The Sharia Court of Pennsylvania

By Andrew C. McCarthy

February 24, 2012 2:59 P.M.

A state judge in Pennsylvania has dismissed an assault and harrassment case against a Muslim defendant who admitted attacking the victim. Magistrate Judge Mark Martin, a veteran of the war in Iraq and a convert to Islam, ruled that Talag Elbayomy’s sharia defense — what he claimed was his obligation to strike out against any insult against the prophet Mohammed — trumped the First Amendment free speech rights of the victim.

Yes, you read that correctly.

 I have made a transcript of the Pennsylvania case in which state judge Mark Martin, a Muslim convert and U.S. Army reservist who served in Iraq, relied on a sharia law defense (as well as some evidentiary contortions) to dismiss an open-and-shut harassment case against a Muslim man who assaulted an atheist activist at a Halloween parade.

The victim, 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” — and who, you’ll be shocked to learn, was not assaulted). 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. The defense argued that Elbayomy believed it was a crime to insult the prophet Mohammed (it is, under sharia law), and that because he was in the company of his children, he had to act to end this provocation and set an example about defending Islam.

As you will see, Judge Martin did not lecture the defendant about free speech or how disputes are resolved in a civilized country. He instead dressed the victim down for failing to appreciate how sensitive Muslims — including the judge himself — are about Islam. The audio of Judge Martin’s remarks can be heard on YouTube (The audio, beginning at around the 2-minute mark on the YouTube clip, lasts about 7 minutes. Martin has reportedly threatened to hold Perce in contempt for recording and publishing the judge’s statements, which were made in open court. Perce says he had permission to make a recording as long as it was only audio, not video.) Here is the transcript:

    

 

Well, having had the benefit of having spent over two-and-a-half years in a predominantly Muslim country, I think I know a little bit about the faith of Islam. In fact, I have a copy of the Koran here, and I would challenge you, sir, to show me where it says in the Koran that Mohammed arose and walked among the dead.

[Unintelligible.] You misinterpreted things. 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.

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 really intended. I think our forefathers intended that we use the First Amendment so that we can speak our mind, not to piss off other people and other cultures, which is what you did.

I don’t think you’re aware, sir, there’s a big difference between how Americans practice Christianity – uh, I understand you’re an atheist. But, see, Islam is not just a religion, it’s their culture, their culture. It’s their very essence, their very being. They pray five times a day towards Mecca. To be a good Muslim, before you die, you have to make a pilgrimage to Mecca unless you are otherwise told you cannot because you are too ill, too elderly, whatever. But you must make the attempt.

Their greetings, “Salaam alaikum,” “Alaikum wa-salaam,” “May God be with you.” Whenever — it is very common — their language, when they’re speaking to each other, it’s very common for them to say, uh, “Allah willing, this will happen.” It is — they are so immersed in it.

Then what you have done is you've completely trashed their essence, their being.

They find it very, very, very offensive. I’m a Muslim, I find it offensive.

[Unintelligble] aside was very offensive.

But you have that right, but you’re way outside your bounds on First Amendment rights.

This is what — as I said, I spent half my years altogether living in other countries. When we go to other countries, it’s not uncommon for people to refer to us as “ugly Americans.” This is why we are referred to as “ugly Americans,” because we’re so concerned about our own rights we don’t care about other people’s rights. As long as we get our say, but we don’t care about the other people’s say.

All that aside I’ve got here basically — I don’t want to say, “He said, she said.” But I’ve got two sides of the story that are in conflict with each other. I understand — I’ve been at a Halloween parade, I understand how noisy it can be, how difficult it can be to get a [unintelligible]. I can’t believe that, if there was this kind of conflict going on in the middle of the street, that somebody didn’t step forward sooner to try and intervene — that the police officer on a bicycle didn’t stop and say, “Hey, let’s break this up.”

[Unintelligible]. You got a witness.

[Unintelligible response. Judge Martin then continues:]

The preponderance of, excuse me, the burden of proof is that the defendant — it must be proven that the defendant did with the intent to harass, annoy or alarm another person — The Commonwealth, whether there was conflict or not — and, yes, he should be took [sic] putting his hands on you. I don’t know — I have your story he did and his story that he did not.

But another part of the element [of the offense charged] is, as Mr. Thomas [the defense lawyer] said, was — “Was the defendant’s intent to harass, annoy or alarm — or was it his intent to try to have the offensive situation negated?”

If his intent was to harass, annoy or alarm, I think there would have been a little bit more of an altercation. Something more substantial as far as testimony going on that there was a conflict. Because there is not, it is not proven to me beyond a reasonable doubt that this defendant is guilty of harassment. Therefore I am going to dismiss the charge.

Me again: I could get into an evidence and criminal law analysis here — Judge Martin is being disingenuous about the “He said, she said” business: There was a videotape that corroborates the assault (it does not depict the assault but it shows there was a sudden disturbance), and a police officer would have testified that Elbayomy admitted attacking Perce — beside the fact that if there had been no assault, there would have been no need to defend it on sharia grounds. Moreover, Martin obviously missed class the day they taught the difference between intent and motive.

But all that is beside the point. This judge had no business entertaining a sharia defense to a violation of Pennsylvania law. The judge had no business ridiculing an American citizen as a “doofus” and hectoring him with Martin’s views about Islam, its requirements, its purportedly extraordinary significance to Muslims (compared to other believers who, according to Martin, are less devoted to their faiths), or about the Muslim perception of “ugly Americans.” The judge, furthermore, had no business sitting on a case in which he was biased against the complainant — so patently biased that the defense lawyer, R. Mark Thomas, saw that a sharia defense would fly and played it to the hilt.

Here’s what Mr. Thomas told the local ABC affiliate: “I think this was a good dressing down by the judge. The so-called victim was the antagonist. We introduced evidence that clearly showed his attitude toward Muslims. . . . The judge didn’t do anything that I wouldn’t have done if I had been in the same position.”

Yeah, I’m sure. But one’s “attitude toward Muslims” is irrelevant to one’s right in America to walk the streets and express opinions people may find offensive without being physically attacked and intimidated. And the fact that sharia governments kill people over such expressions of opinion means that they are barbaric, not that we should tolerate additional constraints on our (diminishing) liberties. Contrary to Judge Martin’s view — a view that is becoming increasingly and disturbingly common among top administration officials, some members of Congress, and the military brass — sharia does not set the “bounds on First Amendment rights.”

In 27 years of trying and analyzing legal cases, this performance is as shocking and disgraceful as anything I’ve ever seen from an American trial judge.