Ex-GOP official faults grand jury

CONCORD, N.H. – A former Republican official says charges that he conspired to jam Democrats’ get-out-the-vote phone lines on Election Day 2002 should be dismissed because the grand jury that indicted him included Democrats.

The grand jury “included purported victims of the alleged scheme – Democrats,” said a motion filed by James Tobin, who at the time was the Northeast political director of the national Republican Senatorial Committee. He was indicted in December.

“The government must demonstrate that it properly screened the grand jury to prevent bias, and if it cannot or will not do so, the indictment must be dismissed,” the motion said.

And if the case does go to trial, Tobin’s attorneys want to question prospective jurors extensively about their politics and their exposure to media reports of the case to root out potential bias.

A proposed questionnaire would ask prospective jurors to disclose their political party, union membership, whether they’ve ever had a bumper sticker on their car and what it said, what Web logs they read and whether they ever watch TV shows such as “West Wing,” CNN’s “Crossfire,” MSNBC’s “Hardball with Chris Matthews,” and “The McLaughlin Group,” which mostly runs on public television stations.

Tobin’s attorneys also want jurors to describe themselves by checking off all that apply: “aggressive, articulate, emotional, entrepreneurial, intelligent, laid back, loyal, naive, perceptive, stubborn, [or] other.”

Federal prosecutors countered that Tobin is required to prove actual bias by the grand jury: He cannot ask judges to assume that Democrats would indict based on their political convictions, anymore than judges can assume Republicans would indict Democrats in violation of their oath to look only at the evidence.

The U.S. Department of Justice attorneys also said the judge, not attorneys, should question the jury pool for the trial and that those questions should be narrowly tailored to reveal bias. Anything more could be “invasive and unfair,” they argued.

The questions should not be “a vehicle to pack the jury with certain personality types or jurors of a particular philosophical bent,” they said.

Tobin is accused of telling Chuck McGee, former executive director of the state Republican Party, that former GOP consultant Allen Raymond could help with McGee’s plan to jam five phone lines set up by the Democratic Party and a ride-to-the-polls line operated by the Manchester firefighters union. Raymond then hired a telemarketing firm to make hundreds of hang-up calls.

McGee and Raymond pleaded guilty last year, agreed to cooperate with federal prosecutors and received sentences of seven and five months in prison.

Tobin, of Bangor, Maine, has pleaded innocent to four counts of aiding and abetting and conspiring to commit interstate telephone harassment.

U.S. District Judge Steven McAuliffe will hear arguments on Friday regarding six motions by Tobin to dismiss the charges, as well as the proposed jury pool questionnaire.

Patricia McEvoy, a Chicago jury consultant, said most of the proposed jury pool questions were typical. Questions about political affiliation and leanings would not be allowed in most cases, but in this case they are relevant, she said.

“You don’t have to do research to know that someone who likes “West Wing” isn’t going to like these defendants,” she said.

Still, it would be a mistake for defense attorneys to think Democrats would be the only ones offended by the alleged crimes, she said.

“Some Republicans are going to be offended by political trickery. They don’t want to win that way,” she said.

Defense attorneys also run the risk of offending prospective jurors with the personality inventory, but it can be helpful in identifying independent thinkers willing to hang a jury, she said.

In other motions to dismiss, Tobin argues he merely referred McGee to Raymond without agreeing to the scheme, so he cannot be charged with conspiracy.

He also says he had no intent to “annoy or harass” the recipients of the calls, but only intended to “disrupt communication,” and argues he was improperly charged under a law intended to prevent obscene and threatening calls.

“While the indictment focuses on the 2002 election, the government apparently could find no federal election law that criminalized the alleged conduct. Instead, the indictment attempts to shoehorn this alleged conduct into an obscure federal statute that does not fit,” one motion says.

The Justice Department agreed to consolidate or dismiss one of the two conspiracy charges. But federal prosecutors opposed Tobin’s other motions, essentially arguing he could raise his claims at trial.

Last year, Tobin served as regional chairman of President Bush’s re-election campaign. He stepped down in October after the allegations against him became public in a separate civil lawsuit filed by Democrats.