Betsy Devine: Funny ha-ha and/or funny peculiar

Tobin’s appeal was already in process when I arrived this morning at Boston’s US Court of Appeals. A subset of the usual small crowd was there–no reporters, so far as I could tell, so let me be the first to tell you that Chief Judge Michael Boudin (Harvard Law, class of 1964) seems completely in tune with the arguments of James Tobin’s attorney John G. Kester (Harvard Law, class of 1963). In his summation, Kester (former president of the Harvard Law Review, Law Clerk to Supreme Court Justice Hugo L. Black, 1963-1965) addressed Boudin (former president, Harvard Law Review, Law Clerk to Supreme Court Justice John Harlan, 1965-1966) in a tone of utmost relaxed collegiality. Kester boiled down all the multiple pages of documents supplied by his younger helots at Williams and Connelly, into three points. Tellingly, every one of Kester’s very different three points seemed to meet with approval from Judge Boudin:

1. Tobin never entered any agreement with McGee or Raymond. Criminality doesn’t extend to “but for” causation. If it did, every criminal’s mother would be in the dock.
2. This same panel of appeals court judges (Boudin, Torruela, and Lynch) set a precedent in the appeal of Garcia-Torrés which must be followed now.
3. The government decided that the 2002 phone-jamming was bad and unsavory–“We might agree”, added Kester. But there was no statute against it. The government “concocted” a case from a statute made to prevent quite different behavior.

It took Kester all of three minutes to make his three points–then he sat down. He could afford to relax because Judge Boudin had been very excitably haranguing US Attorney Andrew Levchuk with the defense’s own points when I got to the courtroom.

“You have taken advantage of the vagueness of the statute,” Boudin proclaimed. One key defense contention throughout the case has been that the law against telephone “harassment” should not be construed using the plain dictionary meaning of harassment. They claim the law is either so specific that it forbids only calls made for a few specific motives or else so vague that nobody could guess that jamming phone lines is harassment.

Levchuk pointed out, with considerable tact, that he’d submitted documentation of many examples and precedents for the plain commonsense interpretation of “harassment” by other courts with regard to the statute. This statement met no approval from Judge Boudin. “You’re taking almost as extreme a broad view as the narrow view that you claim the defense is taking,” he reproached Levchuk. “Well, thank you, Mr. Levchuk, your appearance here has been very helpful.”

Well, I’m waiting to hear what the three-judge panel decides, although Torruella and Lynch had very little to say at this morning’s hearing.

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Caveat–I am not an official court stenographer, just somebody trying to reconstruct lots of court action from the few notes I scribbled down into my notebook. According to the Appeals Court Clerk, nobody transcribes these court sessions–but a tape is available for $26.

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