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Friday, February 24, 2012

Creeping Sharia or Simple Bias?

This is the story of a man who dressed up as a zombie Mohammad in a Halloween parade and was attacked by a Muslim man. For some reason, instead of being charged with simple assault and/or battery, the perp was charged with "harassment." Anyway, here is the story:
The Pennsylvania State Director of American Atheists, Inc., Mr. Ernest Perce V., was assaulted by a Muslim while participating in a Halloween parade. Along with a Zombie Pope, Ernest was costumed as Zombie Muhammad. The assault was caught on video, the Muslim man admitted to his crime and charges were filed in what should have been an open-and-shut case. That’s not what happened, though.
The defendant is an immigrant and claims he did not know his actions were illegal, or that it was legal in this country to represent Muhammad in any form. To add insult to injury, he also testified that his 9 year old son was present, and the man said he felt he needed to show his young son that he was willing to fight for his Prophet.
The case went to trial, and as circumstances would dictate, Judge Mark Martin is also a Muslim. What transpired next was surreal. The Judge not only ruled in favor of the defendant, but called Mr. Perce a name and told him that if he were in a Muslim country, he’d be put to death. Judge Martin’s comments included,
“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 dufus and Mr. (Defendant) is correct. In many 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. 
Judge Martin then offered a lesson in Islam, stating,
“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 can not because you are too ill too elderly, whatever but you must make the attempt. Their greetings wa-laikum as-Sal├óm (is answered by voice) may god be with you. Whenever, it’s very common when speaking to each other it’s very common for them to say uh this will happen it’s it they are so immersed in it. 
Judge Martin further complicates the issue by not only abrogating the First Amendment, but completely misunderstanding it when he said,
“Then what you have done is you have completely trashed their essence, their being. They find it very very very offensive. I’m a Muslim, I find it offensive. But you have that right, but you’re way outside your boundaries or first amendment rights. This is what, and I said I spent about 7 and a half years 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 are 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”
But wait, it gets worse. The Judge refused to allow the video into evidence, and then said,
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.”
And,
“The preponderance of, excuse me, the burden of proof… “
And,
“…he has not proven to me beyond a reasonable doubt that this defendant is guilty of harassment, therefore I am going to dismiss the charge”
Also link to video with the audio portion of the judge's ruling, and coverage by a local ABC affiliate. (H/t Jihad Watch).

It was obviously improper of the judge to lecture the victim about this case. The judge should have recused himself. The prosecutor/district attorney isn't going to risk the animosity of the judge by filing a complaint to an ethics panel. I would read this as not just a lecture to the victim, but also as warning to the prosecutor to not bring any more cases involving similar conduct.

Turning to the legal part of the decision. Under Pennsylvania Law, 18 Pa.C.S.A. § 2709:
A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person:
(1) strikes, shoves, kicks or otherwise subjects the other person to physical contact, or attempts or threatens to do the same;
(2) follows the other person in or about a public place or places;
(3) engages in a course of conduct or repeatedly commits acts which serve no legitimate purpose;
(4) communicates to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures;
(5) communicates repeatedly in an anonymous manner;
(6) communicates repeatedly at extremely inconvenient hours; or
(7) communicates repeatedly in a manner other than specified in paragraphs (4), (5) and (6).
The defense of ignorance of the law only applies to ignorance regarding a civil law that may have had some impact on the defendant's state of mind. Ignorance of the law of the offense (i.e., the criminal statute) is no excuse. The defendant claimed ignorance of the law of free speech. The judge seemed to accept that argument, but then went further and held that dressing as a zombie Mohammad didn't implicate free speech. Thus, per the judge's rulings, the defense of ignorance of the law was rendered moot because there was no free speech involved.

The judge's next action was to find that there was a question of fact that precluded finding that the the defendant was guilty beyond a reasonable doubt. (I'm unclear as to why the trial was not before a jury, but it is notable that the defendant was so confident of the judge that he elected to not have a jury trial). To protect this decision in the event of an appeal, the judge refused to admit as evidence a video of the defendant's actions. I can't say whether this was a legitimate decision or not.

However, from the story, it appears that the man admitted to attacking the victim, and that he further testified that he did so to show his son that he needed to fight for the "prophet." The latter testimony alone establishes the intent element. Based on the story, it appears that at least one of the other elements (physical contact) was also established. So, if the "reasonable doubt" standard was satisfied, there is only one other valid explanation for a Muslim judge letting a Muslim perp off for attacking someone that the judge felt was mocking Islam.

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