The Nebraska Supreme Court has rejected an appeal by a former prison guard who argued that police lured him to send lurid computer messages to an investigator posing online as a 15-year-old girl. In a ruling released Friday, the high court upheld James Pischel’s 2008 conviction and sentence for using a computer to entice a girl into sex.
Pischel, 31, was arrested in June 2007 after exchanging online messages with Lincoln detective Ed Sexton, who was posing as a 15-year-old girl, and driving to a Lincoln park to meet the “girl.” Pischel was sentenced to one to two years in prison and was ordered to register as a sex offender.
Pischel is a former corrections corporal at the Lincoln Correctional Center.
Pischel argued that he was entrapped – meaning that he was enticed into committing a crime that he otherwise would not have committed. In Pischel’s appeal, attorney Matthew Graff said his client first told the “girl” he wouldn’t meet her because she was too young and that Sexton responded by sending an emoticon indicating anger. Emoticons are computer symbols used to express mood.
In Friday’s ruling, Judge Lindsey Miller-Lerman wrote that although Sexton “expressed some disappointment, such expressions were not persistent and that it was Pischel who initiated plans for the two to meet.”
The court also rejected Pischel’s claims that Lancaster County District Judge Karen Flowers was wrong to allow evidence taken from his car without a search warrant. Miller-Lerman wrote the taking of two packaged condoms from Pischel’s car was harmless error because it was of “minor interest” to the case. There was plenty of other evidence, namely the online conversations, to support his conviction, she wrote.
The ruling also rejected Pischel’s argument that the lower court was wrong to give the deliberating jury access to transcripts of the online conversations. “We agree with the district court’s determination that the transcripts of online (conversations) were not testimonial material but instead were substantive evidence of Pischel’s guilt,” Miller-Lerman wrote.