Comments (49)

Steve Laniel wrote on March 22, 2007 12:13 PM:

Long-time reader, first-time poster. Listen, can I make a request from the world's liberal bloggers? Let us never, never, never use the phrase "getting off on a technicality." This is a phrase that conservatives use when they want to undermine the judicial system and talk about "activist judges" or criminals getting off easy. There are no technicalities. The law is there to protect us. Those flawed-jury-instruction "technicalities" are there to safeguard the sanctity of jury trials. Either you accept the technicalities or you reject the law.

When we use loaded terms like that, we play right into our opponents' hands.

From the badlands of New Mexico wrote on March 22, 2007 12:14 PM:

I wonder if "law and order" types from the right will be bemoaning the fact that another criminal is getting off due to a technicality?

So no acquittal. Does this mean that a retrial is in order?

parrot wrote on March 22, 2007 12:15 PM:

Hmm. Sounds like a friend of the appealing defense attorney on the Appeals court remanded the case. Doesn't sound too kosher to me at all. I wonder how many other political cases are handled in a similar manner...and, sadly, whether they will be judicially considered fairly at the Supreme Court level.

buck turgidson wrote on March 22, 2007 12:20 PM:

All this may be true, but was the prosecution working with one hand behinds its back? If so, now that the wheels came off the bus, the case just might suddenly get stronger. They have a case--a prosecutor should not worry about the attitude of the circuit court. Even the district court judge might not care much whether the conviction gets overturned, as long as he is convinced that the case has merit. We don't have appeals to hang over the judges and the prosecutors--they are there to give an appearance of fairness.

From the badlands of New Mexico wrote on March 22, 2007 12:20 PM:

Forget my question above. I have no idea what I was asking either. Please forgive me! It was Bill Clinton's fault.

It was my understanding that new evidence about DoJ foot dragging and improper interference was to be introduced in the case against the NH Republican Party, et al, and their involvement in this crime.

scribe wrote on March 22, 2007 12:22 PM:

I read the opinion yesterday, when it came out. A couple notes:
1. The first commenter, re the importance of correct jury instructions, is absolutely correct.
2. The next step is either for the gov't to appeal to the S.Ct., or to go back to the District Court for a retrial. At the retrial, a big issue will be the definition of "harass" and "intent to harass" - but the interesting side-light will be whether and to what extent the DoJ decides to starve this case of resources, on the one hand, and, on the other, whether they seek to expand the indictment to include other counts which likely could have been charged and weren't.
3. The gov't spiking this case - because it is political - will be yet another banana republic move, which I'd love to rule out, but can't.

melior wrote on March 22, 2007 12:23 PM:

OK, let's not use the word technicality, but as I understand it there is no doubt or disagreement that the phone jamming took place and that Tobin orchestrated it, just whether it was *legal* election night phone jamming, or some other sort.

scribe wrote on March 22, 2007 12:23 PM:

Oh, yeah.
4. The appeals judge who wrote the opinion, Boudin, is a long-time judge; very, very liberal. No politics there.

primigenius wrote on March 22, 2007 12:24 PM:

No one wants to see Tobin punished for his offenses more than I, but as a lawyer who makes most of his living doing criminal defense work, Mr. Laniel, above, is absolutely right. "Legal technicalities" is a right-wing buzzterm for what the rest of us should call "due process."

wondering wrote on March 22, 2007 12:34 PM:

Not sure if this is the best thread to ask this, but it's related to "getting off on a technicality" or due process as we are rightly reminded is the better description.

Regarding politically motivated prosecutions such as the voter fraud prosecutions against Democrats in the center of the USAgate case.

I vaguely remember such a case in the last year or so here in Georgia. I think a Democratic candidate here was successfully prosecuted for a small scale fraud case.

If it is shown there was a general pattern of politically biased prosecutions, could that be a valid reason for appeal or overturning the conviction?

JEP (John Edward Patterson) wrote on March 22, 2007 12:35 PM:

The Fix is in...

What's the political demographics of the appellate court?

Rove's still got too many skeletons in this closet to escape justice, Tobin might still have to turn on Rove to maintain his own freedom.

EasyRider wrote on March 22, 2007 12:37 PM:

"Legal technicalities" got us Oliver North as a hero.

"Legal technicalities" got us Iran-contras is good GOP PR.

"Legal technicalities" got us George Bush.

"Legal technicalities" got us no harm no foul GOP crimes.

"Legal technicalities" got us Geore W. Bush.

"Legal technicalities" got us every crime that Bush and his crime ring have done to this nation, to our Government, and to Americans.

"Legal technicalities" Got us the outing of Plame.

"Legal technicalities" got us a justice system rigged against honest Americans and providing complete immunity for GOP crimes.

Peter Principle wrote on March 22, 2007 12:39 PM:

It's depressing, but every time I read about a ruling like this these days I think: "Which GOP-appointed hack wrote it?" and "How much did it cost?"

Welcome to the United States of Guatemala

JEP (John Edward Patterson) wrote on March 22, 2007 12:40 PM:

"but the interesting side-light will be whether and to what extent the DoJ decides to starve this case of resources,"

Isn't the evidence from the first trial now on public record? Does this make all that evidence impotent, or top-secret, or can we still dissect the truth in that testimony? (since it was an instruction technicality, not tainted testimony, doesn't that suggest none of the testimony is suspect, and is reliable as evidence we might consider in our own blog deliberations.)

JEP (John Edward Patterson) wrote on March 22, 2007 12:45 PM:

Is it true that in Farsi, “Tony Snow” translates to “Fariq Aziz?”

Or is that just another vicious blog rumor?

Richard Wadsack wrote on March 22, 2007 12:46 PM:

Hats off to Steve Laniel for the appropriate response, cogently expressed!

nolo wrote on March 22, 2007 12:48 PM:

1. Stop bashing the judges. There is no indication whatsoever that the panel was corrupt in any way. By all accounts, the judges on the panel are intelligent, thoughtful and principled people.

2. Stop calling it a "technicality" when a court decides that prosecutors can't stretch existing criminal statutes to reach every reprehensible act that's out there.

Anonymous wrote on March 22, 2007 12:49 PM:

So which "loyal Bushie" slipped up on the jury instructions to allow this to happen?

Ian Kravitz wrote on March 22, 2007 12:50 PM:

The Court said

"the question is whether a jury could think that Tobin "had to" foresee the consequent reactions (or be willfully blind to them, which is also enough, United States v. Rivera-Rodriguez, 318 F.3d 268, 272 (1st Cir. 2003)), and to us the answer is yes."

Seems to me that a well prepared prosecutor can certainly show that this test is met and obtain another conviction. Certainly not a slam dunk, but the evidence is there. If another conviction was obtained, the appellate court would have a tough time showing a clear error of fact to overturn.

DallasNE wrote on March 22, 2007 12:51 PM:

I am a little confused. On the one hand we are told that it was faulty instructions to the jury. On the other hand we are told that the law he was tried under did not apply to this case. So, which is it?

Also, since this was a "slow-walked" case, is there any chance that the US Attorney sandbagged the case looking for this outcome. It doesn't sound like "best effort" was put into the prosecutions case.

atty wrote on March 22, 2007 12:54 PM:

Scribe omitted one other option: seek an en banc hearing of the full First Circuit Court of Appeals. As with certiorari to the Supreme Court, there is no right to en banc review; it's entirely at the discretion of the judges.

Jack McCullough wrote on March 22, 2007 12:55 PM:

First off, I completely agree with the comments about legal technicalities. Even if there were a legitimate use of the term, this isn't it.

I'm taking Josh up on his suggestion that lawyers read and comment on the decision. 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. I think this is a very well founded opinion and it will be hard to get the case back in court and write a jury instruction that will comport with the appellate decision and still leave any room for a jury to convict. Although the court didn't order a dismissal of the charges, they have pretty much wiped out the entire case.

I assume that the harassment statute was used because there was no more appropriate charge. This is clearly a "denial of service" attack, but maybe the law, or the law as it existed at the time, didn't cover denial of service attacks in telecom, just cyberspace.

Jack McCullough wrote on March 22, 2007 12:56 PM:

First off, I completely agree with the comments about legal technicalities. Even if there were a legitimate use of the term, this isn't it.

I'm taking Josh up on his suggestion that lawyers read and comment on the decision. 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. I think this is a very well founded opinion and it will be hard to get the case back in court and write a jury instruction that will comport with the appellate decision and still leave any room for a jury to convict. Although the court didn't order a dismissal of the charges, they have pretty much wiped out the entire case.

I assume that the harassment statute was used because there was no more appropriate charge. This is clearly a "denial of service" attack, but maybe the law, or the law as it existed at the time, didn't cover denial of service attacks in telecom, just cyberspace.

I can just hear the R's crowing about how this proves the guy did nothing wrong (it's right in line with DeLay's "criminalizing politics" line), so people should be prepared to respond with the quotes from the transcript that prove what he was doing.

Gene wrote on March 22, 2007 12:59 PM:

I absolutely agree with the first commenter that the term "getting off on a technicality" should not be used in this context. These technicalities are what protects everyone's constitutional rights in a criminal trial.

The opinion seems well reasoned. The statute seems unclear as to what "harass" means and the court had to analyze legislative history to determine what Congress was trying to accomplish by passing it. Assuming the court's recitation of the legislative history to be accurate, its analysis and conclusions appear sound.

I'd agree that the opinion does make a retrial much more difficult, though not impossible.

Anonymous wrote on March 22, 2007 1:17 PM:

Ooh, I've never commented before, but if the jury instructions are flawed, how did that happen? I'm wondering because of the possibility that the instructions to the jury were intentionally flawed. It's not just me tinfoil hatting, a similar thing may have been done to lead prosecutor Sharon Eubank's summation in USA vs Phillip Morris et al.

HotFlash wrote on March 22, 2007 1:18 PM:

Ooh, I've never commented before, but if the jury instructions are flawed, how did that happen? I'm wondering because of the possibility that the instructions to the jury were intentionally flawed. It's not just me tinfoil hatting, a similar thing may have been done to lead prosecutor Sharon Eubank's summation in USA vs Phillip Morris et al.

HotFlash wrote on March 22, 2007 1:19 PM:

Sorry about that, I was trying to get the link in. It is http://www.tobacco-on-trial.com/2006/08/08/insights-into-usa-v-philip-morris-et-al-from-sharon-eubanks/

JEP (John Edward Patterson) wrote on March 22, 2007 1:20 PM:

Was Rove ever subpoenaed to testify inthis case, and if not, how could all the evidence have been forthcoming?

And why can't Tobin be tried on election fraud statutes, surely he broke at least one law pertaining to election fraud?

nolo wrote on March 22, 2007 1:26 PM:

Jury instructions can end up "flawed" for any number of reasons, none of which involve nefarious conduct on anyone's part. In this case, it sounds like the flaw occurred because the law in this area is not clear. As Gene notes above, the statute under which Tobin was prosecuted is a little ambiguous, and it doesn't look like it's been applied frequently (or even at all) to the act of making repeated phone calls for the purpose of interfering with someone else's ability to contact the same people. Under these circumstances, the prosecutors and the trial judge (who has final say on jury instructions, which limits the ability of the attorneys on any side to get an intentionally defective instruction given to the jury) were kind of on their own with an issue of first impression.

EasyRider wrote on March 22, 2007 1:34 PM:

When will crimes committed against our civil right, basic freedoms, and complete violation of U.S. Constitution be punished to at least the same severity as fast food robber or purse snatcher? People die because some insurer policy is denying healthcare service until the requests stop being asked. These crimes that are committed against us have worst results than the robber. People die due to incompetence in government, terrible laws, social injustice, our national treasury robbed of billions if not trillions of dollars, and all these criminals laugh at us as they go unpunished by a system they have worked years to rig to avoid punishment.

You lawyers best be figuring out how to punish these individuals who are rigging our system against us. If you know how to bring these criminals to justice then do it. Of course that would depend on lawyers defending laws and the proper use of the laws, and not defending criminals first and screw the law.

You guys really need to read up on how Germany and it legal system empowered a fringe social group with the help of American millionaires.

Lawyers here in America really need to step up and be Americans First and not supporters of GOP criminals and the crime against America.

Really!

Have you no shame?

Anonymous wrote on March 22, 2007 1:35 PM:

Bush has been stacking the courts with partisan hacks from the Federalist Society. They can be counted on to rule in favor of GOP. We are going to see many more Bush v Gore partisan rulings.

Fred C. Dobbs wrote on March 22, 2007 1:47 PM:

Fewer lawbooks: more ropes.

mritter4u wrote on March 22, 2007 2:14 PM:

The most common background of elected representatives in most American legislatures is that they are lawyers. Some love America and believe it is firstly for the people and secondly for everything/everyone else. Others reverse the equation. Regardless, non-lawyers have no chance against the type of thinking and learning that comes out of law school.

Voters are not generally capable of outwitting lawyers, nor do they understand how clever lawyers are. I know many and have worked with many.

It defies history, but we need more non-lawyers in office, as this bright class of people dominates the public square. Too much that's important to MOST citizens gets obfuscated, too much gets filtered intro meaninglessness.

The non-lawyer class needs a bigger seat at the pork table, which is essentially what American gov't is about. So, dear lawyers, I love your minds and opinions but how nice it would be too see many of you support spreading the power and wealth of America around. Help equalize the class power structure.

Uncle Don wrote on March 22, 2007 2:15 PM:

I wholeheartedly endorse Steve Laniel's first comment above. Far too many people -- journalists and television news readers -- are quick to claim that a defendant "got off on a technicality" when, in fact, the defendant was denied a right under the Constitution.

Constitutional rights (including the right to due process of law) are not mere technicalities; they are the supreme law of the land and should be recognized as such.

Anonymous wrote on March 22, 2007 2:21 PM:

"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.

rea wrote on March 22, 2007 2:22 PM:

Oops, forgot to put my name on the previous post

rube wrote on March 22, 2007 3:13 PM:

Please explane "intent" and "purpose as it applies to legalese.

bartcopfan wrote on March 22, 2007 3:20 PM:

What EasyRider said.

(My security code was 'push'; I almost typed 'putsch' by "mistake".)

OxyCon wrote on March 22, 2007 4:29 PM:

A Republicon criminal getting away with a crime?
Sacre Bleu!
The "Rule of Law" party sure does get away with breaking the law on a frequent basis.

VENDER wrote on March 22, 2007 5:38 PM:

Hey, that cicuit court bunch is afraid they'll lose their jobs if they don't do a good tapdance. What could one expect after what has been going on with the federal judges who've lost their jobs?

whidbeygrl wrote on March 22, 2007 6:53 PM:

Besides Tobin, DOJ has just now
reduced Abramoffs sentence.....

http://www.guardian.co.uk/worldlatest/story/0,,-6500283,00.html

Almost as good as a pardon. Less obvious.

Jason wrote on March 22, 2007 6:56 PM:

Lou Dobbs gets in the face of Democrats and yells, "Hell yes!"

liberal wrote on March 22, 2007 9:33 PM:

Uncle Don wrote, "I wholeheartedly endorse Steve Laniel's first comment above. Far too many people -- journalists and television news readers -- are quick to claim that a defendant 'got off on a technicality' when, in fact, the defendant was denied a right under the Constitution."

Oliver North certainly did get off on a technicality.

tmb wrote on March 22, 2007 11:39 PM:

I am a lawyer, and having represented many criminal defendants, my opinion these days is that politically connected types like the one at issue here are LIGHT YEARS more likely to get a reversal like this, by the "liberal judge" - -(whatever that means anymore) or whoever is sitting on the bench hoping to remain there for as long as possible (Fed or State level) "judging" and not, God forbid, practicing law (run against a sitting state judge in an election and lose and see what happens to your career . . . ), than an African American Defendant on some b.s. drug case. The judges are always looking to get around the "technicalities" in these drug cases . . . while Judge Silverman (sp?) types are looking all around to find same for Ollie North and other Bush crime family types so well supported criminal convictions by their fellow citizens can be reversed on appeal - - anyone who doesn't see this trend and is in the system is willfully blind . . . after 20 years in the system my opinion agrees with the writer above in regards to "lawyer legislators" generally stinking (Arlen Specter anyone?)and the entire criminal law court system is fully rigged against poor defendants in my opinion. The public defender system (where I have seen it in Florida) is overwhelmed and staffed with many attorneys lacking in experience facing judges whose only interest is in "moving the docket" i.e. plead him guilty or "no contest" and let's get on to the next guilty poor person. Most judges now are ex-prosecutors and act like the second prosecutor in the room when dealing with poor people, but are much more favorable to the politically connected, and any honest attorney who has been out there will tell you the same, but not publicly, in Florida at least, because that's an "ethical violation" of Bar rules, believe it or not, those who know don't have free speech rights to tell . . . the system is a farce, this case shows it, and both Bushes on the Federal level, and Jeb on the state level, have stacked the system with "jurists" who reflect our current AG . . . pathetic. . .

Hector wrote on March 23, 2007 10:41 AM:

"Hey, that cicuit court bunch is afraid they'll lose their jobs if they don't do a good tapdance. What could one expect after what has been going on with the federal judges who've lost their jobs?"

Who are the "federal judges who've lost their jobs"?

And yes, it may well be that people without power are less often the beneficiaries of close readings of statutes and other legal authority. But Steve Laniel is profoundly correct in what he says.

Scott wrote on March 23, 2007 11:48 AM:

It seems likely that Tobin would have given a statement to investigators before he took the fifth. If he did he must have lied - why not go for a perjury, false statement or obstruction charge? It worked for Scooter.
Or was this lengthy investigation so botched no one interviewed Tobin early on before he clammed up?

Red State Blues wrote on March 23, 2007 12:12 PM:

Bravo to the very first commenter on this thread who got it exactly right. When the court of appeals overturns a conviction on the basis of trial court error, that is NOT a freaking technicality. It means that the trial was not proper and therefore the accused party was deprived of his/her consitutional rights. The US Consitution is NEVER a technicality, regardless of whether the person getting off is someone odious, like Tobin.

Betsy Devine wrote on March 23, 2007 12:21 PM:

Great job, Paul--thanks for the link, too--and bravo to Steve Laniel and rea especially for great comments.

There's a follow-up story in today's Concord Monitor:
http://www.cmonitor.com/apps/pbcs.dll/article?AID=/20070322/REPOSITORY/703220368/0/OPINION03

Anonymous wrote on March 24, 2007 12:49 PM:

Here is a post from Daily Kos that is deeply relevant to the discussion here regarding "technicalities" in the law:
***************************************
Executive Branch Secedes from the Union
by Devilstower
Sat Mar 24, 2007 at 08:11:28 AM PDT
Just in case you missed it the first time, Snow repeated himself to make sure the public gets the message: the White House has declared itself, a law unto itself, beholding to no other authority. This goes quite a bit beyond the already massive expansions of "executive privilege" previously claimed by this administration.

Congress has the enumerated authority under the constitution to pass laws, to raise a military, to declare war, and to impeach and remove members of the executive branch. Does the word "oversight" appear? It doesn't, but it's so clearly implied in the powers designated to Congress that there's been really little doubt of this power since 1787. The Supreme Court has agreed with Congress' role in overseeing the White House on any number of occasions. After all, how can Congress have impeachment authority over the executive if any investigation can be stonewalled by an uncooperative administration? The judicial equivalent would be making a defendant the judge at his own trial.

Under the Snow interpretation, the executive could get away with anything. Anything at all. Absolutely anything. Like Tony, I wanted to repeat so you would be sure I meant what I said. A lack of congressional oversight would not just place the White House above the law, but completely beyond it.

Though it may have passed as just another incidence of Snow being trotted forth to distribute the day's right wing talking points, what was said on Friday should not go without notice. This is the single more amazing declaration in an administration that has already produced more extraordinary claims than the fountain at Lourdes.

**********************************************
I agree with the claims made AGAINST Snow in the passage I've just pasted in. In my view it is of the essence of this country's constitutional order that the claims made BY Snow are unsupportable as a matter of law. The claims made AGAINST Snow are "technicalities". Thank god for the technicalities. And thanks again to Steve Laniel and now as well Red State Blues.