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Attorney: Emoticons in chat led to entrapment

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BY LORI PILGER / Lincoln Journal Star

Thursday, Dec 04, 2008 - 12:17:49 am CST

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.

Story Photo
(Katie Nieland)

Related Link(s):


3.11.08: Lincoln man gets 1 to 2 years for enticing juvenile with computer
6.5.07: Corrections officer accused of child enticement
Emoticon: A computer term used to describe an abbreviation or icon used on a network, such as BTW for "by the way," or :-), a sideways smiley face, to indicate amusement. (Dictionary.com)

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.

Reach Lori Pilger at 473-7237 or lpilger@journalstar.com.


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What A Ridiculous Argument wrote on December 4, 2008 4:11 am:
" The cost of that appeal (which are likely being paid by YOU the taxpayers) should be levied against THAT ATTORNEY! What a ridiculous argument - - and don't give me the old argument that he was just zealously representing his client! No matter how you spin it, arguments as ludicrous as that shouldn't tie up our legal system. And maybe, just maybe, we would have fewer frivolous legal proceedings and maneuvers from lawyers if attorneys were made to be responsible for the some of the things that they do. "

 Mirriam wrote on December 4, 2008 4:16 am:
" Be careful out there in cyber land because an asterisk will be declared an "anatomic terminus" if this case succeeds. "

 Its all virtual wrote on December 4, 2008 7:16 am:
" I'm not familiar enough with the way the law describes "inducement," but this does pose an interesting question. If this were done in person, would someone winking, blowing a kiss, grinning in a suggestive way, etc. be considered inducement? If so, then shouldn't the same idea apply to those actions being pantomimed in a text message? I've always thought that the concept of arresting someone for thinking about committing a crime (which is what happens in these cases; nobody can prove that he would have actually followed through if it had been a real 15-year-old girl and not a middle-aged male cop) is absurd, but even if you agree with it, you can't expect to have it both ways. If flirting with a non-existent under-age girl is a crime, then if the non-existent girl flirts back or implies the desire to do something physical, that's entrapment, isn't it? "

 CS wrote on December 4, 2008 7:35 am:
" Ive always thought that police throwing themselves at people while posing as under age is ridiculous. There is no way to realistically divorce the mental age of a 30 year old police officer from the 'actions' of a 15 year old girl. You are playing at being 15 with the knowledge of a 3o year old. If people want to lie to each other all day in a chat room on the internet, the bastion of complete fantasy, then so be it. There is no was to prove a crime WOULD be committed, unless thought crimes are now punishable. In this case he went to the park to meet-fine, that's illegal. But with a little research the prosecutor could discover entire worlds of playacting adults pretending to be teens and pre-teens, and cats and dogs, and horses, and what have you. Pre-teen fantasies and 'animal play' and other things are out there and is quite happily practiced by consenting adults like it or not. Setting people up based on what someone thinks they might do should be illegal. "

 JB wrote on December 4, 2008 7:42 am:
" If the gentleman said he was not interested more than once why did the police continue to pursue it? It sounds like entrapment to me... "

 Murf wrote on December 4, 2008 8:01 am:
" Let's break this down a bit...

Mr. Love claims that an emoticon is merely a form of punctuation, but it isn't. An emoticon carries its own informational value. While it might be a symbol composed of punctuation marks, within the the online chat community emoticons have very real and well understood values.

Additionally I personally believe that 'getting on the computer and posing as a 15 year old girl' IS entrapment. "

 so wrote on December 4, 2008 8:01 am:
" so what if he said no once? can a 30-year-old man not control himself better than this? so if a woman asks a man if she can buy him a drink at a bar and he says no and she asks again, it's her fault if he gets drunk after that and wrecks his car and kills someone else? the point is, he needs to have self-control. if he really wasn't interested in meeting this "girl", why did he keep chatting and agree to meet? it doesn't really matter if he SAID he wasn't interested ONCE. he kept responding and continuing the conversation/relationship and that clearly shows he WAS interested. plus he DID go to meet her in the park with the intention of sex. i find it hard to believe he showed up to meet a 15-year-old girl to just "talk." "

 Buddha wrote on December 4, 2008 8:05 am:
" JB-You're right. It sounds like entrapment, because the police persisted at getting to this guy, especially after he said no more than once.

One quote by the attorney for the state bothers me. Here's the quote: “‘Cause that’s what an emoticon is. It’s a form of punctuation,” he said. Now, one thing that I've heard emphasized is that if you want to be an attorney, you need to be well-versed in English. If this attorney was well-versed in English, he wouldn't have made the statement I quoted. I teach in a college setting, and if I had a student who used an emoticon as a punctuation mark, they get hammered for it on their grade because it is NOT a punctuation mark! "

 CS wrote on December 4, 2008 8:22 am:
" "...should NOT be illegal." "

 The Bottom Line wrote on December 4, 2008 8:24 am:
" I think sometimes people get wrapped up in verbage etc. The bottom line here is that the defendant should NOT have EVEN CONSIDERED meeting a young person! Come on people, look at the big picture. An intelligent, prudent adult knows it's wrong to meet up with a juvenile. The defendant could have and should have simply... WALKED AWAY! "

 Don wrote on December 4, 2008 8:24 am:
" I don't agree with being sentenced to 1-2 years, than getting out in six months based on the good behavior guidelines. Am I understanding that correctly? He was sentenced in March of `08 and released in October. "

 read again wrote on December 4, 2008 8:38 am:
" JB..."Pischel admitted at trial he initiated the conversation, kept the conversation going, made sexual overtures and went to a park to meet." "

 Uh HELLO wrote on December 4, 2008 8:50 am:
" The guy went to a park to meet the 'girl' for sex, and used the lame-o excuse that he thought maybe she was someone older pretending to be someone younger. HE arranged to MEET this girl for sex. That is a crime. People are mulling the other aspects, and those are moot. He went MEET UP with this girl at a park. A PARK. "

 Punctuation wrote on December 4, 2008 9:11 am:
" Please correct me if I am wrong, but emoticons are not used as punctuation. Emoticons are not intended to grammatically close a sentence, they are used to add "emotion" to the non-verbal sentence. And IF emoticons were used to keep this guy talking, it should be considered entrapment. "

 citizen wrote on December 4, 2008 9:50 am:
" Entrapment is when the police back you into a corner and you have no other alternative but to commit the crime. Could he have exited the conversation? Shut down his computer? Yes!! He did NOT have to go to the park to try and meet this girl. This is not entrapment, but a sexual predator trying to pull one over on the court. "

 Alan wrote on December 4, 2008 10:15 am:
" To my non-legal mind this is entrapment pure and simple. The fact the cop was on-line in the first place makes it entrapment. No different from the cop posing on a street corner as a hooker. They are creating an opportunity for crime that would not otherwise exist. Zealous prosecutors have overcome legal objections to cops posing as drug dealers, drug buyers and hookers but that doesn't make it right. Were it not for the involvement of the police no crime would have been committed. "

 So whats new wrote on December 4, 2008 10:44 am:
" A friend of mine owns a package liquor store. Guy comes in, picks up a 12 pack from the cooler, carries it up front to the counter. Owner asks for an ID. The ID showed the guy was underage. Owner keeps the ID, calls the cops. NSP walks in and says he is working for them in liquor enforcement. Owner wants to file charges for MIP, cuz the kid had possession of the beer while carrying it to the counter. No charges were filed. I guess it is OK for the cops to break the law to enforce the law. "

 To Alan wrote on December 4, 2008 10:45 am:
" A Crime would have been commited only it would have been a REAL 15 year old girl. "

 Rockwell wrote on December 4, 2008 11:56 am:
" Gotta say I'm suprised at all the defense of this guy. I understand that the police have an ethical and legal obligation to maintain certain standards when attempting to stop crime, but come on. Isn't this a bit of a stretch? If communicating on an online forum in the manner kids do, in order to detect and detain an abuser - then what's next? A 31 year old man really dosn't have any reason to be online with minor. I'm glad they got him - even if he wasn't going after this girl (officer posing as a girl) aggressively, he was probaly working up to it - and if not this 'girl' then the next one. He put himself in this situation...and then said yes. That's enough for me to say he got what he deserves. NO to entrapment "

 entrapment wrote on December 4, 2008 12:32 pm:
" Most people that throw this word around don't even know what it means. It's about getting someone to do something they wouldn't ordinarily do. I think the defense attorneys argument is weak to say the LEAST.
What makes an adult stay in this kind of conversation once the other person says, 'I'm fifteen'? What? No adult woman does that, so come on! That's why this is necessary, I think. The guys that get caught on 'To catch a Predator' always say this same crap. If you are defending this convicted criminal, and looking for ANY type of excuse here ('entrapment') I would guess that you think surfing for minors on the net is okay. "

 OK wrote on December 4, 2008 1:12 pm:
" So if it were your 15 year-old daughter lamenting what happened following her meeting in the park with a male 30 something, please don't attempt to entrap him, ok? "

 Good Time wrote on December 4, 2008 2:24 pm:
" If you don't agree with the Good Time statutes, then contact your congressman. "

 Ned wrote on December 4, 2008 3:13 pm:
" The better question might be: can you really be indicted for meeting a 15 year old girl if the 15 year old girl is really a male cop trying to suck you into something you are reluctant to do? Sounds a lot like entrapment. "

 To Alan wrote on December 4, 2008 3:49 pm:
" How is a cop posing as a hooker entrapment. You really think that if that cop had not been standing on that corner that perv wouldn't go to the next corner to find a hooker? No he wanted a hooker and just picked the wrong one. The same thing with this guy, he wanted a 15 year old girl, but he got a cop instead. If this cop hadn't been there it would have been a real 15 year old girl he would have meet in that park. At any point he could have said no and stopped the conversation but he was doing exactly what he wanted. "

 Disgusted wrote on December 4, 2008 6:49 pm:
" This kind of "perverted justice" scenario really is a perversion of justice. It's bad enough if cops dress up as hookers and wait to be accosted. For a cop to pose as someone of completely different age and gender, then spend weeks or months online in conversation with someone, wearing down their initial resistance, and badgering them until they finally agree to meet is beyond entrapment. Who is the sexual predator here? "

 To Disgusted wrote on December 4, 2008 8:31 pm:
" So it is ok for a young girl to "entice" an older man and the man shouldn't be held accountable for his own actions? Instead of walking away, he's "badgered" into having sex with an underage child and that's ok in your book? "but your honor, she wore down my initial resistance" isn't a good defense. "

 There are Predators Out there... wrote on December 5, 2008 12:29 am:
" There are predators out there looking, waiting, texting, emailing, chatting, wanting that one moment when they can get a minor child. YES CHILD!!! and manipulate the young and unexperienced mind to get an end result. Is this not SICK! What if this were your child? She comes home raped, beaten, scarred for life, possibly pregnant from a 30+ year old pervert. Wouldn't you tell the State, the City they needed to do something to prevent this? These laws have been put into place to prevent the above from happening. This is not entrapment. Nobody ever forced this guy to meet this "alleged" girl. Law Enforcement Officers put themselves in harms way, and all they get is "it's entrapment" just because they are there to take action AFTER the guilty one has decided to take action. Sounds like just another person speeding down an empty road only to find a cop sitting in the dark with a radar. Not entrapment. It's there job. "

 AR wrote on December 5, 2008 12:46 am:
" First let me say I am NOT defending this man or what he did!
Rockwell said "A 31 year old man really doesn't have any resson to be online with [a] minor." About 8 years ago (at age 29) my hubby and I spent quite a bit of time in chat rooms, one in particular. There were minors in the room as well as adults, much of the time the kids talking to the kids while we adults talked. Occasionally there would be chat between adults and kids but it was all good humored. I've talked to teens in chatrooms while playing games on popular websites. If the kid is inappropriate I tell them so and then simply close the room (or instant message) and don't respond to them again. I don't tolerate it from my own teenager, I'm not going to tolerate it from a total stranger.
So, yes, sometimes adults and kids talk online.

It isn't inappropriate or wrong unless the adult engages in or responds to inappropriate (sexual) chat. Of course there are exceptions to every rule and other subjects best avoided because as adults we all know better! "

 Alan wrote on December 5, 2008 9:52 am:
" Police cross a line when they engage in what would normally be criminal activity purportedly to catch a criminal. I'm not defending child predators but posing as a 15 year old girl and repeatedly propositioning the man is beyond the pale. Police should focus on investigating crimes, apprehending criminals and restrain themselves from “creating” crimes to prosecute.

The end result of this is at best, sloppy police work and at worst outright corruption. "

 JRP wrote on December 5, 2008 10:10 am:
" What he did was wrong. What the police did was equally wrong.

Not sure of the law here, but that sounds like entrapment. The police initiated the discussion of meeting. They then continued to entice him to meet up with the "girl" after multiple denials.

Many adults and teens talk online every day just to "social" (whatever happened to just hanging out with your friends anyway?). And yes, EMOTICONS are more than just a punctuation. They are not called "emot"icons for nothing. They are meant to convey one's emotions to another person. For those who don't know much about them, just google it and see the thousands of them available. They are wide ranging in content and meaning. Many of them are animated and pretty much say an entire conversation by themselves. "

 kb wrote on December 5, 2008 11:02 am:
" People, please be careful about judging without data. I've read about another case that was prosecuted where, while the officer answered a "how old are you" question with an age that was "too young"...but then in conversation had talked about experiencing things that made it obvious this person was his own age.

When the chat transcripts were actually made available, it was clear that the alleged perp was the real victim. When someone's flirted with you for half an hour, describing her experiences as a young girl at Woodstock, and answers "14 " when you ask her age, it isn't unreasonable to assume she's kidding! Yet that's apparently enough to get a man prosecuted, convicted, and publicly condemned as a monster.

(Woodstock was an exaggerated example, of course. I don't remember the real details of that transcript) "

 Ignignokt wrote on December 5, 2008 11:16 am:
" It's sad to see all of the child molester apologists sticking up for this guy. On one hand, I think there are valid legal questions being raised by the lawyer...but on the other hand, it is ALWAYS illegal for a 30-something adult to have sex with a minor under the age of 16. Heck...if you think about it, 16 is bad enough.

If the guy couldn't say no and just close the window, then I think it reveals a bit of character. How many adult women do you know that would lie about being a 15-year old? A better question...how many 13-year olds would like about being 15 years old? I think you'd find a LOT more people in the latter group than you would the former. As an adult male, I know that having sex with a girl that young is not only illegal, it's wrong in every ethical and moral sense. Perhaps this may be acceptable in other, less developed countries around the world...but not here. If a 15-year old expresses sexual interest in a grown man...then the adult must do the adult thing and walk away, close the internet window...whatever it takes to sever any and all communication with the minor.

On the issue of entrapment...consider the following. If a 15-year old minor repeatedly expresses sexual interest in an adult over the internet, at what point is it okay for the adult to express reciprocal interest? What if that minor sends suggestive or explicit photos of themselves? Is it okay then? Or what if the minor invites the adult over their house to enjoy a few adult beverages and to see where things go from there? Is that okay?

The answer, quite simply, is NO! It is never okay. And if the offender would do it for an officer posing as a 15 year old...then they would most likely do it for an actual 15 year old. Therefore, they're not being enticed into doing something they wouldn't normally do. "

 CS wrote on December 5, 2008 11:41 am:
" Ignignokt, you are pretty naive to think that people of all age groups don't lie constantly about their ages on the internet. If everyone was as honest as you seem to think they are then MySpace and Facebook wouldn't be having the trouble that they have. Many adult men and women lie about their ages all the time, as do children, for many reasons. Anonymity, creating an online persona, preying on kids, lying to adults, gaining access to programs/sites that are not age appropriate-its all out there. Im a little fuzzy on why its 'legal' for a cop to lie like a rug, but regular citizens are denied the same privilege. "

 Webster wrote on December 5, 2008 11:52 am:
" Until you look up the legal definition in Nebraska of 'entrapment', you have no business commenting on whether that is an issue or not. Stop watching tv and learning your jurisprudence that way. Posing as a 15yr old is not entrapment. How many of us would engage in this sort of conversation with someone on line? How many of us would STOP once we found out the person on the other end is purporting to be 15 years old? So doesn't that show that this guy had a predisposition to pursuing this illegal act? It is unbelievable to me how many people are looking for a way to excuse this guy. It has been said here before and it is VERY true- If it wasn't the cop, it would have been an ACTUAL 15yr old. "

 Question wrote on December 5, 2008 12:03 pm:
" For those of you who believe this was entrapment--How would you suggest police officers catch overage men who want to have sex with underage girls they meet on the internet? If they don't catch them before they actually hurt a teenager, they can't prevent attacks. Is there any other acceptable way to prevent these predators from actually causing harm? "

 Ignignokt wrote on December 5, 2008 1:53 pm:
" CS, this guy didn't get busted for lying...he got busted for arranging a meeting for sex with a 15 year old girl.

It isn't illegal for people to lie about their age, so long as no other crime is being committed in doing so (minors trying to buy liquor, etc). If I had never posted my age or gender anywhere, I could come on here and say I am a 54 year old woman. While untrue, it's not illegal for me to say that. That's where the crux of this whole thing lies...while the guy might have suspected the girl was older than 15, he had absolutely nothing to base that conclusion on. As such, he should have acted in accordance with the information he had...regardless of how truthful he thought the information was. He would have been better off ending the conversation and chatting it up with someone who claimed to be of legal age. Granted, that's no guarantee...but if it went anywhere, he could actually verify the person's age once they've met. "

 js wrote on December 5, 2008 2:32 pm:
" To all of you defending the acions of this predator: Would you rather have the police be forced to wait until AFTER the girl had been assaulted for them to do something about it? What if it was your little girl? I think people are too caught up in the small technicalities of whether it was or wasn't enticement, and they are not looking at the big picture: A 31 YEAR OLD MAN had arranged to meet a 15 YEAR OLD GIRL for sex! It doesn't matter that the girl wasn't real. Chances are he's done this before and might do it again. Next time, he might actually prey on a real 15 year old. Wouldn't you all rather have cops out there catching these predators BEFORE they assault our children, rather than AFTER? In my opinion, they should do whatever needs to be done to protect our kids. "

 question wrote on December 5, 2008 3:19 pm:
" not trying to be funny, but what if (in this same scenario) the 31 year old man happened to be a 15 year old boy pretending to be an older man?! Is there a case against the cop (pretending to be a 15 year old girl) for trying to intice a 15 year old boy?! And would the public ever hear about it? "

 TWP wrote on December 5, 2008 5:00 pm:
" Unfortunately, I think the lines have blurred in our society. She was portrayed to be a 15-year-old GIRL, that deserves to be protected from adults. Yet GIRLS younger than her are sexually exploited by the media, Hollywood, clothing manufacturers, magazines, talent contests, etc. They are taught how to use condoms and access birth control at ages earlier than that. They can get an abortion without consulting their parents. If they declare their sexual choice as lesbian, we support them with groups they can join at school. For those types of decisions, we seem to be in a hurry to support their personal decisions when it comes to sexuality. Yet, we "protect" them from adults, because we don't feel they are "mature" enough to make those same decisions with an adult? I think the more we as a society blur the lines, these situations will occur on a more frequent basis. "

 Rick M wrote on December 5, 2008 5:35 pm:
" Well, for those of us who don't cruise the chat rooms looking for sex, whether with an adult or underage person, I'd say this.
Emoticon's are designed to be MOOD RESPONDERS... tells people what your thinking via computer... and there are HUNDREDS of them... for free.
HOW you choose to use them and what the person getting them thinks... well, thats what they are for.
The man worked in a PRISON... (I did for 3 years) So he's heard alot of stories and crimes...
His downfall was not talking to her, it was MEETING her... with intent.

THis is a great way for our POLICE to weed out sicko's

I suppose we should go after the cops who use the drugs from drug busts to sell to the drug users then also...

Any way you slice it, everyone will have a varied opinion.

Maybe next time the cops should use a real girl... (sarcasm... LOL ;) ) "

 Patti Jones wrote on December 6, 2008 11:55 am:
" Please explain to me how removing your wedding ring, placing it on the counter, going to the park to meet this 15 year old was entrapment? that jesture alone says to me he was willing to go ahead and mess with this young girl. And for everyone else out there who is interested in dating this pervert...... he ruined my daughter's life, went thru all her money, her grandparents money and then decided to go on to younger pasture. "

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