“When the law is against you, argue the facts. When the facts are against you, argue the law.” And, as lawyers in the robocall case demonstrate, “when both the law and the facts are against you, just argue.”
To his credit, that’s precisely what Julius Henson and his defense attorney are doing to contest two counts of conspiracy to violate election laws, one count of election fraud and one count of violating the authority line requirement. The charges arise from an election day “robocall” telling voters 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. The only thing left is to watch it on TV tonight.”
Prosecutors claim that Henson and Ehrlich campaign manager Paul Schurick used this trick to deter city democrats from going to the polls and voting against their candidate. Of course, as O’Malley and the Democrats coasted to easy victories that night, their tactics didn’t work.
Thus far, the tactics of their defense attorneys haven’t worked either.
Attempting to deter jurors from voting against his client, Schurick’s attorney argued that the robocall was a “counterintuitive” use of "reverse psychology" to energize, rather than to suppress, city voters. But this defense ran counter to the intuition of city jurors, who unanimously voted to convict Schurick of election fraud.
With Schurick’s cohort on trial for the same thing, is Henson’s counsel changing the game plan? Nope. That’s his story and he’s sticking to it – while blaming Schurick for disrupting his dinner at McDonald’s with the ill-conceived concept.
It may be easy to criticize Henson’s defense for sticking to a game plan that has already failed his alleged co-conspirator. But, in my view, it’s even harder to come up with arguments that stand a better chance of success.
Let me give it a try. Having followed bits and pieces of Henson’s trial testimony, here are my top five defenses that Henson could have chosen in his personal campaign for acquittal:
1. “I wrote the robocall script on a napkin at McDonald’s and accidentally covered the authority line with ketchup.”
2. “Too many Democrats rushing to the polls would create a traffic hazard.”
3. “We weren’t trying to suppress the vote. We were trying to increase ratings for election night coverage.”
4. “They didn’t indict any of the Democrats behind the ‘Dewey Defeats Truman’ headline.”
5. “What’s wrong with telling Democrats to relax?”
I think I like the counterintuitive approach better.