Lawyer in Md. robocall trial: Dirty politics is free speech

An attorney for a political operative charged with trying to suppress black voter turnout during Maryland’s 2010 gubernatorial contest argued unsuccessfully Tuesday that there should be no limits on political trickery to affect elections.

There are “a whole lot of scoundrels out there” who try to influence election outcomes, and their political speech should be safeguarded, said Edward Smith Jr., the attorney for Julius Henson, the second defendant to be tried in connection with robocalls placed by the campaign of former governor Robert L. Ehrlich Jr. (R).

With the polls still open on Election Day, the calls told tens of thousands of voters in the mostly African American jurisdictions of Baltimore and Prince George’s County to “relax” because Democratic incumbent Gov. Martin O’Malley had been successful.

On Tuesday, Smith argued that the state law at the heart of the case that forbids “fraud” in elections is unconstitutional.

“Even if they’re wrong, even if they’re liars, even if they say the most ridiculous, outlandish things to get people to stay home from the polls, they have a right to do that,” Smith said.

Baltimore City Circuit Court Judge Emanuel Brown disagreed.

He denied Smith’s motion to dismiss after Thomas “Mike” McDonough, the deputy state prosecutor, countered that “the absence of fraud” separates “distasteful” politics from criminal efforts to influence an election.

One jury has already sided with elements of that argument.

Ehrlich’s campaign manager, Paul E. Schurick, was convicted in December of four counts stemming from the automated calls, which he acknowledged that he authorized.

Schurick’s sentencing is scheduled for next week.

Henson, a campaign consultant who answered to Schurick, allegedly designed the call.

As a judge did in the Schurick trial, Brown on Tuesday dismissed one of the five charges facing Henson, saying it duplicated the others.

Henson still faces two counts of conspiring to violate election laws, one count of using fraud to influence people’s decision to vote, and one count of not including an “authority line” in the robocall to let people know it was paid for by the Ehrlich campaign.

Two of the charges carry a maximum prison sentence of five years, and the other two each carry a maximum sentence of one year.

The first order of business Wednesday will be a hearing to determine whether certain evidence against Henson can be suppressed. Jury selection could begin in the afternoon, State Prosecutor Emmet C. Davitt said.