Here's the "logic" behind the Appeals Court decision--setting Tobin free based on a defense claim that, they admit, was never raised at his trial:
On appeal, Tobin argues that "harass," in the present context, means to cause emotional distress in persons at the called number, that the jury should have been so advised, and that the "good faith" and "unjustifiable motive" language greatly broaden the statute beyond its permissible meaning. Footnote The government responds that the attack was not preserved in the district court and is also without merit.
It is true that Tobin did not ask the district judge to use the emotional distress language now urged. Understandably seeking the narrowest reading, Tobin asked the district court (in objection b. to the instructions) to define the term "harass" to mean "to threaten or frighten." Tobin's fall-back position on appeal is less restrictive, and wisely so, since nothing in the term "harass" limits it to threatening or frightening conduct.
This omission, unless the two versions are very close, arguably forfeits this claim–-subject always to the plain error doctrine.
During Tobin's trial, his defense repeatedly claimed that "harassing" phone calls could only be phone calls that were intended to frighten the recipient. Judge McAuliffe repeatedly rejected this claim, and the Appeals Court agrees that McAuliffe was right.
Only for the appeal does the defense add a key concept--that harrassing phone calls must be intended to cause broader kinds of emotional distress -- eg (page 3 of 25 in Tobin Docket #168, Tobin's Request for a New Trial)
...Congress intended 47 U.S.C. § 223 to criminalize telephone calls made with an intent to inflict emotional distress on recipients – whether that distress be termed fear, intimidation or torment.
You are not supposed to be able to make brand-new claims in an Appeals Court--but this Appeals Court allowed it because of a second objection to Judge Stephen McAuliffe's instruction to the jury on telephone harassment--(pages 30-31 of Judge Steven McAuliffe's 39-pages of jury instructions, Tobin Docket #144. A denial-of-service-attack, like the phone-jamming, is not what the harassment statute was meant to forbid, says the Appeals Court:
...Whether the plain error test could be met need not be decided because we agree with a companion objection to the instruction which Tobin fully preserved, namely, that (quoting his objection f.):
The references to "an unjustifiable motive" and "reasons other than a good faith effort to communicate" dilute the intent requirement, which is a specific intent to harass, not just any unjustifiable motive or any reason other than a good faith effort to communicate.
We side with Tobin on this single issue. The district judge made a creditable effort to make sense of the perplexing statute. But in the end, the district court's "unjustifiable motive" and "good faith" language, used virtually to define "intent to harass," broadens the statute unduly.
Tobin can be re-tried for the very same actions--now that USAgate has refocused attention on the phone-jamming slow-walk, he probably will be. That said, Mr. Tobin's crime occurred in 2002; he wasn't indicted until 2004; his original trial was in 2005, and it's now 2007. If President Bush in 2008 hands out a bunch of pardons before leaving office, then former Bush Ranger James Tobin is very unlikely to see even one day of jail time.
And it's hard for me to imagine that James Tobin didn't know that blocking Democrats' phones on Election Day would be sure to cause "emotional distress."
Those millions the RNC spent on two law firms' worth of lawyers bought yesterday's surprise ending in US Appeals Court. I can't help wondering if they intended all along to string McAuliffe along to keep on rejecting the clearly specious claim that "harassment" meant "frightening", only to re-word that claim in a much more palatable way for the Appeals Court. Not to mention the enormous haystack of other claims with which the defense bombarded McAuliffe's courtroom.
Bonus links:
Paul Kiel's post about the Appeals Court decision is enriched with some lawyerly-but-clear comments.
This one, by "rea" seems especially useful:
"The essence of the Circuit's decision is that the conduct that Tobin engaged in in this case does not fall within the meaning of harassment as that word is used in the statute."
No.
What the Court said was (a) there was an error in instructing the jury, requiring a retrial, (b) there was sufficicent evidence to convict Tobin if what the statute requires is an intent to harrass, rather than a purpose to harrass, and (c) there is an open question, which the appellate court did not resolve for procedural reasons, about whether the statute requires a purpose rather than an intent.
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