Ruling reversed in EMT e-mail case

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Kevin Murphy/Special to the Gazette
May 30, 2008
— Prosecuting a former Jefferson emergency medical technician for allegedly hacking into his bossís computer and sending e-mails suggesting his boss was having an extra-marital affair didnít violate the EMTís constitutional rights, a state appeals court ruled Thursday.

The District 4 Court of Appeals reversed Jefferson County Judge Randy Koschnickís dismissal of the identity theft charges filed against Christopher Baron. Koschnick had ruled that the charge violated Baronís First Amendment right to defame with true information a public official.

Baron, 32, Ft. Atkinson, was charged in 2006 with two counts each of criminal defamation, obstructing an officer, identity theft and computer crimes. He admitted sending to about 10 people e-mails he found in the e-mail account of his boss, Mark Fisher, Jeffersonís emergency medical service director.

The forwarded e-mails appeared to have come from Fisher and suggested that Fisher was using an apartment owned by the EMS Department to conduct an extramarital affair.

Fisher committed suicide Aug. 11, 2006, the day after Baron sent the e-mails.

Baron knew Fisherís computer password and admitted sending the e-mails to local and county EMS officials and to Fisherís wife to show that Fisher ďwas not golden,Ē according to the court decision.

District Attorney David Wambach agreed to dismiss the defamation charges but appealed Koschnickís dismissal of the identify theft charges.

The parties agreed that Fisher was a public official and that Baron had the constitutional right to defame him with true information.

The identity theft statute requires the state to prove Baron intentionally used Fisherís personal information to harm Fisherís reputation and to intentionally represent that he was Fisher without Fisherís consent.

The Baronís attorney, Dan Dunn, argued that Baron was being punished for his intent to defame and indirectly punished for disclosure of defamatory information that was true, in violation of his First Amendment rights.

The appeals court disagreed, saying the statute criminalizes using anotherís identity without permission.

ďOne also has a constitutional right to keep and bear arms Ö but not to use them to commit homicide,Ē wrote Judge Burnie Bridge in the nine-page opinion.

In upholding the constitutionality of the identity theft statute, Bridge wrote that it didnít prohibit Baron from disseminating information about Fisher or prevented the public from receiving it. The statute prohibited Baron from claiming to be Fisher when he sent the e-mails, Bridge wrote.

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