Jury selection is expected to begin Wednesday in the election fraud case against veteran political consultant Julius Henson after a Baltimore judge rejected a defense request to throw out the charges.
Baltimore Circuit Judge Emanuel Brown ruled Tuesday that the laws Henson is accused of breaking — stemming from misleading "robocalls" on Election Day 2010 — are constitutional.
Brown did dismiss one of the three conspiracy charges against Henson, saying it was redundant. Henson still faces two counts of conspiracy to violate election laws, one count of election fraud and one count of failing to include a campaign authority line on the call.
Henson, 62, is accused of using false information in an effort to suppress the black vote through an automated call which told voters in Baltimore and Prince George's County to "relax" and stay home. The call implied that Gov. Martin O'Malley, a Democrat, had won his race against former Gov. Robert L. Ehrlich Jr., a Republican. Deputy State Prosecutor Thomas "Mike" McDonough called the attempt to mislead voters "reprehensible."
Defense lawyer Edward Smith Jr. told the court he did not dispute the basic facts in the prosecutors' case against his client, but argued that the call was protected free speech.
"They have a right to tell them not to go to the polls, even if they're wrong, even if it's a lie," Smith argued, adding that people who fall for such deception are the responsible parties. "There is a choice that you make to be stupid."
Smith indicated several times that he was making his point in part to create a record on which to appeal the case should his client be found guilty at trial.
"I know this is a highfalutin' argument for the state court system," he said.
Brown also rejected an attempt by Smith to gain access to the state prosecutor's investigative files concerning a probe into a 2010 robocall attacking a candidate in an election for Washington County commissioner. Smith said he wanted to show jurors that the state prosecutor's office had declined to bring charges in other investigations into robocalls.
"This is a confidential file that is totally irrelevant to this case," Maryland State Prosecutor Emmet C. Davitt countered. "Our office gets literally hundreds of complaints. ... I determined this case did not merit prosecution."
Henson was working as a consultant to Ehrlich's campaign when the robocalls were made. Ehrlich's campaign manager, Paul Schurick, was convicted in December of four counts in connection with the call. Schurick, who faces 12 years in prison, is scheduled to be sentenced next week.
Schurick's defense team also tried to have his case dismissed on free-speech grounds. The judge in Schurick's trial, Lawrence P. Fletcher-Hill, declined to do so, characterizing the call's message as "plainly fraudulent."
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