Judge's dismissal of harassment charge goes viral

February 28, 2012 - 6:56 PM

MECHANICSBURG, Pa. (AP) — A central Pennsylvania judge who came under fire for throwing out a harassment case against a Muslim man accused of accosting an atheist activist who dressed as a zombie version of the Prophet Mohammed in a Halloween parade said Tuesday he would not do anything differently.

Mechanicsburg District Judge Mark Martin said many of the hundreds of calls he has received in the week or so since the alleged victim posted an audiotape of the December trial online are acting on the mistaken assumption that he is Muslim.

The uproar led the court system on Tuesday to temporarily move Martin as a security precaution to the county courthouse in Carlisle, about 10 miles from his regular courthouse in the Harrisburg suburbs.

On the audio, Martin appears to tell the purported victim, Ernest Perce V, that he is a Muslim, and that Perce's actions were "very, very, very offensive" to the faith. Martin said Tuesday he was trying to make the point that people who are Muslim would be offended, an opinion based on the Army reservist lieutenant colonel's two tours of duty in Iraq and one in Afghanistan.

Most of the complaints he's fielded suggest he went easy on Talaag Elbayomy as a fellow Muslim, and argue he should have recused himself, Martin said.

"In actuality, I'm a Christian," Martin, a Lutheran, told The Associated Press. "Does that mean I should recuse myself in all cases that involve Christians?"

Martin said he dismissed the case for lack of evidence after Elbayomy testified that the confrontation was not physical, an apparent contradiction of what he told police the day of the parade. Court records spelled his first name Talaag, an online listing had Talaat and Perce's video called him Talaaq.

Before he ruled, Martin told Perce he had misrepresented tenets of Islam, which made him "look like a doofus."

"It's unfortunate that some people use the First Amendment to deliberately provoke others," Martin said on the audiotape. "I don't think that's what our forefathers really intended."

Perce, Pennsylvania director of the group American Atheists, said he's received more than 500 death threats in recent days. He marched in the parade along with a man dressed as a zombie pope.

"When it came to the judge telling me I was way outside the bounds of freedom of speech, my immediate thought at this point was, 'Whose side are you on? You're a soldier. Whose side are you fighting for?'" Perce said Monday.

Martin said the First Amendment permitted Perce to act as he did.

"What I was trying to convey to him was, just because you can say or do something, doesn't always mean you should," Martin said.

Perce said his status as an atheist seemed to play a part in the case.

"I can't believe that in America a person gets attacked, and then they get called a doofus, ridiculed on the stand, like I'm a piece of garbage because of my lack of belief," Perce said.

Elbayomy's lawyer, R. Mark Thomas, said there was no physical or circumstantial evidence to support Perce's claim that Elboymay tried to pull off his fake beard and a sign he wore around his neck.

Both men contacted police immediately — in Elboymay's case because he did not realize that it is not a crime to ridicule his religion's chief prophet.

"The judge dressed (Perce) down, (and) as far as I was concerned, that was the right thing to do," Thomas said. "This guy was obviously the antagonist."

Sam Stretton, a West Chester lawyer who has defended judges accused of misconduct, and who writes and speaks regularly on judicial ethics, said he advises judges to avoid discussions outside the matters in front of them.

"I always tell judges, look, decide cases, but you're under no obligation to explain in detail what's going on," he said.

Martin's discussion of religion might not be bad advice in another context, Stretton said.

"The problem is when you're saying it with a judicial robe on," he said. "But it's not the worst thing to say."