A judge ruled Monday that Democratic Rep. Elijah Cummings won't have to provide documents sought by attorneys for Paul Schurick, who is accused of trying to use an Election Day robocall to suppress the black vote in Maryland's 2010 governor's race while he was an aide to former Gov. Robert Ehrlich. But the judge ruled Cummings must be available as a trial witness.
Baltimore Circuit Judge Lawrence Fletcher-Hill issued the ruling after hearing arguments from lawyers before opening jury selection for the trial, which is expected to last about five days.
Paul Shelton, an attorney for Cummings, told the judge that the congressman does not have the documents sought in a subpoena from Schurick's lawyers relating to work Democratic political operative Julius Henson may have done for Cummings in the past. Shelton also described the subpoena as burdensome and overreaching.
"I think it's a fishing expedition," Shelton told the judge, adding Cummings hasn't had contact with Henson for several years.
Henson is charged with similar counts as Schurick in what prosecutors allege were efforts to keep voters in two heavily Democratic districts from casting ballots in Ehrlich's rematch with Democratic Gov. Martin O'Malley. O'Malley won re-election.
After the election, Maryland Sen. Benjamin Cardin, a Democrat, asked U.S. Attorney General Eric Holder to investigate the calls, saying they were clearly intended to suppress voter turnout in predominantly African-American communities.
Although Henson has often served as a political consultant to Democrats, he worked for the Republican Ehrlich in last year's campaign. Henson's trial is scheduled for February.
Schurick's lawyer, A. Dwight Petit, argued that the defense should be able to explore a robocall with Cumming's voice that was sent on Election Day telling voters to ignore the call that was made encouraging them to stay home. But the judge questioned why defense attorneys would need such documentation.
Cummings is one person on a long list of potential witnesses that includes a variety of former state officials.
Ehrlich also is on the list, as well as Greg Massoni and Henry Fawell, longtime Ehrlich aides who worked on his 2010 campaign. Former Lt. Gov. Michael Steele, who went on to serve as the chairman of the national Republican Party, also is on the list. Former Gov. Marvin Mandel, a Democrat, is on the list as well.
Others on the list include Linda Lamone, the state elections administrator; James "Chip" DiPaula, Ehrlich's former chief of staff and budget secretary; Dick Hug, a prominent Republican fundraiser in Maryland; and Lainy LeBow-Sachs, a longtime aide to the late Gov. William Donald Schaefer.
Jury selection began with the judge asking 55 potential jurors if they had received the call urging Democratic supporters to stay home. Only two stood to say they had. The call, which was sent out the afternoon of Election Day while polls were still open, went to about 110,000 residents.
When jurors were asked to stand if they had read about the case, about 30 stood up.
The judge informed attorneys that the call came to his household, but he said his wife answered the call, and that he didn't believe it would hurt his impartiality. None of the attorneys objected to his presiding over the trial.
Schurick and Henson are charged with three counts of conspiracy to violate state election laws. They also are charged with one count of attempting to influence a voter's decision whether to go to the polls through the use of fraud and one count of failing to provide an authority line on distributed campaign material.
The authority line violations carry a maximum of a year in prison if convicted. The other charges carry up to five years in prison for each county. Schurick faces an additional charge of obstruction of justice for allegedly withholding documentation sought through a grand jury subpoena