Legal Project Judge Mark Martin Request - Zombie Mohammed by Blazingcatfur

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									                                      September 10, 2012

Joseph A. Massa, Jr.
Chief Counsel
Judicial Conduct Board
Pennsylvania Judicial Center
601 Commonwealth Ave., Suite 3500
P.O. Box 62525
Harrisburg, PA 17120-0901

Dear Mr. Joseph A. Massa:

The Legal Project, an activity of the Middle East Forum, is assisting Mr. Ernest Perce V
concerning the judicial misconduct Judge Mark W. Martin, a Magisterial District Judge
of the Cumberland County Pennsylvania Magisterial Court system, ordered against Mr.
Perce in the matter of Commonwealth of Pennsylvania v. Talaag Elbayomy on December
6, 2011.

While Mr. Perce is aware that The Board has already issued a private rebuke of Judge
Martin, as Mr. Perce is the actual victim in this matter both by physical assault and the
deprivation of justice due to judicial bias, he requests that the Judicial Board of Conduct
re-examine Judge Martin's misconduct. In our estimation, the severity of Judge Martin’s
judicial misconduct calls for the Judicial Board of Conduct to file formal charges which
could ultimately remove Judge Martin.

The Board is Mr. Perce's last administrative resort against Judge Martin, whose term
extends into 2018. The Legal Project respectfully requests that The Board will consider
the full range of possible sanctions against Judge Martin, including sanctions, reprimand
or removal.

It is imperative that any future judicial misconduct of this sort be prevented from being
repeated in the Pennsylvania court system. Further, Judge Martin is clearly incapable of
adhering to his oath of office which demands that he “support, obey and defend the
Constitution of the United States and the Constitution of this Commonwealth and that I
will discharge the duties of my office with fidelity." The Board should therefore
responsibly send the appropriate message to the judicial body.
Attached please find Mr. Perce’s formal request for an investigation of Judge Martin
which includes a memo supporting the merits of the request along with press reports of
the incident.


    1500 Walnut St., Suite 1050 Philadelphia, PA 19102 Tel: 215-546-5406 Fax: 215-546-5409
                   Website: www.legal-project.org E-mail: info@meforum.org
                     The Legal Project is an activity of the Middle East Forum.
Mr. Perce has agreed that any future communication from your office should be directed
to our office.

                                      Respectfully submitted,


                                      ___________________
                                      Sam Nunberg
                                      Director




    1500 Walnut St., Suite 1050 Philadelphia, PA 19102 Tel: 215-546-5406 Fax: 215-546-5409
                   Website: www.legal-project.org E-mail: info@meforum.org
                     The Legal Project is an activity of the Middle East Forum.
                                        September 10, 2012

Joseph A. Massa, Jr.
Chief Counsel
Judicial Conduct Board
Pennsylvania Judicial Center
601 Commonwealth Ave., Suite 3500
P.O. Box 62525
Harrisburg, PA 17120-0901


________________________________________________________________________

       REQUEST FOR AN INVESTIGATION OF CUMBERLAND COUNTY
      MAGISTERIAL DISTRICT JUDGE MARK W. MARTIN’S JUDICIAL
    MISCONDUCT IN THE MATTER OF TALAAG ELBAYOMY V. STATE OF
     PENNSYLVANIA SUBMITTED ON BEHALF OF MR. ERNEST PERCE V

________________________________________________________________________

                               FACTUAL BACKGROUND

On October 11, 2011, the Borough of Mechanicsburg held a Halloween Parade. Ernest
Perce V, of the Parading Atheists of Central PA, appeared in the parade as “Zombie
Muhammad,” carrying a sign that read “Muhammad of Islam.” During the parade,
Talaag Elbayomy stepped from the crowd of spectators and attacked Mr. Perce. Mr.
Perce made a video recording of the attack, and promptly reported it to Mechanicsburg
Police Sergeant Brian Curtis, telling Sgt. Curtis that Mr. Elbayomy attempted to choke
him and take the sign. Sgt. Curtis, who later testified that Mr. Elbayomy admitted to the
attack, charged Mr. Elbayomy with harassment.

Sgt. Curtis, Mr. Perce and Mr. Elbayomy all testified at Mr. Elbayomy’s trial before
Mechanicsburg Magisterial District Judge Mark W. Martin on December 6, 2011.
During his testimony, Mr. Elbayomy explains “what upset me is that he (Mr. Perce)
revoked my prophet” and “whatever he was doing by law was not allowed.”1 Mr.
Elbayomy then explains his contact against Mr. Perce was justified because “I tried to
convince him that’s not Mohammed of Islam, nobody knows what he looks like. We
respect him so I do not want anybody to not respect him.” It is axiomatic that Mr.

1Recording of the hearing is available at
http://www.youtube.com/watch?v=Sv9IyrpOnbs&feature=related.
     1500 Walnut St., Suite 1050 Philadelphia, PA 19102 Tel: 215-546-5406 Fax: 215-546-5409
                    Website: www.legal-project.org E-mail: info@meforum.org
                      The Legal Project is an activity of the Middle East Forum.
Elbayomy used his religious views as the justification in his defense of the harassment
charge.

Mr. Perce also played his video recording of the incident.2 Judge Martin thereafter said
to Mr. Perce (referring to his actions at the parade): “That makes you look like a doofus.”
He then expounded at length as to Islam, including the following:

   “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.”
   “Islam is not just a religion, it’s their culture, their culture. It’s their very essence,
    their very being.”
   “[W]hat you have done is you’ve completely trashed their essence, their being. They
    find it very, very, very offensive.”

Further, Judge Martin also intimidated Mr. Perce during the preceding by waiving a
Koran at Mr. Perce from his bench and “challenging” Mr. Perce “to show me where it
says that Mohammed arose and walked among the dead.”

Judge Martin also shared his thoughts regarding the First Amendment:

   “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.”
   “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.”
   “[Y]ou’re way outside your bounds on First Amendment rights.”

Only after all of the above did Judge Martin consider the relevant statute, 18 Pa.C.S. §
2709, which provides in relevant part as follows:
A person commits the crime of harassment when, with intent to harass, annoy or alarm
another, the person . . . strikes, shoves, kicks or otherwise subjects the other person to
physical contact, or attempts or threatens to do the same.

Judge Martin then quoted Mr. Elbayoma’s attorney before effectively rendering his
verdict:


2The video is available at http://www.youtube.com/watch?feature=player_embedded&v=yP-
X3hpCfR8.
    1500 Walnut St., Suite 1050 Philadelphia, PA 19102 Tel: 215-546-5406 Fax: 215-546-5409
                     Website: www.legal-project.org E-mail: info@meforum.org
                       The Legal Project is an activity of the Middle East Forum.
“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.”3 However, the arresting officer
Police Sgt. Brian Curtis, the arresting officer in the case, has stated "I believe that I
brought a case that showed proof beyond reasonable doubt, and the case was dismissed,
and I was disappointed."4

Judge Martin later explained his actions in an interview with CBN News on March 4,
2012: “What I was trying to do in as quick of a time as I could, (is) educate the victim to
try to help him understand a little bit about Islam.”5



                                            VIOLATIONS

Rule 4.A of the Rules Governing Standards of Conduct of Magisterial District Judges
provides: “Magisterial district judges shall be faithful to the law and maintain
competence in it.”6

There are no references to either religion or the First Amendment in 18 Pa.C.S. § 2709.
There is no authority or any conceivable valid justification for Judge Martin’s
considering either religion or the First Amendment in applying the statute. His doing so
betrays an extreme lack of faithfulness to the law. His erroneous claims as to the
application of the First Amendment further betray a lack of competence in the law.

Rule 4.C of the Rules Governing Standards of Conduct of Magisterial District Judges
provides: “Magisterial district judges shall be patient, dignified and courteous to litigants,
witnesses, lawyers and others with whom they deal in their official capacity.” Likening
the victim of a crime to a “doofus” at the trial of his attacker is neither “dignified” nor
“courteous.” The Oxford English Dictionary defines “doofus” as “[a] foolish or stupid
person; an idiot.” Judge Martin’s claim that Mr. Perce’s exercise of his First Amendment


3
  All of the quotations in the text are taken from a transcript of the proceeding, which is based on Mr.
Perce’s audio recording of the proceeding. It is available at http://www.nationalreview.com/.
4
  CBN News, 3.4.12: 'Sharia Ruling' Judge Defends Decision for Muslim BY Erick Stakelbeck available
at http://www.cbn.com/cbnnews/us/2012/March/Pa-Sharia-Ruling-Judge-Defends-Decision/
5
  The interview is available at http://www.cbn.com/cbnnews/us/2012/March/Pa-Sharia-Ruling-Judge-
Defends-Decision/.
6
  Rules cited are cited from “Chapter 51: Standards of Conduct of Magisterial District Judges: Pennsylvania
Rules for Magisterial District Judges” available at
http://www.pacode.com/secure/data/207/chapter51/chap51toc.html.

     1500 Walnut St., Suite 1050 Philadelphia, PA 19102 Tel: 215-546-5406 Fax: 215-546-5409
                    Website: www.legal-project.org E-mail: info@meforum.org
                      The Legal Project is an activity of the Middle East Forum.
rights marks him as stupid, and his implication that a victim’s alleged lack of intelligence
justifies others’ criminal behavior are themselves beneath the dignity of the bench.

Rule 4.C of the Rules Governing Standards of Conduct of Magisterial District Judges
provides: “Magisterial district judges shall respect and comply with the law and shall
conduct themselves at all times in a manner that promotes public confidence in the
integrity and impartiality of the judiciary.” Judge Martin’s actions betray a failure to
“respect and comply with the law” for the reasons referenced above with regard to Rule
4.A. But his violation of Rule 4.C is more egregious yet in that his actions undermined
“public confidence in the integrity and impartiality of the judiciary.”

Judge Martin effectively dismissed a victim’s testimony, a police officer’s corroborating
testimony, and recorded evidence in rendering his verdict. Yet he spoke at length about
the defendant’s religion, which has no bearing as to the application of 18 Pa.C.S. § 2709
or any other criminal statute. No objective observer could draw any conclusion other
than that Judge Martin’s verdict was motivated, in whole or in part, by the defendant’s
religion. If he genuinely believed that Mr. Elbayomy did not commit a crime, then he
would have had no reason to defend him on the basis of his religion.

The implication of Judge Martin’s verdict is that any criminal defendant who claims that
his or her religion compelled them to commit a crime can expect to be acquitted in Judge
Martin’s courtroom. If that is not the case, then Judge Martin not only violated the Rules
Governing Standards of Conduct of Magisterial District Judges, but also discriminates on
the basis of religion. In either event, absent decisive action by this Board, litigants whose
adversaries are inclined to raise irrelevant issues regarding religion have no reason to
expect justice in Judge Martin’s courtroom.

Further, Rule 8.A (1) of the Rules Governing Standards of Conduct of Magisterial
District Judges instructs Magisterial district judges to disqualify themselves in a
proceeding where “they have a personal bias or prejudice concerning a party(.)” Judge
Mark Martin’s statements during this proceeding clearly show that he was either
incapable or unwilling to evaluate this case impartially. He unmistakably showed
deferential treatment to Mr. Elbayomy in this matter due to the defendant’s religion and
background. It is clear that Judge Martin allowed his own personal bias as an apologist
for a religious culture based on foreign laws to play a guiding role in his ruling.

Lastly, Rule 1 of the Rules Governing Standards of Conduct of Magisterial District
Judges states that an “independent and honorable judiciary is indispensable to justice”
and calls on Magisterial district judges to “participate in establishing, maintaining and
enforcing…high standards of conduct so that the integrity and independence of the
judiciary may be preserve.” Judge Martin’s statements, conduct and ruling in this matter
    1500 Walnut St., Suite 1050 Philadelphia, PA 19102 Tel: 215-546-5406 Fax: 215-546-5409
                   Website: www.legal-project.org E-mail: info@meforum.org
                     The Legal Project is an activity of the Middle East Forum.
clearly show that he is unable to maintain an independent judiciary with the integrity and
fidelity to impartial rulings that his position demands.




    1500 Walnut St., Suite 1050 Philadelphia, PA 19102 Tel: 215-546-5406 Fax: 215-546-5409
                   Website: www.legal-project.org E-mail: info@meforum.org
                     The Legal Project is an activity of the Middle East Forum.

								
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