But earlier this month Tobin was let off the hook on a key charge in the phone-jamming case. This is strange business.
In 2002, Tobin and others cooked up a plan to bombard the phone lines of the New Hampshire Democratic Party and the Manchester firefighters, blocking a get-out-the-vote effort planned for U.S. Senate candidate Jeanne Shaheen. The phones were swamped. Republican John E. Sununu won the election. (Shaheen ran again this past November and ousted Sununu.)
In 2005, a federal jury did convict Tobin on two counts of telephone harassment. He was sentenced to 10 months in prison.
But a federal appeals court ruling invalidated that conviction. The court said: "That Tobin assisted in the substantive crime is patent . . ." But it concluded that U.S. District Court Judge Stephen McAuliffe's jury instructions were flawed, that the specific crime of "harassment" had not been proven.
Maybe Tobin didn't want to harass anybody; maybe he just wanted to jam the phones so Sununu would win the election.
So McAuliffe had to overturn the verdict. Government prosecutors appealed.
On Jan. 7, in a three-judge ruling that mirrors the earlier one, the court rejected that appeal. Oh, the phone-jamming in which Tobin participated was "thoroughly bad conduct," the judges wrote. No doubt about that. But it wasn't harassment.
"We are not willing to construe over-generously a criminal statute to cover cases that should not be made criminal in the hope (usually but not invariably borne out) that prosecutors will exercise restraint in the interest of common sense," they wrote.
Construe over-generously? Well, let's see.
One definition of harassment is related to annoying or worrying someone. That may not have been Tobin's intention. But there are other definitions.
In Webster's New World Dictionary, which we use at The Sentinel, one definition of "harassment" is "to trouble by repeated raids or attacks, etc." Merriam-Webster's online edition says harassment is "to worry and impede by repeated raids."
Webster's II New College Dictionary says harassment is "to impede (an enemy) by repeated attacks or raids." The American Heritage Dictionary says it's "to impede and exhaust (an enemy) by repeated attacks or raids." Encarta says it's to "exhaust enemy with repeated attacks."
So Tobin and his friends were harassing the Democrats that day. They were impeding their get-out-the-vote effort and exhausting them by repeated attacks or raids via telephone.
Yet, finding that Tobin lacked the required intent to harass, the federal appeals court says otherwise, and that appears to be the last word in a case that has cost the Republican National Committee several million dollars on Tobin's defense.
Last year, New Hampshire 2nd District Rep. Paul Hodes wondered aloud about possible "unlawful interference of Department of Justice officials in the judicial process" related to this case. He said the U.S. House Judiciary Committee would investigate these matters.
One brief hearing was held. Possible White House involvement in the phone-jamming was surmised by one of the conspirators. Then the matter was dropped.
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