Tuesday, April 3, 2012

DA drops case against blogger

Barbara Nichols got her panties in a wad. Ms. Nichols called the local police. The local police chief, Kenneth Cook, called the District Attorney's Office. The DA's Office gave the police chief the thumbs up. The local police arrested a blogger. The DA charged the blogger with online impersonation. The DA then realized he would end up with a bunch of egg on his face so he reversed course.

Allan Batchelor is the man behind Island Drumz, a blog about the goings-on in the enclave of Clear Lake Shores in Galveston County. Some of his posts deal with politics. Some of the rhetoric can get heated. Apparently Mr. Batchelor had some unflattering things to say about Ms. Nichols, the wife of city council candidate John Nichols. According to Ms. Nichols, Mr. Batchelor posted a comment with her address asking people to send her spam and viruses.

Here is what the fuss was all about. Since the incident, Mr. Batchelor removed Ms. Nichols' email address from the post.

Let’s jump back to my distribution list for a minute. How many of you got an email from Barbara today? I offer you my most sincere apologies. That is an old chili invitation list that somehow ended up on Barb’s computer. I asked her last year to please do not broadcast emails out in the open like that but I can see my plea for your privacy fell on deaf ears. Looks like she is practicing being an elected official. Mrs. Nichols, __________ I hope you get all the SPAM you deserve. You obviously have no concern for our privacy so I will wish the PC virus demons from hell on your inbox. I hope the rest of you have let Barb know you wish her well.

Section 33.07 of the Texas Penal Code defines the elements of online impersonation. We know Mr. Batchelor was charged with an offense of 33.07(b) because he was charged with a Class A misdemeanor, according to his account of his time in jail. Of course the immediate problem with charging Mr. Batchelor with online impersonation is, well, he made no attempt to give the impression that he was Ms. Nichols.

A person commits an offense if the person sends an electronic mail, instant message, text message, or similar communication that references a name, domain address, phone number, or other item of identifying information belonging to any person: (1)  without obtaining the other person's consent; (2)  with the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication; and (3)  with the intent to harm or defraud any person.

All of this over a city council race in a little pimple of town that no one outside of Clear Lake Shores has ever heard of (except for me since I once represented a man accused of cursing out a waitress at the local IHOP. The municipal court is housed in a restaurant/community center and the "judge's chambers" are the kitchen.).

Publishing Ms. Nichols' e-mail address probably wasn't the smartest thing Mr. Batchelor could have done - but it certainly wasn't the worst. I'm sure there are plenty of folks in Clear Lake Shores who knew Ms. Nichols' e-mail address from the broadcast e-mails she sent out.

But to charge a man with a criminal offense because the wife of a city council candidate was offended is beyond absurd. It reflects poorly on the police chief who either had nothing better to do or wasn't smart enough to figure out it was a bad idea. It reflects poorly on the Galveston County DA's Office who authorized the filing of the charges for a case it could never hope to prosecute.

H/T Grits for Breakfast


Roselyn said...

Thank you for your post and I as a citizen of Clear Lake Shores and a regular blogger, I completely agree with your comments. Hope you don't mind but I pasted a link from our blog to this article. Roselyn

Anonymous said...

Just how would you take action?