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James Tobin’s defense attorney often interrupted the US Attorney with the objection that a question was “leading.” To quote an online legal resource, “A leading question suggests the answer one expects to hear; “You were at the victim’s home that night, weren’t you?”. The lawyer should not be doing the testifying.” |
Chuck McGee was a witness hostile to the US Attorney and friendly to James Tobin. In order to give jurors the impression that James Tobin had not heard anything about blocking rides to the polls, his lawyer asked one leading question after another–without a single objection from the US Attorney.* Here’s what went on December 7, the second day of James Tobin’s trial:
Q. [Dane Butswinkas, Tobin’s defense attorney] You never discussed
24 Rides-to-the-Polls Program with Jim Tobin, did you?
25 A. [Chuck McGee No.[page] 11
1 Q. At the time you spoke with him, you didn’t
2 intend to prevent people from getting rides to the
3 polls, did you?
4 A. No.
…
12 Q. And you didn’t enter into any agreement with
13 Jim to injure voters by stopping them from getting rides
14 to the polls, did you?
15 A. I was just asking for the name of a vendor.
16 Q. That was never a subject of any conversation
17 you had with Jim Tobin, was it?
18 A. Which part, sir?
19 Q. The idea of stopping people from getting rides
20 to the polls on Election Day.
21 A. Absolutely not.
I’m sure that even a non-lawyer can see quite a few places where defense counsel was leading the very willing witness–with not one objection from the supposedly-prosecuting US Attorney. As a direct result of this testimony, the jury later acquitted James Tobin on the most serious–and the most appropriate–charge against him, conspiracy against the rights of voters.
And yet contrast McGee’s response to that series of leading questions to his response to the US Attorney when questioned the previous day, December 6:
[page 83]
1 Q. [US Attorney Andrew Levchuk] Did there come a point when you received
2 something in the mail about get-out-the-vote plans for
3 the other side, for the democrats?
4 A. [Chuck McGee] To my surprise I received a mailing at my home
5 urging us to go out and vote for democratic candidates
6 on Election Day. My wife and I are both registered
7 republicans.
8 Q. And what specific — and I understand it’s
9 been some time. What do you recall about what was in
10 that flyer?
11 A. Had some photos and talked about issues. I
12 think it had a phone number if you wanted a ride on
13 Election Day.
14 Q. Ride to the polls?
15 A. I believe so.
16 Q. You see this. Do you get an idea from it?
17 A. I got the — it reminded me that obviously the
18 other side, the democratic party, was going to have
19 their own get-out-the-vote efforts on Election Day, and
20 I thought — I paused and thought to myself, I might
21 find out — I might think of an idea of disrupting those
22 operations.
23 Q. And by disrupting, what do you mean?
24 A. Well, eventually the idea coalesced into
25 disrupting their phone lines on Election Day.84
1 Q. Fair to say that idea was given to you because
2 there was a get-out-the-vote phone number in that flyer
3 that you received; correct?
4 A. That was the impetus.
If McGee and Tobin weren’t blocking ride-to-the-polls lines, why would they even bother to block any phones? In 2002, political operatives all carried cellphones, even if many normal people still didn’t. You couldn’t, wouldn’t disrupt the ability of Democrats to talk to each other by jamming 6 landlines. Nobody would be so stupid as to attempt it.
It would have been nice if the US Attorney had thought to make this point.
You can buy a full set of trial transcripts from the US District Court in Concord, NH. I’d encourage some journalists to make that investment.
* I apologize for my criticism of the US Attorney’s failure to object. My sister Marie, who (unlike me) is an attorney, read through the trial transcript and corrects the above as follows:
The leading question issue is, as you have stated, based on the principle that the witness should testify–not the lawyer.
The general rule on asking leading questions is that the attorney is prohibited from asking them on the direct examination of his own witness and the opposing attorney is free to ask them on cross-examination. An exception exists, where the witness has been found by the court to be an “adverse”or “hostile” witness. In that case, the court may allow leading questions on direct.
That was what happened in the Tobin trial when McGee testified. Judge McAuliffe found that McGee was, in fact, adverse to the Prosecution, and so he allowed the Prosecutor some latitude in questioning him.
On cross-examination, the defense (Tobin’s lawyers) asked obvious and damaging (to the prosecution) leading questions — questions that were, as you’ve pointed out, in direct contradiction of his testimony on direct. McGee jumped on them like he was jumping on a life raft. Actually, it was rather amusing to read: here is this guy who plead guilty to the phone jamming saying “Oh no, I never discussed with Jim my plan to jam the ride to the polls number.” Yeah, right!
The Prosecution did not object to any of the questions. They could have argued that since McGee was a witness “hostile” to the Prosecution and friendly to the defense, leading questions on cross-examination were improper in this case–but they never tried.