Jurors will also be asked whether they have ever participated in a political campaign and if they believe their party affiliation would prevent them from judging the defendant in a fair and impartial manner once the trial begins.

It was unclear however whether the trial will proceed tomorrow with voir dire (impanelment of the jury) as scheduled because one of the expected witnesses is ill, as reported in an email to Voice of Baltimore by veteran court watcher Stephen J. Gewirtz late Tuesday.

Earlier in the day Baltimore City Circuit Court Judge Emanuel Brown rejected arguments by Henson defense attorney Edward Smith Jr. that the “robocalls,” or automated telephone messages, that went out under Henson’s direction on Election Day 2010 were protected by the 1st Amendment to the U.S. Constitution and were in fact “free speech.”

Asserting that political operatives like Henson have a right to tell voters “not to go to the polls” even if “they’re wrong… [and] it’s a lie,” Smith argued that the defendant’s activities on behalf of former Gov. Robert L. Ehrlich Jr. were not illegal.

FAILED TO IDENTIFY CAMPAIGN

The defense acknowledges the facts of the case but disputes their alleged illegality. Among the various counts, Henson is charged with failure to identify automated telephone calls to voters in predominantly black areas of Baltimore City and Prince George’s County as being paid for by the campaign of Ehrlich for Governor.

The calls — which began at 6 p.m. on Nov. 2, 2010, two hours before polls closed — incorrectly informed voters that the election was over, that incumbent Democratic Gov. Martin O’Malley and President Barack Obama no longer needed their support in order for O’Malley to be reelected and to overturn the Republican Ehrlich’s challenge, and that they could safely stay home and not vote.

President Obama was not on the ballot in 2010.

“Our goals have been met,” the robocall declared. “The polls are correct, and we took it back. We’re OK. Relax. Everything’s fine. The only thing left is to watch it on TV tonight.”

GROUNDS FOR AN APPEAL

Henson’s attorney made no secret of the fact his repeated argument relative to the constitutionality of the charges was aimed at creating grounds for an appeal in the event his client is convicted.

Terming it a “highfalutin argument” for a state court to consider, Smith expressed disdain for common citizens who, he said, by allowing themselves to be deceived, are personally responsible for the success of the deception, that they have in effect made “a choice… to be stupid.”

The verdict will likely be appealed if Henson, 62, is convicted.

The judge threw out one of the conspiracy charges, declaring it “redundant,” leaving the defendant to face two counts of conspiracy to violate election laws and a single count each of election fraud and failure to include a line acknowledging Ehrlich campaign authority for the robocalls.

Prosecution of the case is being conducted by the Office of the Maryland State Prosecutor, not by the City State’s Attorney, as is normal in cases involving allegations of election fraud and political misconduct.

In early December, Ehrlich Campaign Manager Paul Schurick was found guilty on four counts relating to the illegal robocalls and faces a maximum 12 years in prison at his sentencing scheduled for next week.

ROBOCALL MESSAGE ‘PLAINLY FRAUDULENT’

Like Smith, Schurick’s defense team asked Judge Lawrence P. Fletcher-Hill to dismiss the charges on the basis of free speech. However, like Brown, Fletcher-Hill declined to do so, terming the robocalls’ message “plainly fraudulent.”

Henson had originally been scheduled to be tried in advance of Schurick, in November; however his trial was postponed when the only judge available to hear the case recused himself because he had been appointed to the Circuit Court by O’Malley.

Henson, who had previously worked almost exclusively for Democrats, served as a “consultant” to the Ehrlich campaign and was paid just over $1 per voter contacted — for a total of $112,000. He has insisted the calls were not meant to suppress the African-American vote and that he does not believe the phone messages were illegal.

The botched attempt to prevent voters from casting ballots for O’Malley apparently had little or no effect on the outcome of the election, in which the incumbent went on to defeat ex-Gov. Ehrlich by a wide margin.
 
alforman@voiceofbaltimore.org