Tobin’s silence spurs questions and doubt about phone jamming

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BANGOR – James Tobin’s sentencing last week in U.S. District Court in Concord, N.H., failed to quell speculation about the former Republican official’s involvement in a scheme to jam New Hampshire Democrats’ get-out-the-vote efforts in November 2002.

Tobin, 45, of Bangor was sentenced Wednesday, May 17, to 10 months in federal prison and fined $10,000 after being convicted in December following an eight-day jury trial.

He was found guilty of conspiring to make more than 800 repeated hang-up calls and of aiding and abetting the making of those calls. Tobin was acquitted of the more serious charge of conspiring to deprive New Hampshire residents of their right to vote.

Democrats in New Hampshire and Washington, D.C., continue to clamor for answers about who else at the Republican National Committee – Tobin’s employer in 2002 – and the White House may have known about the plan. Republicans maintain it was a one-time incident in New Hampshire that ends with Tobin and the charges pending against the man whose Idaho firm actually made the phone calls.

Tobin’s friends, family and supporters shook their heads in disbelief when the man they know as a devoted husband and father, faithful churchgoer and Sunday school teacher, and eager and selfless volunteer was ordered last week to report to federal prison on June 23.

Before the sentencing, they submitted more than 160 pages of letters describing Tobin’s unselfish acts. But the jurors never met that man.

The prosecutors – three attorneys who work for the U.S. Justice Department in Washington – proved beyond a reasonable doubt to 11 women and one man that Tobin entered into a conspiracy.

Exactly how he did that remains a mystery, because Tobin never took the stand. His attorneys continue to maintain that in connecting one political operative with another, he simply was making a professional referral.

Charles “Chuck” McGee, the former executive director of the New Hampshire Republican Party, testified at Tobin’s trial that he asked Tobin whether he knew someone who had knowledge about disrupting phone lines. McGee said that Tobin gave him the phone number of Allen Raymond, a Washington political consultant who found the Idaho firm to make the calls.

Not putting a defendant on the stand may have been the biggest mistake Tobin’s defense team made in a trial strategy that at times seemed to be more focused on a possible appeal than on getting at the truth of what happened.

Why that decision was made is as much a mystery as why Tobin didn’t discourage the phone-jamming scheme when it was first described to him.

Whether to put a defendant on the stand is always a tough call, Bangor attorney Jay McCloskey said earlier this week. McCloskey, who wrote a letter in support of Tobin, served as U.S. attorney for Maine for eight years. Now McCloskey is in private practice, and his law firm, with offices in Bangor and Portland, often defends clients accused of white-collar crimes.

McCloskey said he was not familiar enough with the facts of Tobin’s case to comment on the decisions made by his defense team, but he did talk about when a defendant should or should not take the stand.

“[Defense attorneys] shouldn’t even make that decision until after the government has concluded its case,” he said. “There’s always a potential downside to putting a defendant on the stand, even if they make a very good witness. You just don’t know how they’ll come off. Jurors may just not like him or her for reasons that never occurred to the defense.”

McCloskey also said that some law firms have blanket policies of never putting defendants on the stand unless they insist on testifying. The facts of each individual case and the ability of a defendant to communicate clearly heavily influence the decision. Defendants who might hint at a previous criminal history or inadvertently admit to other crimes on the stand can do more harm than good.

“But in white-collar cases, my view is that your chances of winning are increased.” McCloskey said, “if you put the defendant on the stand – assuming he is a good advocate on his own behalf.”

Tobin vehemently maintained his innocence after his indictment by a federal grand jury in December 2004. In retrospect, some may question his decision to go to trial. Federal defendants who plead guilty rather than go to trial earn a decrease in their recommended sentences under the sentencing guidelines.

That’s why Tobin’s convicted co-conspirators were sentenced to less prison time. In addition, both men testified against Tobin.

McGee, 36, of Manchester, N.H., served seven months in federal prison last year. Raymond, 39, of Maryland originally was sentenced to five months in prison. His sentence was reduced to three months after Tobin’s conviction. He is scheduled to be released next week from the Federal Correctional Institute at Loretto, Pa.

Had Tobin pleaded guilty, his sentencing guideline range would have been zero to six months rather than six to 12 months in prison.

At his sentencing last week, Tobin offered no insight into what he thought he was agreeing to when he gave Raymond’s phone number to McGee. He simply said: “It is the greatest regret of my life.”

Tobin’s attorneys have said they intend to appeal his conviction to the 1st Circuit Court of Appeals in Boston. Realistically, he could not admit guilt at sentencing after maintaining his innocence for so long. While his allocution most likely would not impact the appeal, it could be used against him if he were granted a new trial.

Dane Butswinkas and Tobin Romero, Tobin’s lead defense attorneys, steadfastly have refused to comment on the case to reporters. Not commenting to the press is the policy at Williams & Connelly, the Washington law firm hired by the Republican National Committee to represent Tobin.

A similar policy is followed by the Justice Department, although prosecutors usually will comment briefly after a defendant is convicted and sentenced.

The RNC has been criticized for reportedly paying Williams and Connelly $2.8 million to defend its former employee. Justice Department attorneys have not said how much their investigation of the scheme or prosecution of the plotters has cost, but have maintained it has not been as expensive as Tobin’s defense.

The RNC stopped paying Tobin’s legal fees when he was convicted, but the firm is expected to follow through with the appeal.

That may be because Butswinkas and Romero believe that Tobin is innocent or because the firm’s own win-loss record is on the line.

A major reason they are going forward, however, is that Tobin’s appeal is a “case of first impression.” That means U.S. District Judge Steven McAuliffe, who presided over Tobin’s trial and sentencing, is the only judge in the nation who has said it is legal to use the telephone harassment statutes to prosecute someone for jamming a political opponent’s phone lines. Such conduct was not against the Federal Election Commission rules three years ago.

Despite Tobin’s silence so far, New Hampshire Democrats hope the lawsuit they filed before Tobin’s indictment in state court against the Republican Party will force him to go on the record.

Last year, Superior Court Judge Philip Mangones granted the Justice Department’s request that the civil case not go forward until after Tobin’s trial. If the judge decides to grant the Republican Party’s motion to dismiss, Democrats have vowed to appeal it to the New Hampshire Supreme Court. If that motion is denied and the case goes forward, Democrats are anxious to question Tobin in hopes he will admit his guilt and implicate others.

McCloskey dismissed the notion that Tobin went to trial and refused to cooperate with prosecutors to protect party higher-ups.

“I personally don’t give any credence to theories about defendants doing anything to protect any higher-ups,” he said. “Protecting someone like that rarely happens.

“In that situation, when you have your whole life and your family on the line,” he said, “you’re not going to take a bullet for anybody. You’re going to protect your interests and yourself.”