A 31-year-old sent to prison for using his computer to entice a 15-year-old girl who turned out to be a police investigator says the state entrapped him.
The Nebraska Supreme Court this week heard oral arguments in James Pischel’s case, leading to a lesson on emoticons.
His attorney, Matt Graff of the Lancaster County Public Defender’s Office, argued the investigator played on Pischel’s emotions and continued to chat with him after Pischel said no thanks — she was too young — two months earlier.
When Pischel said he wouldn’t meet, the investigator sent an angry face emoticon. When Pischel tried to end the chat without contacting the “girl” again, the investigator blew him a “kiss.”
Chief Justice Michael Heavican asked how specifically someone can “blow a kiss” online.
Graff said it was done by typing certain keys that create a picture, similar to a smiley face made by a colon and a parenthesis. In this case, he argued, it added up to government inducement — by case law, opportunity plus “something else.”
“At first blush, it seems kind of silly to say the opportunity plus something else is an angry emoticon, an angry face. But that’s really what it is,” Graff said.
He argued Pischel should have a new trial because the jury wasn’t allowed to be given an instruction on the entrapment defense.
But George Love of the Nebraska Attorney General’s Office said such a jury instruction wasn’t warranted.
Love said if an emoticon now is to be considered government inducement then an exclamation point must be, too.
“‘Cause that’s what an emoticon is. It’s a form of punctuation,” he said.
Love said Pischel admitted at trial he initiated the conversation, kept the conversation going, made sexual overtures and went to a park to meet.
When Pischel showed up at the park, it was corroboration he had arranged the meeting, though he already had committed the crime of enticing a child by computer by punching in the keys and sending the messages, Love argued.
The fact that the government stood there and posed is not inducement. It requires something more, he said.
“In other words, if merely getting on a computer and posing as a 15-year-old girl is entrapment, then the statute’s done,” Love said. “That’s all that happened in this case.”
Lincoln police arrested Pischel on June 3, 2007, near Tierra Park in south Lincoln, where he had gone, police said, to meet the girl for sex.
The “girl” turned out to be Lincoln police investigator Ed Sexton, pretending to be a girl in an online chat that turned sexual.
At trial, Pischel said he believed the girl was a woman play-acting. But the jury rejected the claim and found him guilty.
Pischel, who was working as a state corrections officer at the time of his arrest, already has served his 1- to 2-year sentence and was released Oct. 25.