Wednesday, July 17, 2024

Marathon plant manager acquitted of noise violations


After a two-day trial earlier this week, Marathon Digital Holdings plant manager David Fischer has been acquitted of all charges related to alleged noise disturbances near residential areas in Hood County.

Marathon, the owner of the Bitcoin data center near the Wolf Hollow plant, has been the subject of several articles across the nation as residents have complained that the fans used to cool down the cryptocurrency computers are the cause of several health concerns. Many residents believe the low-frequency hum emanating from the plant is the source of their nausea, migraines, vertigo and ear infections.

For the past several months, Precinct 2 Constable John Shirley has written several citations against Fischer, stemming from the Texas Penal Code under disorderly conduct Section 42.01 (c)(2) which reads, “a noise is presumed to be unreasonable if the decibel level exceeds 85 after the person making the noise receives notice from a magistrate or peace officer that the noise is a public nuisance.” Such a violation is a Class C misdemeanor with a fine up to $500 per occurrence.

Local attorney George Freeman attended the trial in its entirety but does not represent either the defense or the prosecution. According to Freeman, testimony showed Shirley initially wrote 13 citations. One citation was thrown out for evidentiary reasons, and the remaining 12 proceeded to trial Monday, July 8.

Hood County Attorney Matt Mills told the Hood County News that a batch of tickets had also been written against the company itself, but this trial only focused on the citations against Fischer.

As the trial began, Mills presented a case supported by Shirley’s sound readings and testimonies from affected residents, aiming to establish that Fischer was responsible for the alleged disturbances.

However, Fischer’s defense attorneys from Gill & Brissette mounted a vigorous defense, challenging the accuracy of the sound readings and questioning the credibility of the complaints. They argued that Shirley had political motivations linked to his reelection campaign, which influenced his enforcement actions.

“They pointed to some serious irregularities in Constable Shirley's process," Freeman said. “They showed through testimony and through cross-examination of Constable Shirley and expert testimony that his readings were inaccurate and erroneous, and that they really didn’t offer proof of anything. They showed serious irregularities in the way the citations were processed through his office, and then they showed that he had written few citations. But once the campaign season for the primary (began) in which he had an opponent, he wrote them with much greater frequency. The defense's argument was that Constable Shirley needed an issue to assure his reelection, and he latched onto this as that issue. As the defense put it, he ‘rode to reelection on the back of David Fischer.’”

Freeman said the defense also questioned Shirley about his techniques in measuring the sound readings. The last witness, he said, was a “defense expert,” who demonstrated Shirley's inadequate calibration of equipment and incorrect interpretation of decibel scales.

"His readings just weren't trustworthy,” Freeman said. “The statute just says how many decibels of sound is presumed to be unreasonable, but there are different kinds of decibels. There's DBA and DBC and one of those is in the sound spectrum humans can hear and the other is not. There was just a lot about taking these readings that Constable Shirley didn't know, and the expert testimony showed that.”

Following testimonies from both prosecution and defense, the six-person jury reached a unanimous verdict within an hour, declaring Fischer not guilty on all charges.

"They were required to fill out 12 different verdict forms — one for each of the citations — and they found (Fischer) unanimously not guilty for all 12,” Freeman said.

Mills said the jurors who gave him feedback agreed that the low-hum frequency emanating from the data center is an “unreasonable noise.”

“The hangup was determining beyond a reasonable doubt that David Fischer was personally responsible,” he said. “I’m disappointed for the victims. We may proceed later against the company itself.”