The trial of a political operative accused of trying to sabotage Gov. Martin O’Malley’s re-election with robocalls was postponed until Feb. 6 after the judge assigned to hear the case recused himself Tuesday because O’Malley had appointed him to the bench.
Judge Charles J. Peters’ recusal, just minutes after the case was assigned to him, prompted Julius Henson’s defense attorney and the state prosecutor to return to the assignment judge in Baltimore City Circuit Court.
Assignment Judge Wanda K. Heard alluded to the ongoing difficulty of finding an available judge who was appointed by neither O’Malley nor his re-election opponent, former Gov. Robert L. Ehrlich Jr., for whom Henson was working. (Ehrlich has not been indicted.)
However, both Heard and Maryland State Prosecutor Emmet C. Davitt, who brought the criminal cases, said that a retired judge or one from a Maryland county could be specially assigned to hear the case, if necessary.
Henson, 62, a political consultant to Ehrlich during the 2010 campaign, is charged with violating state law by coordinating Election Day telephone calls allegedly intended to suppress Democratic voter turnout in Baltimore and Prince George’s County last year. He faces a maximum sentence of 21 years in prison.
Edward Smith Jr., Henson’s attorney, predicted another judge would agree to preside over the case in February. Smith, a Baltimore solo practitioner, said he respected Peters’ conclusion that it would present a conflict of interest for him to preside over Henson’s trial.
“That is a call only for the judge,” Smith said of Peters’ recusal. “Another judge may feel they can hear the case and not be prejudiced.”
Paul E. Schurick, 55, a former communications director and campaign aide to Ehrlich, was indicted with Henson in June on similar charges plus an obstruction offense and faces up to 26 years in prison. Schurick’s trial is scheduled for Nov. 28, but his attorney said he would not be surprised if it is postponed until a judge without ties to O’Malley or Ehrlich is assigned.
“I do anticipate we’ll have the same problem,” said A. Dwight Pettit, a Baltimore solo practitioner. “It’s a good possibility.”
However, Pettit said he must presume the trial will begin on schedule.
“I’ve got to get ready for the 28th,” he said.
Maryland ethics rules require judges to step aside when they have a financial interest in the case, not because the litigation concerns the governor who appointed them, said Abe Dash, who teaches judicial ethics at the University of Maryland Francis King Carey School of Law.
Even so, “I can understand their concern with the appearance of impropriety,” Dash said.
“From the outside world, you’re going to have constantly that sort of thing …,” he added; and with every step, the judge “is going to be known as ‘the O’Malley appointee’ or ‘the Ehrlich appointee.’”
According to the indictment, Henson and Schurick hatched a scheme under which automated calls were made to 112,544 registered Democrats in Baltimore and Prince George’s County before the polls closed on Election Day 2010, telling them to “relax” because the Democrats had “been successful.”
The two men retained Robodial.org LLC, a Pennsylvania company that provides telephone broadcasting services, to send out the pre-recorded message that said, “Hello. I’m calling to let everyone know that Governor O’Malley and President Obama have been successful. Our goals have been met. The polls were correct and we took it back. We’re OK. Relax. Everything is fine. The only thing left is to watch it on TV tonight. Congratulations and thank you.”
Henson is a longtime political strategist more commonly associated with Democratic candidates, including former Lt. Gov. Kathleen Kennedy Townsend, who lost a gubernatorial race to Ehrlich in 2002, and U.S. Rep. Elijah E. Cummings, who won in 1996 with Henson’s help. Henson has said the robocalls were intended to spur Republicans to go to the polls.
While awaiting a judge, Smith is readying two motions to dismiss the indictment against Henson.
One challenges Maryland’s election law as a “vague, overbroad and unconstitutional” infringement on the right to free speech during a political campaign.
Davitt, the state prosecutor, responded that “the First Amendment protects political speech but not fraudulent speech and we think the case law will back us up on that.”
Smith’s other motion argues that the grand-jury indictment is defective, as it cites a statute that bans racial discrimination while the text accuses Henson of illegally suppressing voter turnout.
Smith said the burden rests with the prosecution to draft a clear indictment.
“A grand jury will indict a ham sandwich if the prosecution puts it in front of them,” Smith said.
But Davitt said “the state doesn’t have any concern” about Smith’s motion to dismiss.
The indictment alleges voter suppression but also states that Henson and Schurick specifically sought to target black voters.
“The language in the indictment is appropriate,” Davitt said.