Category Archives: Volokh Conspiracy

Penn. ‘Zombie Mohamed’ Judge Mark W. Martin Didn’t Graduate Law School: Rumors Abound ‘Homeland’ Character Brody Based On Turned Iraq Vet Turned Sharia Judge-Photos And Transcript

Pennsylvania Magisterial District Judge Mark Martin provoked outrage when he

'Homeland' real-life character, Penn. Sharia Judge Mark Martin, served several tours of duty in the Middle East. The Sharia Judge carries the Koran to court and may be a technical advisor to Homeland.

summarily dismissed charges against a Muslim immigrant who allegedly attacked an atheist activist parading in a Zombie Mohamed costume.  For some reason, Zombie Mohamed’s pal, Pope Zombie, was not attacked.

But the most disturbing attack in the case was inflicted on the First Amendment by “Judge” Mark W. Martin, who launched into a six-minute tirade against the alleged victim for having the temerity to exercise his right to free speech and expression.  Now it turns out, the “judge” isn’t even a lawyer and didn’t graduate law school.  Apparently a four-week course suffices in Pennsylvania to become a magisterial district judge.

I called Judge Mark W. Martin at the telephone number provided here planning a serious First Amendment exercise workout myself, only to learn in a recorded message Monday morning that the court room had to be relocated to a more secure location on account of alleged threats the so-called judge had received.  (By the way, calling up judges with serious free speech urges on your mind and blogging about it is best done outside the boundaries of the United States – or at least the State in which the judge sits on the bench.)

The tirade is worth reading in its entirety, and I’ve included it below and interspersed highly relevant photos from Homeland and commentary – bracketed in bold.  (I’ve used the definitive transcript of the “Judge’s” remarks,  prepared by the National Review’s Andrew McCarthy, based on audio recorded in court by the alleged victim,  Ernest Perce, and posted on YouTube).

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.

Your Honor, the evidence is right here.

[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.  [Enough with the legalese]

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. [Objection, relevance.  We're not in "their" #$&%*ing 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. [Any cases to cite in support of what you "think"?  Didn't think so]. 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.

Dressed for Legal Success: 'Homeland's' Claire Danes heeds Sharia Judge's Admonition Not to "piss off other people and other cultures."

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. [Correct Judge, that's the problem] 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. F’Im a Muslim, I’d find it offensive. [Unintelligble] aside was very offensive.

But you have that right, but you’re way outside your bounds on First Amendment rights. [And you're way out of your league on First Amendment scholarship, Judge Doofus.  Try reading The Volokh Conspiracy blog.]

This is what — as I said, I spent half my years altogether living in other countries [Just like that blonde Muslim convert in Homeland who rented the pad by the airport with her Saudi boyfriend]. 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. [No judge.  It's because many of us are grossly obese, wear shorts and sneakers to the Louvre, and talk boisterously in fine dining restaurants. On the positive side, we're considered the word's best tippers.]

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.  [Had you gone to law school you would have learned that judges often hear cases with conflicting stories.]  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.”

Before the end of Season 1, the evidence showed Sgt. Nick Brody from 'Homeland' had turned. The evidence suggests the same about Sharia Judge Mark Martin, the real-life character upon which Brody is based. How else could you be a Judge without going to law school?

[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?” [Huh, "have the offensive situation negated"?  Sounds like the Vet's military euphemisms are showing]

If his intent was to harass, annoy or alarm, I think there would have been a little bit more of an altercation. [No, "more of an altercation" would likely have been an assault; harassment is a less serious charge.  This is why judges should go to law school.]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.

Judicial incompetence and bias won’t be eliminated by the host of anti-”Sharia law” proposals bandied about by incompetent law makers with their own agendas.  We don’t have Sharia Law.  We do have lots of incompetent and routinely biased judges running loose of all stripes who wreak legal havoc with less fanfare than Mark W. Martin.  We just need judges who will apply our Anglo-American jursprudence as originalists.   Requiring they graduate from law school might be a start.

Supreme Court Strikes Down Ban of Animal Cruelty Images: 8-1 Decision Upholds First Amendment – UPDATED for Colorado

The Supreme Court today in an 8-1 decision, struck down a law in which a man was criminally prosecuted for producing videos showing pit bulls fighting, allegedly in violations of a ban on depictions of animal cruelty.  The decision is a major First Amendment victory, as it may hold implications for overly broad content-based speech harassment laws, hate speech laws, and anti-bullying laws.  Leading First Amendment scholar, Eugene Volokh, has called content-based speech harassment laws the greatest free speech threat facing the U.S.

Chief Justice Roberts wrote for the majority in U.S. v. Stevens, with Justice Alito the sole dissenter.  The dissent in my view, mistakenly focused on the underlying animal cruelty depicted in some videos.  Such underlying behavior is illegal.  “Crush” type videos might also still be illegal, but the video at issue was not in that category, and efforts to stop illegal conduct must be narrowly applied so as not to tread on protected speech.

Eugene Volokh, aptly focuses on Chief Justice Robert’s demolition of the prosecutorial discretion arguments and the Holder Justice Department:

Not to worry, the Government says: The Executive Branch construes §48 to reach only “extreme” cruelty, and it “neither has brought nor will bring a prosecution for anything less,” The Government hits this theme hard, invoking its prosecutorial discretion several times. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.

This prosecution is itself evidence of the danger in putting faith in government representations of prosecutorial restraint. When this legislation was enacted, the Executive Branch announced that it would interpret §48 as covering only depictions “of wanton cruelty to animals designed to appeal to a prurient interest in sex.” No one suggests that the videos in this case [which involve dogfights and dogs attacking other animals] fit that description. The Government’s assurance that it will apply §48 far more restrictively than its language provides is pertinent only as an implicit acknowledgment of the potential constitutional problems with a more natural reading.

(All quotes by Chief Justice Roberts, emphasis added by Ex-Pat Ex-Lawyer).

It is critical that the public stays informed about the Constitution and the First Amendment and realizes, as the Chief Justice points out so well, it’s not about whether you like or agree with the underlying speech, and we can’t trust prosecutors or police to decide which cases they want to prosecute and which they don’t.  We wouldn’t need a First Amendment to protect speech everyone likes or agrees with.  If we wanted that, we could just become like  Canada, where conservative columnist Mark Steyn has spent $1.5 million fighting hate speech charges for criticizing Islam.

Updated  For Colorado: This law was so overbroad, it could have been used to send those

Co-Blogger Steffi Q., head of the Colorado Freedom to Bark Foundation, comments: "I support the right of humans to photograph me with a dead pheasant in my mouth."

who photograph or video hunting scenes to prison. When President Clinton signed the law in 1999, he recognized it was constitutionally overbroad but signed it anyways. The founding fathers recognized that all branches of government, not just the judicial branch, have a responsibility to  pass and enforce only laws that are constitutional.

That doesn’t mean they will attain perfection in attempting to do so,  and SCOTUS is the ultimate arbiter – but they need to try very hard.  Clinton issued a “presidential signing statement” on how he wanted the order to be enforced.  But it wasn’t binding on his own US Attorneys or future US Attorneys.  He simply should have vetoed the law, but of course liberal “animal rights” Dem constituents wouldn’t have liked that.

This same problem exists in spades in Colorado, where a lot of unconstitutional laws sit on the books and are applied, or not, depending on law enforcement, depending on the DA, depending on local judges, depending on whether the defendant is popular or has money.  The law in the Stevens case was applied against people for 10 years, and undoubtedly exerted a chilling effect on free speech rights during that period.

And of course, who can forget the “Dirty Dozen” tax increases that clearly violated the Colorado Constitution’s TABOR provision,  and where all three branches of government ignored the law.

Speech harassment laws that are unconstitutional unless very narrowly applied sit on the books now in Colorado, as observed in this Glenwood Springs incident I reported on in March.  Hopefully we’ll have a big legislative and gubernatorial shakeup in Colorado in November, and I pledge to ask every candidate whether they will make ridding the books of unconstitutional statutes (as well as merely stupid and/or outdated laws) a priority, and whether they unequivocally support Clear the Bench and will vote no-retain on the four justices targeted this November.

Links of the Day: Ritter and Hurlbert on MMJ; Hasan Wants Bankers Jailed; Volokh on Reason TV; Stossel

Today’s posts are late as I had to go get blood pressure checked after the false alarm this morning about Chief Justice Roberts’ impending Supreme Court resignation and the harrowing possibility that the likes of  Deval Patrick or Eric Holder might be on SCOTUS.  Also, consulted with a class action specialist about suing Radar Online for negligent infliction of emotional distress.  We’ll probably hear soon from B-HO about spikes in health care costs among Republicans.

Bill Ritter to take Medical Marijuana? – The Colorado governor suffered 5-6 broken ribs in a bicycle crash. Ouch! Lynn Bartels at The Spot speculates against it, noting his DA background and “law and order” reputation.  Too bad these “law and order” type former DAs don’t want to enforce laws like TABOR.  Click on the article to see which state Senator teased Ritter about this.  Hint, he is no supporter of  DA Mark Hurlbert “Hurlritter.”  No spoiler alert necessary because that could be one of at least eight Republicans who support opponent Tim Leonard.  Ok, one hint.  Like Ritter, he’s an avid cyclist, according to LB.

My take is that any of CO’s  three political Rittercritters should be able to intake what he feels is best for his pain and suffering–be he Bill, Hick, or Hurl.  My Rx, though, would be not to smoke anything, as breathing with injured ribs is difficult enough.  My doc would likely recommend Percocet combined with ibuprofen, which is likely what Bill was prescribed.  He should then take lots of time off to rest–broken ribs are slow to heal.  His Dem colleagues in the legislature should do the same in a show of support.

DA Mark Hurlbert, a Republican Candidate for the Colo. State Senate, and one of the aforementioned Colo. triumvirate of “Rittercritters,” apparently believes MMJ should be reserved for the “truly sick” among us.  Under current voter-prescribed law, physicians determine who qualifies as “truly sick” enough for them to prescribe MMJ . Hurlbert then states that the “Frankenstein” beast that is Obama care must go (no argument there).

The Frankenstein line struck me as something GOP boss Dick Wadhams might come up with, but Hurlbert didn’t limit his attack on government interference with the doctor-patient relationship to the feds.  To his credit, Hurlbert went on to argue Colorado shouldn’t “get involved with healthcare and other nanny-state things .”

I’m confused, though.  If government shouldn’t interfere and you’re opposed to the nanny state, then the MMJ decision should be between  the doctor and patient, and they should determine if the patient is “truly sick” enough for MMJ, right?   More later.  (Corrected and updated 3-5-10 at 6:34 a.m.)

Ali Hasan, GOP candidate for Colo. Treasurer, calls bankers crooks who should be jailed - more on this from The Donald L. Johnson at businessword.com.  The lines between Hasan, Stapleton, and Ament in this three-way primary race are getting clearer, as Hasan has clearly staked out the populist position in the campaign.

Reason TV interviews First Amendment Guru Eugene Volokh-and Eugene discusses at length on video various constitutional rights, including the First.  His view of the greatest free speech threat?  Content-based speech harassment laws.

John Stossel on Keep your Laws off my Body-Just when I thought I was done for the night, Reason released this classic, which has been teased all week on Fox.  The piece starts with a maxim that has now become a part of the distant past for us baby boomers:  “It’s a free country, right”?  Wrong.  Hopefully this will change by getting conservative/libertarian Republicans elected this November.

Links of the Day-New Blog Feature

Following the example of such pre-eminent conservative/libertarian bloggers as Glenn Reynolds at Instapundit and Radley Balk0, I will finally get with the times and post short links to pieces of interest I find on political and legal issues in Colorado and the nation.

The Nation

Oral argument held today in the McDonald Gun Case-they have the full roundup over at Volokh, including links to Scotusblog, and the transcript from the oral argument.  Colorado’s Koppel just blogged at the VC here. Just go on the site and scroll.

Texas Appellate Court forces a trial even though defendant pleads guilty  to everything. This is one I think  even Mark Hurlbert and I would agree is loony.  From Simple Justice.

Colorado

Treasurer Trivia – and not so trivial coverage on the three-way race for the Republican nomination for State Treasurer. From Lynn Bartles at The Spot.  She also links to the businessword.com blog extraordinaire of  The Donald Johnson,  who covers questions and answers from Ament, Hasan, and Stapleton.

Legislative nanny state trivia - on new laws for bike helmets is wittily commented on by the prolific Ben Degrow.

Ben also has a great piece analyzing what in my view is the single most important barrier to long-term economic sustainability of Colorado and the US–government employee unions.

Money and Speech: Eugene Volokh

At he does masterfully and consistently, UCLA law professor Eugene Volokh points out that while  money doesn’t equal speech, restrictions on it certainly curtail it as do money restrictions on other constitutional rights:

“People continue to characterize the Court’s campaign finance decisions as resting on the theory thatmoney is speech. And of course money isn’t speech.

But, as I wrote a few years ago, money isn’t abortion, either. Nonetheless, a law that banned the spending of money on abortion would surely be a serious restriction on abortion rights (whether or not you think that the Court was right to recognize such rights). A law that capped the spending of money for abortions at a small amount, far smaller than abortions often cost, would likewise be a burden on abortion rights, and dismissing this argument as “it is quite wrong to equate money and abortion” would be unsound.”

An Interview with the Boy Genius: First Amendment Stud Eugene Volokh

Bitter Lawyer has a fascinating interview with Volokh Conspiracy founder Eugene Volokh. I have visited Eugene’s blog since it’s early years. It was one of the first and is still the best. Then, recently, I saw a photo of Eugene and wondered how anyone this young could have had his years of prolific legal scholarship and practice experience. So I read up on him and discovered his family emigrated from the then-Soviet Union when he was only 10, and that he entered UCLA at the tender age of 12, and graduated at 16.  UCLAl not being apparently  challenging enough for this cute boy genius, he also worked as a computer programmer for the likes of HP. The interview is great, and has a lot of useful stuff for you law students out there.