Tobin hearing focuses on definitions

CONCORD, N.H. – Shades of distinction on the meanings of harassment and intention – and a judge’s view of those – could mean acquittal or a second criminal trial for a former national Republican Party official implicated in a five-year-old phone jamming plot.

Convicted in 2005 on conspiracy and telephone harassment charges, James Tobin, 46, of Bangor faces 10 months in prison over his alleged role in the 2002 get-out-the-vote phone banks run by state Democrats and a Manchester firefighters union.

This spring, the 1st U.S. Circuit Court of Appeals in Boston overturned Tobin’s conviction and sent it back to U.S. District Court in Concord, saying Judge Steven McAuliffe’s jury instructions defining harassment were overbroad and prejudicial to Tobin.

Five years ago, Tobin was a regional director in New England for the Republican National Committee. He also worked on the National Republican Senatorial Committee, overseeing campaigns in several states, including New Hampshire and Maine.

He was accused of helping to coordinate hang-up calls that jammed get-out-the-vote phone banks run by New Hampshire Democrats and a nonpartisan Manchester firefighters union for about 90 minutes on Election Day 2002. The ballot that year included a close U.S. Senate race in which Republican John Sununu defeated former Gov. Jeanne Shaheen, a Democrat.

On Tuesday, lawyers who argued the original case two years ago found themselves in front of McAuliffe again. This time, they debated for more than an hour the definition of harassment, whether harassment occurred during the phone jamming, and if so, whether it was the purpose or side effect of the repeated hang-up calls.

Defense attorney Tobin Romero, who has handled much of the appellate work in the case, said the telephone harassment law Tobin was tried under was not a good fit because it requires that the culprit have a purposeful intention to harass. Prosecutors didn’t focus on harassment during the trial, he noted.

“The government throughout this case has said the sole purpose was to disrupt phone communications,” Romero said. “The Court of Appeals said … sorry, this [telephone harassment] statute doesn’t cover this.”

Federal prosecutor Andrew Levchuk said Tobin and other Republicans involved – all experienced political operatives – would have known that repeated hang-up calls would upset and distress phone bank workers on Election Day, and their choice was “part and parcel” of the plan to jam communications.

“That was so connected to the nature of the plan they came up with,” he said.

If Republicans wanted simply to disrupt communications, they could have chosen anything from cutting phone lines to using “sleeping gas” on phone bank workers, Levchuk said.

“One could gas each office and knock everybody out for two hours,” he said. “Have you harmed them? Not in the nature that you do with constant repeated calls.”

On the questions of intent and harassment, McAuliffe noted that it’s difficult to gauge when annoying behavior becomes harassment or to determine a direct result from a consequence.

A stalker can claim his intention behind repeated phone calls to an ex-girlfriend is to reconcile; telemarketers and political canvassers calling persistently may unknowingly cause emotional distress that some would consider harassment, McAuliffe said.

“[As a defendant,] don’t I have to know that in order to be fairly prosecuted?” McAuliffe asked.

Lawyers also differed on whether, if Tobin is not acquitted, he could be tried a second time.

Levchuk said a second trial would not amount to double jeopardy because the conviction was reversed over jury instructions, not evidence. He said prosecutors would have a legal right to re-examine the case and add new evidence to try to prove harassment was intentional.

McAuliffe noted defense lawyers would see it differently.

The judge took the matter under advisement. There is no timetable under which he must make his decision, but a new trial has been scheduled for Dec. 4 should McAuliffe find it necessary.