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Schurick defense promises appeal

Within minutes of Tuesday’s election-fraud verdicts against political operative Paul E. Schurick, his lead defense attorney vowed to appeal on the grounds that the law is an unconstitutional restraint on free speech.

A. Dwight Pettit said the election law’s use of the word “fraud” is vague, enabling the state to engage in “capricious” prosecutions based on statements made during heated election campaigns.

“You cannot regulate political-content speech,” said Pettit, a Baltimore solo practitioner. “It is unconstitutional. It is a very simple argument.”

But Maryland State Prosecutor Emmet C. Davitt said the state has every right to criminalize deliberate misrepresentations aimed at suppressing the right to vote.

“The First Amendment does not protect fraudulent speech,” said Davitt, who led the prosecution of Schurick.

“The jury’s verdict will send a message,” he added. “This kind of behavior will not be tolerated.”

The jury in Baltimore City Circuit Court convicted Schurick of conspiring and attempting to sabotage Democratic Gov. Martin O’Malley’s re-election last fall with Election Day 2010 robocalls telling Democrats in the city and Prince George’s County that victory was at hand and they did not have to go to the polls.

Schurick, who was campaign manager for Republican candidate and former Gov. Robert L. Ehrlich Jr., faces up to 12 years in prison on the four counts, including “attempting to influence a voter’s decision whether to go to the polls to cast a vote through the use of fraud;” of sending robocalls without an “authority line” to inform voters the calls were made at the Ehrlich campaign’s behest; and of conspiring with political consultant Julius Henson to accomplish both goals.

Before and during the trial, Judge Lawrence P. Fletcher-Hill had dismissed, at the defense’s request, charges that Schurick had conspired to violate Maryland’s election law generally and had withheld documentation sought by a grand jury subpoena.

The jury got the case Monday afternoon after a six-day trial. The verdict came back around 11:30 Tuesday morning.

During deliberations, jurors twice asked Fletcher-Hill about aspects of the conspiracy counts. They returned with the verdict shortly after the judge’s response to their second note, asking whether a conspiracy could be based on a spur-of-the-moment agreement.

Fletcher-Hill set sentencing for Feb. 16 in Baltimore City Circuit Court.

No distinction

Election-law professor Larry S. Gibson called the effort to suppress votes “morally reprehensible” and predicted Pettit’s argument will have an uphill battle on appeal.

“Fraud as a general matter means a misrepresentation of fact [or] to make a false statement,” said Gibson, who teaches at the University of Maryland Frances King Carey School of Law. “They’re going to have to argue that there’s a First Amendment right to make a false statement.”

However, Gibson did voice concern with another aspect of the law, since it does not distinguish between intentional voter suppression and statements aimed at getting out the vote. Both are criminalized if the intent is “to influence a voter’s decision whether to go to the polls.”

The statute could have the “unintended consequence” of criminalizing a get-out-the-vote drive that a prosecutor believes intentionally misrepresented the opposing candidate’s positions or life story, said Gibson,

“If you can prosecute people for urging people not to vote, then under the wording of the statute, you can prosecute organizations who make allegedly false statements to urge people to vote,” he said. “I don’t trust every prosecutor to be well intentioned.”

During the seven-day trial, Davitt told the jury Schurick authorized the calls to suppress the Democratic vote in general and the black Democratic vote in particular.

As Election Day approached, Schurick was deeply concerned that the overwhelmingly Democratic black vote would control the election and that the Ehrlich campaign was unable to gain the support of more than 7 percent of black voters.

Faced with this bitter reality, Schurick concluded in the late afternoon of Election Day that suppressing the vote would be more effective than trying to garner more black support, Davitt said.

When Henson suggested using the robocalls, Schurick gave his approval, Davitt said.

Schurick did not deny authorizing the call, but said it was intended to motivate Ehrlich’s black supporters to get to the polls. LLC, a Pennsylvania company that provides telephone broadcasting services, was told to send out the pre-recorded message to a specified list of 112,544 registered Democrats in Baltimore and Prince George’s County before the polls closed.

“Hello. I’m calling to let everyone know that Gov. O’Malley and President Obama have been successful,” the message stated. “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 scheduled to go on trial on similar charges Feb. 6, also in Baltimore City Circuit Court.

Henson’s attorney, Edward Smith Jr., said Tuesday that he learned nothing from the Schurick case that will help him defend Henson, 62. Smith, however, did say he is grateful “not to have the same jury.”

“I have no idea what’s going to happen,” added Smith, a Baltimore solo practitioner. “You’ve got to just handle one case at a time.”

One comment

  1. “You cannot regulate political-content speech,” said Pettit. “It is unconstitutional. It is a very simple argument.”

    Dwight’s description of his argument has it almost right. He left out just one word (“minded”). I hope Shurick gets non-profit rates for the appeal.