Political consultant Julius Henson may have written the automated message that encouraged Democrats to stay home from the polls on Election Day 2010, but he didn't force voters to believe it, jury foreman Renee Johnson said Friday, explaining the split verdict in his case.
"We, as a people, because we live in a democratic society, we have the choice of believing or not to believe. You choose to believe it, it's on you," said Johnson of East Baltimore, adding that tactics intended to influence voters are nothing new for political operatives such as Henson.
Jurors acquitted Henson on three of the four charges he faced in connection with the "robocall," made on behalf of Republican former Gov. Robert L. Ehrlich Jr.'s campaign about two hours before the polls closed.
Henson was found guilty of a single conspiracy count, for failing to include a campaign authority line in the call. He will be sentenced June 13 and could face a year in prison and a $1,000 fine.
Henson, 63, who wore a three-piece suit with his trademark salt-and-pepper dreadlocks pulled back Friday, dismissed the significance of including a line to note that the robocall was authorized by the Ehrlich campaign.
"Fifty percent of campaign materials don't have an authority line; it's sort of similar to spitting on the sidewalk, jaywalking," said Henson. "It's not enforced."
Henson's lawyer, Edward Smith Jr., said he will seek a retrial on the conviction. Henson had also faced two counts of conspiracy to influence voters' decisions to cast ballots and another count of distributing the message without including an authority line; convictions on all counts could have led to a 12-year sentence.
Henson, a part of Maryland's political landscape for decades, said he will lose millions of dollars in business for the 2012 election cycle, adding that most campaigns are already committed to other consultants. He said that he was targeted by the prosecution because of his efforts to elect "ordinary people" to office and that the trial was intended to "stop a guy from making money."
He was paid $112,000 by Ehrlich's campaign and had been promised a $30,000 bonus if Ehrlich had beaten Gov. Martin O'Malley, who was seeking re-election. O'Malley won handily.
State Prosecutor Emmet C. Davitt, who argued the case before Judge Emanuel Brown during the two-week trial, said he was pleased that the jury found Henson guilty on one count but wished they would have gone further. Davitt said he hopes the case sends a message.
"The election laws are there to protect the right to vote and the integrity of the system," he said. "Violations are not going to be tolerated."
Prosecutors argued that the robocall was intended to give black voters the impression that O'Malley had already defeated Ehrlich and that they had no need to head to the polls.
Henson said the call was intended to do just the opposite: prompt those voters to cast a ballot for Ehrlich. He argued that the call used reverse psychology.
The call, which went out to 112,000 households, told voters that O'Malley and President Barack Obama had been successful. Obama wasn't on the ballot that year.
"Our goals have been met," the message said. "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."
Ehrlich has said he did not know about the call. An attempt to reach him Friday was unsuccessful.
Johnson said the jury found Henson guilty on only one charge relating to the authority line, because Henson wasn't the one who actually put out the call. Henson testified that he was at a McDonald's when he wrote the brief message on a napkin and called his associate Rhonda Russell to record and place the robocall.
"He knows you can't do anything without an authority line; he did over 100 elections," said Johnson, who led the jury's deliberations for 10 hours over three days.
Henson's trial followed that of Paul Schurick, Ehrlich's campaign manager. Henson testified that Schurick instructed him to produce the call, which was made to Democrats in Baltimore and Prince George's County. Henson also said Schurick approved the call's wording and told him to exclude the authority line.
Schurick had also argued at his own trial that the call was intended to encourage voters in the two historically Democratic strongholds to vote for Ehrlich.
In December, Schurick was convicted of four charges related to election fraud. He was sentenced to 30 days of home detention and 500 hours of community service. He is expected to remain on probation for four years.
Schurick's lawyer, A. Dwight Pettit, said Friday that the Henson verdict may provide an opportunity for a court to dismiss Schurick's conviction. Schurick had been found guilty on conspiracy charges, but with Henson being acquitted of most charges, Pettit said the verdict disproves any collusion to break the law.
"If only one person is convicted, I don't think you have an conspiracy," Pettit said. He has already asked the Baltimore City Circuit Court to reconsider Schurick's sentence, and asked the Court of Special Appeals to intervene.
Shaun Dakin, founder of the National Political Do Not Contact Registry, StopPoliticalCalls.org, said robocalls such as the one Henson wrote for Ehrlich happen in almost every election cycle throughout the country. Some states, including Indiana, Wyoming, New Jersey and California, ban all robocalls; but fewer enforce the laws. Maryland does not ban political robocalls.
Federal law exempts all political calls from the National Do Not Call Registry. Dakin's nonpartisan nonprofit is pushing for Congress to allow Americans to opt out of political calls, just as they can for consumer calls. So far, more than 400,000 people have signed up for the registry.
The Pew Research Center reported that 69 percent of voters received a robocall during the 2010 election cycle, a percentage that grew steadily during the final weeks of campaigning.
Dakin said it is common for robocalls — whether they are banned in a state or cross the line into fraud — to elicit calls for prosecution during an election. But typically such efforts are abandoned after the polls close. So, Henson's comparison to jaywalking is fair, Dakin said.
"People have very short memories," Dakin said. "The minute an election is over … everyone wants to move on."
Dakin doesn't think the prosecutions of Henson and Schurick will do much to change the practice nationwide.
"I think political consultants are paying attention," Dakin said. "They will obviously pay attention in Maryland. I don't think, however, in the rest of the country this will really mean much."
Lester Spence, a Johns Hopkins University assistant professor of political science, said he considers Henson's 2010 robocall to be "deeply, deeply racist and deeply undemocratic." Spence said the convictions are meaningful, because prosecuting Henson shows such acts are inappropriate.
"While some probably will question why he wasn't found guilty of more charges, I will take whatever we can get," Spence said.
Spence said those who engage in campaign "dirty tricks" aren't "thinking in larger democratic terms, they're thinking, 'What can I do to shave off a tenth of a percent of the other guy's turnout?' What they're really doing is corrupting democracy. They're corrupting a system that many people already think — with good reason — is corrupt."
Baltimore Sun reporter Luke Broadwater contributed to this article.
ter contributed to this article.