video are garbled, and it seems he either misspoke or part of his statement was inaudible. In any case, his statements and decision to dismiss the case have sparked a fresh controversy over the limits of free speech.

Andrew McCarthy of National Review appears to be the source of this story, and in his initial short posting he provides a link to learn more about the details which takes the reader to an article by American Atheists. Not exactly a neutral source, since it is their Director who is the defendant in this case. After posting two incorrect articles, McCarthy finally posted a third article in which he said

The audio sounds clear enough on YouTube streamed through your computer. But I’ve now listened to the sentence in question many times, wearing a good set of earphones with the volume amplified a bit. Based on that, it’s entirely possible that what Martin said was, “F’Im a Muslim, I’d find it offensive” — as in If I were a Muslim, I would find it offensive. The “F” sound before the word “I’m” is almost inaudible, even with good equipment; the “d” sound that changes “I” to “I’d” is more perceptible, but you have to work a bit to hear it.

I want to thank our reader gargal who raised the possibility of an erroneous transcription in the comments section of the transcript post. After many listenings, I don’t agree with gargal’s transcription, “I’m not a Muslim, I find it offensive.” There is no utterance of the word “not”. What did it for me was the “d” at the end of “I’d”. But gargal is right that, in context, it makes more sense that Judge Martin is talking about how he would feel about the “Zombie Mohammed” bit if he were a Muslim — not how he does feel, as a Muslim. For example, at the start of his soliloquy, Martin says, “I think I know a little bit about the faith of Islam,” and he attributes this not to being a Muslim but to “having had the benefit of having spent over two-and-a-half years in a predominantly Muslim country.” (Judge Martin is an army reserves officer who has done tours in Iraq.) I’d further note that the judge tends to garble some words and to interrupt thoughts with other thoughts, which are interrupted by still others, so he is not always the easiest guy to follow.

I’ll give McCarthy credit, he did go back and edit previous posts to note the change in information. Andrew Bostom also admitted that he was incorrect in his description of the Judge as a self-professed Muslim.

Here is Pamela Geller’s post American Judge Who Imposed Sharia in Pennsylvania Court Threatens to Jail Infidel Victim for Blasphemy—releasing recorded audio of the caserl from her Atlas Shrugs site in which she claims “Judge Mark Martin is also a Muslim.” Originally her title was more inflammatory, but at some point after Loonwatch pointed out on Feb. 26, 2012 that clearly the Judge was not Muslim, she changed the title. You can still see the original title in the url for the article ( http://atlasshrugs2000.typepad.com/atlas_shrugs/2012/02/american-muslim-judge-who-imposed-sharia-in-pennslyvania-court-threatens-to-jail-infidel-victim-for-.html ). So, Geller has removed the description of Judge Martin as an “American Muslim Judge”, and now just refers to him in the title as an “American Judge.

Geller also posted an interview with Ernest Perce on The American Thinker.

Here is “Marisol’s” post from Robert Spencer’s Jihad Watch Sharia in Pennsylvania: Muslim admits to attacking atheist over “Zombie Muhammad”; Muslim judge dismisses case, tells atheist he’d be killed in Muslim lands.

Spencer himself posted an article on Front Page on March 6th, which still included a “quote” translating the tape as saying “I am a Muslim”, although McCarthy had clarified that on February 24th.

There are two issues raised by the Islamophobes - the first, is that this involves some sort of imposition of Sharia, and the second is that the Judge is a Muslim.

Even Eugene Volokh of the Volokh Conspiracy didn’t find any merit in the Sharia claim

As I note below, I highly disapprove of the judge’s comments in the “zombie Mohammed” affair. But the suggestion that anti-Sharia laws would help avoid this (see also here) doesn’t make much sense to me.

This is not a situation where the judge “applied Sharia law” in any normal sense of the phrase. The judge claimed that he simply didn’t find enough evidence against the defendant. Perhaps the judge was biased against the victim because of the victim’s anti-Muslim speech, but an anti-Sharia law wouldn’t have helped avoid that. More broadly, a law banning judges from “consider[ing] … Sharia Law” (in the words of the Oklahoma anti-Sharia amendment) wouldn’t keep judges from concluding that someone who insults members of other religious groups should be admonished, punished, or even stripped of the right to legal protection — they would just conclude this based on their own notions of refraining from offending other groups.

Even a judge who wants to give a break to a defendant who attacks an alleged blasphemer, on the grounds that the defendant comes from a culture where such blasphemy is illegal, could do that without “consider[ing] … Sharia Law.” He could just consider the actual practices of the foreign country, just as an immigration judge who gives asylum to a convert from Islam who faces a possible death sentence for apostasy back home could make an observation about actual practices in the foreign country without “consider[ing] … Sharia Law.”

The same is true with regard to the rightly infamous New Jersey trial court decision accepting a cultural defense with regard to nonconsensual sex in a domestic restraining order case. (I might be mistaken, but I think this blog was the blog that first reported on that case.) The court there did consider the Muslim defendant’s religious beliefs, but no more so than a court would consider a claimant’s religious beliefs when he seeks a Title VII-based religious exemption from an employer’s no-headgear policy. The problem in the New Jersey case wasn’t that the court considered the defendant’s Islamic religious beliefs, but what it did with its conclusion regarding those beliefs.

As posts such as the one about the zombie Mohammed, about the New Jersey case, and about a wide range of other controversies show, I certainly don’t approve of people’s religious beliefs — including Islamic religious beliefs — being used as a justification for violating others’ rights. But anti-Sharia laws don’t solve those problems, and instead risk creating unnecessary problems of their own.

As to the second claim based on someones faulty interpretation of an audio transcript released by the defendant - here is what the Judge himself has to say in a statement released on the Volokh Conspiracy site

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.

Joseph French sums all of this up beautifully in an article titled Pennsylvania Judge Mark Martin Ruling Drives Hysteria in Blogosphere

There is no group in America better at grasping for straws than the vast conservative blogosphere. Pennsylvania Judge Mark Martin has recently delivered them enough straw to create a veritable army of sharia creeping straw men. As the right-wing press burns them to the ground here is a look at what actually happened.
The brouhaha seems to have been set off by a very brief and very minor altercation between Central Pennsylvania Marching Atheist, Ernest Perce, and a rather misinformed Muslim immigrant, at the Mechanicsburg, Pa., Halloween parade. Local police, as reported in the Harrisburg Patriot, initially investigated the incident and filed a harassment charge against Talaag Elbayany of Mechanicsburg. The charge was recently dismissed, according to the Harrisburg Patriot, by Judge Martin for lack of evidence. The judge’s concluding remarks to the 35-minute trial, have now been seized upon by elements of the press as proof that Islamic Sharia Law is taking root in our legal system. Some have gone so far as to proclaim the judges actions have created a precedent for Muslims to attack Americans with impunity.
After a careful review of both a video of the attack and an audio recording of the trial provided by Perce, via You Tube, it is safe to say the entire affair is much ado about nothing. That is, unless you have an anti-Muslim axe to grind and find the mere fact that an American jurist might identify himself as Muslim troubling.
As seen in the “attack” video (starting at 48 seconds) Elbayany, in the white hoodie, confronts Perce and tells him to take off the sign identifying himself as “Zombie Mohammed”. The screen blacks out for five or six seconds while Perce screams “He’s choking me.” The next clear image in Perce’s video is Elbayany walking away with his cell phone out, telling Perce he is calling the police. Perce is then seen to continue to participate in the parade proclaiming, loudly, to be the “Zombie Mohammed.” Perce’s video does not however show any evidence of an assault or who initiated the brief contact between him and Elbayany.
You will hear in Perce’s recording of the trial, offered by some as proof of sinister Muslims infiltrating of our legal system, the source of the blogosphere’s conniptions. Clearly, listening to Perce’s recording, you hear that the Pennsylvania Judge does, in fact, identify himself as a Muslim. Clearly, heard in the audio transcript, Judge Martin disputes Perce’s interpretation of the Koran. Clearly, you will hear the judge tell Perce he felt a “Zombie Mohammed” costume is disrespectful of Islam and an abuse of his First Amendment rights. Just as clearly, you will not hear anywhere in Perce’s audio transcript, Judge Martin citing Sharia or the First Amendment as a reason for the dismissal. What you will hear Martin say is “he (the prosecutor) has not proven to me beyond a reasonable doubt that this defendant is guilty of harassment, therefore I am going to dismiss the charge.”
At most, one can question the appropriateness of Judge Martin’s chastisement of Perce from the bench. It is certainly questionable conduct for a judge to call a complainant a “doofus” for misinterpreting, in the Judge’s opinion, the Koran. However, none of the Judge’s actions can be construed as undermining any of the basic principles of our legal system. Nor has he given anyone carte blanche to attack another over religious principles.

And, a local newspaper in Pennsylvania published this editorial about Judge Martin

We weren’t there that now-notorious day back in December, and we won’t presume to understand the motivations of the parties involved in the case known in the blogosphere as the “Muslim judge” who attempted to impose Sharia law in an America court.

We can be certain of a few things, however – that Magisterial District Judge Mark Martin of Mechanicsburg is a man who takes his job seriously, that he is a man who isn’t afraid of controversy and that he is a man who has demonstrated genuine patriotism in the past. A lieutenant colonel in the Army Reserves, Martin has served three tours of duty in Iraq.

And he is not, as many in the ultra-right-wing media have eagerly portrayed him in recent weeks, a zealot attempting to overthrow the U.S. Constitution.

Nor is he a convert to Islam, as many also are claiming. But you wouldn’t know it if you googled “Mark Martin” and “Muslim,” thanks to that misdemeanor case he handled last year.

During the Mechanicsburg Halloween parade Oct. 11, a declared atheist dressed up as “zombie Mohammed,” and a man who is a Muslim took offense. There was a confrontation. The atheist claimed the Muslim tried to wrest a sign from his neck (which said “Prophet Muhammad of Islam,” in case anyone didn’t get it), choke him and pull off his fake beard. Both men went to police, who did not witness the incident, and the Muslim man was charged with harassment.

In December, Martin dismissed the charge. “I made the ruling because there was not enough evidence,” Martin told The Sentinel last week. “I heard testimony from the two parties, and the police officer. The police officer testified that they both came up to him after the incident. I had two contradictory statements and an intact piece of Styrofoam.”

But before he made his ruling, Martin delivered a lecture from the bench, chastising the man who claimed he had been assaulted for lack of tolerance. The judge also called him a “doofus” for his misinterpretations of Islam.

Some time later, that man posted on YouTube an admittedly altered voice recording of the hearing – without saying what was altered — in which Martin seems to say he had converted to Islam. That went viral rapidly.

And last week, Martin’s courtroom had to be moved to the Courthouse in Carlisle for security reasons.

Whether Martin’s lecture was appropriate is open to debate, though judges often do this sort of thing to varying degrees. And whether Martin’s ruling was correct can be challenged – that’s why we have appeals courts..

Meanwhile, the story as it spreads continues to be embellished, altered and distorted by those who clearly put their agendas ahead of any sort of fact-checking (Martin is a Lutheran, by the way). And in the rush to whip up controversy, no one has given a thought to the effects on the man, his family or the community he serves.

Truth is the ultimate victim in this case and that means everyone loses. The first version of events to be reported is usually the most remembered, and lest anyone forget, what gets posted online lives forever.

While some blame attaches to the person who put the match to the powder keg, the full shame belongs to the bloggers and national media who seized on one side of a juicy story and then fanned the flames.

As of this writing, although it is obvious that Pamela Geller is aware that calling the Judge a Muslim was untrue (otherwise why would she change the title of her article), and certainly enough time has passed for Geller, Spencer, Marisol, et al to have done a little research, they have not posted any updates to their previous articles nothing that their claims are not true.

This habit of simply changing published articles without any comment, or “disappearing” entire articles is a pattern with the Islamophobes. Here is just one very recent example

Last week, Pamela Geller posted an article with the strange title “Norway Muslims Bred Jewish Boy With a Red Hot Coin”. Here is the link http://atlasshrugs2000.typepad.com/atlas_shrugs/2012/06/norway-muslims-bred-jewish-boy-with-a-red-hot-coin-long-term-anti-jewish-bullying.html From the context of the article Geller meant to type Muslims “Brand” Jewish Boy, not Muslims “Bred” Jewish Boy. But, that was just one of the many problems with the article that I saw on a quick skim.

I had put the article in my “response needed” folder, and went back today to look at it and write about the distortions in the article.

However, the article at that link is now titled “Jewish boy branded with a red hot coin in Norway”. Not only has the title changed, but the article itself has changed. What has not changed is the link, and that shows the original title clearly. Now, however it simply refers to the same article at The Times of Israel, and most of Geller’s comments are gone.

I find it interesting that rather than even consider the testimony of Judge Martin (a three tour Iraq veteran) himself, they are inclined to believe that Mr. Perce’s testimony is more reliable. Here is a little about Perce in another article from the same local Sentinel

At least one person who knows Perce well suggested that he knew what he was doing was offensive.

“He likes to get a rise out of people. It’s caused a civil war within the group the Pennsylvania Non-Believers,” said Jim King, a former group member.

Although Perce was dressed as a zombie Muhammad, “Islam isn’t the only religion that he’ll be confrontational toward,” King said, adding that Perce likes to protest on the Capitol steps wearing a shirt depicting a Jesus figuring having sexual intercourse with another Jesus figure.

“His big schtick is the obscenities. At one of the first meetings, he came in through Isaac’s Deli, passed customers wearing (unprintable) shirt. One of employees was outraged, almost screaming, and insisted that he take the shirt off. He eventually did. He pulled the same stunt down at York meeting,” King said. People have left the group in protest, he added.

Currently, when Silverman and Perce demonstrate using offensive language or pictures, they are forbidden by the group to identify themselves as being with the Pennsylvania Non-Believers, which is why in the Mechanicsburg parade, they identified themselves as the Parading Atheists of Central PA. King explained.