The Volokh Conspiracy

The rebuke came from the Pennsylvania Judicial Conduct Board; the letter does not give more details, but I take it that the Board concluded that the judge’s actions in the Zombie Mohammed controversy were improper.

From a CNN interview (starting at 2:15):

Interviewer: When I spoke to him over the phone, Judge Martin acknowledged it’s his job to protect the rights of people like the atheist, no matter how offensive they might be.

Interviewer to Judge Martin: ... There are some who believe you were failing to protect that right.

Judge Martin: No, I don’t think so. Here’s the thing: It’s a right, it’s not a privilege, it’s a right. With rights come responsibilities. The more that people abuse our rights, the more likely that we’re going to lose them.

But I don’t quite see how this is “the thing,” at least in the sense of an explanation of the judge’s actions at the trial. I don’t think that we’re in danger of losing our free speech rights because some people say things that are offensive to Muslims. I do think that free speech rights are in danger when judges berate alleged crime victims for their anti-Islam speech, and thus convey the message that the legal system may be biased against those who engage in such speech and may fail to protect those people because of such speech.

A reader passed along this message that appears to be from the judge in the Zombie Mohammed case:

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.

UPDATE: Sorry, forgot to add this at first: I don’t think this justifies the judge’s berating of the victim, for the reasons I mentioned in the initial post; but I thought it important to let the judge provide his side of the story.

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.

The incident in which a judge dismissed charges against a Muslim who attacked a “Zombie Mohammed” parader — possibly because of the judge’s expressed anger at the parader’s expression — reminded me of this episode from 1990 (New York Times):

The Louisiana House passed a bill today that would lower to $25 the fine against those who assault people who burn the American flag. The House voted, 54 to 39, to waive the normal aggravated-battery penalties of six months in jail and a $500 fine in cases in which flag-desecrators are attacked.

I’m glad to say that the bill was never enacted; excusing attacks on those who insult ideological symbols is wrong whether the symbols are religious or political.

PennLive.com reports on this case, in which Talaag Elbayomy was accused of attacking a man who was marching in a Halloween parade (alongside a “zombie Pope”), and shouting “I am the prophet Mohammed, zombie from the dead” [UPDATE: and apparently carrying a sign that said "Muhammed of Islam" on one side and "only Muhammed can rape America"]. UPDATE: The video from the parade is here.

The judge concluded there wasn’t enough evidence to convict Elbayomy of the crime, and it’s possible that there was indeed inadequate evidence. A police officer reports that Elbayomy had admitted that he grabbed the parader and tried to grab his sign; but it’s possible that the judge found this evidence to not be credible enough to prove guilt beyond a reasonable doubt. Moreover, it appears that Elbayomy was prosecuted for criminal harassment, which requires an “intent to harass, annoy, or alarm,” and a mere physical attack with an attempt to grab a sign might or might not qualify, see the pen-grabbing discussion in this case. The acquittal itself might thus be justified, depending on exactly what evidence was introduced.

But the worrying thing is what the judge (Mark Martin) seems to have said at the trial, based on what appears to be a recording of the hearing: The judge — who stated that he (the judge) was himself a Muslim and [UPDATE: see below] found the speech to be offensive — spent a good deal of time berating the victim for what the judge saw as the victim’s offensive and blasphemous speech, which seems to raise a serious question about whether the judge’s acquittal of the defendant was actually partly caused by the judge’s disapproval of the victim. Consider, for instance, this statement, at 31:15:

Then what you have done is you have completely trashed [Muslim observers'] essence, their being. They find it very, very, very, offensive.

I’m a Muslim, I find it offensive. I find what’s on the other side of this [sign] very offensive. But you have that right, but you’re way outside your bounds of first amendment rights.

Likewise, earlier in the audio recording, at around 28:30, the judge says,

Having had the benefit of having spent over 2 and a half years in predominantly Muslim countries I think I know a little bit about the faith of Islam. In fact I have a copy of the Koran here and I challenge you sir to show me where it says in the Koran that Mohammad arose and walked among the dead. I think you misinterpreted things. Before you start mocking someone else’s religion you may want to find out a little bit more about it it makes you look like a doofus and Mr. [inaudible] is correct. In many other ... Arabic speaking countries ... something like this is definitely against the law there. In their society in fact it can be punishable by death and it frequently is in their society.

If anyone has more details on this incident, I’d love to hear them. American Atheists has a post about this at Opposing Views.

Note that, since the judge concluded that the prosecution didn’t introduce enough evidence against the defendant, the Double Jeopardy Clause bars a retrial, so I don’t think the state can appeal.

UPDATE: I had originally linked to a lower-quality set of excerpts from the hearing; I’ve revised the post to link to the better-quality and apparently complete recording of the hearing.

FURTHER UPDATE: Commenters have queried whether the judge is actually Muslim; I think that at 31:25 in this audio he does expressly say “I’m a Muslim, I find it very offensive,” and not in a context where a “not” seems to be lost or somehow implied; but some commenters disagree, partly based on other passages in the audio — if you’re interested, check out the discussion in the comment thread. Naturally, I think the judge’s condemnation of the victim is out of place (and casts doubt on the judge’s objectivity in his decision about the defendant) whether or not the judge is a Muslim. [NOTE: The judge, in the message below, says he is not a Muslim.]

A STILL FURTHER UPDATE: A reader passed along this message that appears to be from the judge in the Zombie Mohammed case, and that I’ve also posted as a separate post:

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.

I don’t think this justifies the judge’s berating of the victim, for the reasons I mentioned in the initial post; but I thought it important to let the judge provide his side of the story.