Henson’s robocall conviction affirmed on appeal

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An appellate court has upheld the conviction of political consultant Julius Henson for his role in sending misleading robocalls to registered Democrats in Prince George’s County and the city of Baltimore before the polls closed on Election Day 2010.

The Court of Special Appeals also upheld the legality of Henson’s sentence, part of which forbade the longtime political operative from participating in politics while he is on probation.

The conviction stemmed from Henson’s efforts to help former Gov. Robert L. Ehrlich Jr. regain the statehouse. However, the calls — in which an African-American woman declared victory for the Democrats and told more than 100,000 potential voters they could “relax” and watch TV — failed to mention that the Republican candidate’s campaign was footing the bill.

The case“presents us with a sad tale,” Judge Albert J. Matricciani Jr. wrote for the appellate panel.

“[Henson] and his collaborators callously attempted to manipulate members of the electorate in an effort to dissuade predominately African-American voters from exercising their constitutional right to vote in a gubernatorial election,” Matricciani wrote.

Henson was found guilty on one charge of conspiring to violate the Maryland Election Law Article by distributing material without an authority line disclosing the name of the responsible campaign finance entity and treasurer.

On appeal, Henson argued that the jury had rendered an inconsistent verdict by convicting him on that count while acquitting him on three others, which relied in part on the same omission.

The appeals court rejected that argument, as well as Henson’s argument that the law was unconstitutionally vague as applied to him and that the trial judge erred in instructing the jury.

In addition, the court upheld the trial judge’s refusal to allow Henson’s experts to testify that, in their opinions, the robocalls, their content and the lack of authority line were not Henson’s responsibility.

In short, Matricciani wrote that the current appeal presented no grounds to reverse Henson’s May 2012 conviction or sentence, and said the robocall “not only misrepresented the course of the election, it also failed to disclose the source of funds used to create and broadcast the message.”

The opinion, dated Thursday, was posted to the court’s website on Friday.

Maryland State Prosecutor Emmet C. Davitt said Monday it has “always been our position that Mr. Henson had a fair trial and was fairly sentenced.”

Edward Smith Jr., a Baltimore solo practitioner who represented Henson at trial and on appeal, did not return a call seeking comment Monday.

At sentencing, Henson was given one year in prison with all but 60 days suspended. He served about one month before being released in July 2012.

Henson, who compared the authority-line violation to a jaywalking after his conviction, was also given three years’ probation on the condition that he refrain from “working in any capacity in election campaigns, whether it’s in a voluntary status or paid.”

“It is clear to this court that you are oblivious of the magnitude of the crime you are convicted of,” Baltimore City Circuit Judge Emanuel Brown told Henson at sentencing. “You’ve used your creative talents in a way that undermines the electoral process and disrespects the law.”

Brown said it was Henson’s job to know to include an authority line at the end of a political message.

“You disregarded your role as a paid professional consultant,” he said. “You were the expert. You disregarded your responsibility to the client, yourself, your company, your employee. You disregarded your responsibility as a citizen and disregarded your responsibility to the citizens.”

In a separate civil case, a federal judge last year ordered Henson and his company, Universal Elections, to pay $1 million to the state for sending the recorded phone calls to more than 112,000 registered Democrats.

Paul E. Schurick, Ehrlich’s campaign manager, faced the same charges Henson had: two counts of conspiracy to violate election laws, one count of election fraud and one count of violating the authority line requirement.

Schurick was found guilty on all counts and sentenced to 30 days of home detention, a one-year suspended jail sentence and 500 hours of community service last year.

MATRICCIANI

WHAT THE COURT HELD

Case:

Julius Henson v. State of Maryland, CSA No. 1046, Sept. Term 2012. Reported. Opinion by Matricciani, J. Argued May 8, 2013. Filed May 30, 2013.

Issues:

Was the application of the election law unconstitutionally vague? Was the guilty verdict inconsistent? Was the jury instruction clearly erroneous? Did the trial court err when it refused to allow expert testimony that adding an authority line was the responsibility of the campaign and not its consultant? And was it illegal to include, as part of a condition of probation, a ban against ‘working in any capacity in election campaigns’?

Holding:

No to all of the issues. The defendant and his collaborators callously attempted to manipulate members of the electorate in an effort to dissuade predominately African-American voters from exercising their constitutional right to vote in a gubernatorial election.

Counsel:

Edward Smith Jr. for appellant; Emmett C. Davitt for appellee.

RecordFax #13-0531-01 (17 pages).