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From The Volokh Conspiracy:
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 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:
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.
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 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.Likewise, earlier in the audio recording, at around 28:30, the judge says,
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.
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.
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