Despite the same prosecutors, the same set of facts and the same defense — each defendant blaming each other — two separate city juries have handed down wildly varying verdicts over a series of automated calls made to Democrat voters in 2010.
A Baltimore jury on Friday convicted political consultant Julius Henson of one count of conspiracy for his part in the Election Day calls that urged voters in Baltimore and Prince George’s County to stay home and watch the results on television.
Henson faces sentencing on June 13 that could land him a maximum of one year in jail or a $1,000 fine. His lawyer has said he intends to move for a new trial.
After the verdict, though, Henson said he was “grateful and thankful” for the thousands of prayers and well-wishes his supporters had given him leading up to the trial.
“This could have turned out similarly to Paul Schurick’s trial,” Henson said, referring to his indicted co-conspirator.
Henson was a consultant for the campaign of former Gov. Robert L. Ehrlich Jr., a Republican, who was running against incumbent Gov. Martin O’Malley. Schurick, Ehrlich’s campaign manager in 2010, was found guilty in a matter of hours on all four counts after his trial in Baltimore City Circuit Court in November. He was sentenced to 30 days home detention, four years of probation and 500 hours of community service.
Henson, 63, who is black, and Schurick, 62, who is white, each faced two counts of conspiracy to violate election laws, one count of election fraud and one count of violating the authority line requirement for their parts in causing automated “robocalls” to Democrat voters on Election Day 2010.
“In a perfect world, you have the same facts and you get the same result, but that’s not the case,” said University of Baltimore School of Law professor and practicing attorney Byron L. Warnken. “Race, though, is a huge issue in the criminal justice system.”
The jury in the Henson case was made up of seven women and five men, 10 of them black. At Schurick’s trial, the jury consisted of eight women and four men; seven were black and five white.
“I wouldn’t expect there to be, based on the merits of the case, a different outcome,” said Irwin R. Kramer, managing attorney at Kramer & Connolly. “But, in terms of the demographics of the defendants there was a difference. It was evident looking at his closing argument that Henson’s attorney was trying to play to a majority African-American jury, and you can’t blame him.”
In his closing argument Wednesday, defense lawyer Edward Smith Jr. compared the state prosecutor’s actions to those of prosecutors in pre-Civil War Maryland who sent fugitive slaves back to their owners.
“They would send the folks right on back to the plantation,” Smith told the jury.
Both Warnken and Kramer, another criminal-law veteran, had followed the case but were not affiliated with it, and the varying outcomes did not come as a surprise to either of them.
Both said that Smith, Henson’s attorney, played to the strengths he had, with his client in front of a majority black jury and the facts of the case seemingly more on the side of the prosecution.
Smith argued prosecutors didn’t know what they were talking about and that his client was targeted for political payback since Henson had worked mainly with Democratic candidates before working with the Ehrlich campaign in 2010.
He also said he left off the authority line, identifying who paid for the robocalls, at Schurick’s instruction.
“It seems to me that the facts were in favor of the government,” Warnken said. “When that is so, and you want to run away from the facts, you have to certainly, or subtly, play the cards you have,” Warnken said. “This can be, like in this case the SODI, or Some Other Guy Did It, defense or the race card.”
Prosecutors alleged that Henson was a savvy political operator who wanted to win at any cost, and had mapped out a political playbook that included a focus on suppressing the black vote in Baltimore and Prince George’s County. Prosecutors also had a tape and transcript of the call that undisputedly lacked the required authority line.
“As a criminal defense attorney you play to juror bias, you play to the demographics and anything you can to get an acquittal,” Kramer said. “And, to a large part it succeeded here.”
“When the law is against you, argue the facts and when the facts are against you, argue the law,” said Kramer. “And, as I believe it was here, when both the law and the facts are against you — just argue.”