A federal judge in Concord, N.H., has rescheduled a new trial for James Tobin, 47, of Bangor on conspiracy and telephone harassment charges over his alleged role in the 2002 get-out-the-vote phone banks run by New Hampshire Democrats and a firefighters union.

U.S. District Judge Steven McAuliffe set Feb. 20 for jury selection even though he has not yet issued his ruling outlining whether the former political operative for the Republican National Committee should be retried or if the charges should be dismissed.

The retrial, originally set for December, was to have started today. Trials often are rescheduled several times before they are held.

The 1st Circuit Court of Appeals last year reversed Tobin’s convictions and sent the case back to McAuliffe because his jury instructions defining harassment were overbroad and prejudicial to Tobin.

Tobin was convicted 14 months ago by a jury for conspiring to jam the get-out-the-vote phone lines of New Hampshire Democrats in the 2002 Senate race. He was sentenced to 10 months in federal prison but his sentence has been stayed pending the outcome of a new trial or the dismissal of the charges.

The fact that a trial date has been set usually is not an indication of how a judge may rule but it is unusual for a judge to hold a pretrial conference with lawyers, as McAuliffe did last week, before ordering a new trial. It is even more unusual for a federal judge to issue scheduling orders so close to a trial date before he has ruled on questions sent back to a lower court from an appellate court.

Lawyers who argued the original case before a jury went before McAuliffe again in November, The Associated Press reported. For more than an hour, they debated the definition of harassment, whether harassment occurred during the phone jamming, and if so, whether it was the purpose or a side effect of the repeated hang-up calls.

Defense attorney Tobin Romero, who has handled much of the appellate work in the case, told the judge in November that the telephone harassment law under which Tobin was charged 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 said.

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.

McAuliffe must issue his ruling before a new trial can be held but there is no other time frame he must follow.

Last week, he ordered lawyers for both sides to submit briefs by Friday, Feb. 8. They may hint at what legal issues McAuliffe is wrestling with.

Although Tobin did not take the stand in the original trial, his attorneys have maintained that he simply put the executive director of the New Hampshire Republican Party in touch with a national political operative in Washington, D.C. Through his attorneys, Tobin has said that he did not conspire to jam the phone lines but referred one professional to another.

jharrison@bangordailynews.net

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