Court win for a political maverick
After felony conviction, John O'Hara gets his law license back
By RICK KARLIN, Capitol bureau, Saturday, October 10, 2009
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John O'Hara fought city hall and won, although it took 12 years.
More specifically, O'Hara fought the Brooklyn Democratic machine, which criminally prosecuted him after he launched a series of primary challenges against its candidates in the 1990s.
The subject of several newspaper and magazine articles and an Alex Gibney documentary that's in the editing stages, O'Hara has been fighting for a pardon and a reissuance of his law license after he was convicted of felony voter fraud for listing his girlfriend's home as his address.
Earlier this week, the Appellate Division's Second Department in New York City concluded that O'Hara could get his license back after its 25-member Committee on Character and Fitness voted unanimously to do so.
"I'm a lawyer," a buoyant O'Hara said upon learning he was reinstated. "Can you believe it?
The lifelong political activist's odyssey began in 1996 when he ran against Assemblyman James Brennan (pictured at right) in a primary.
O'Hara's opponents learned of the registration issue and went after him. Brooklyn District Attorney Charles Hynes (pictured below) prosecuted O'Hara, who stubbornly turned down a misdemeanor plea. He was convicted of seven felony counts after three tries, including a reversal on appeal and a mistrial.
O'Hara, 49, avoided prison through community service, including a stint picking up trash around his old high school in Brooklyn. But without a law license he essentially became destitute.
The case drew attention because of the severity with which prosecutors came after him. Normally, an erroneous voter registration address is handled as a civil matter as long as it isn't an outright "sham," noted O'Hara.
The lawyers fitness committee acknowledged the heavy prosecution in its recommendation, stating that "Mr. O'Hara, it accurately appears, claims that the machine went gunning for him and pounced on his change of residency, calling it election fraud."
Both his and his girlfriend's addresses were in the same legislative district. Neither Hynes nor Brennan returned phone calls Friday.
O'Hara also caught the attention of voting rights activists such as the Justice Card Alliance, a New York City voting rights group that came to his legal defense. They noted that Susan B. Anthony may be the only other New Yorker ever prosecuted for voting: She cast a ballot in 1876 before the advent of women's suffrage.
After exhausting the appeals process and unsuccessfully seeking a pardon, O'Hara turned his focus to his law license.
"I never thought it was going to happen until it happened," he said.
O'Hara, who has jokingly referred to the entire affair as an Irish bar fight but with no bar (O'Hara, Brennan and Hynes are Irish), stressed that he remains unbowed by the system.
Normally, he said the path to getting one's law license back involves a show of remorse but O'Hara insists he never did anything wrong.
"I was never going to apologize."
O'Hara is still seeking a pardon, has an online petition and is raring to get back into politics. This time, he's looking elsewhere than New York City's mammoth Democratic machine.
O'Hara will be a featured speaker at a state Libertarian Party meeting Monday in Manhattan. He's considering seeking their support to run for governor.
Rick Karlin can be reached at 454-5758 or rkarlin@timesunion.com.
John O'Hara's Online Petition
Statement by actor Chris Noth
On Election Day, thousands of New Yorkers, including myself, could be subject to felony prosecution when we cast our vote. This is because of a precedent set by the case of the People v. John O’Hara. O’Hara’s story has been chronicled in Harper’s Magazine, in scores of articles in the New York Times and in every major daily, and even overseas in the pages of magazines like the New Zealand Herald.
In 1996, at the age of 35, John Kennedy O’Hara was indicted by the Brooklyn district attorney for registering to vote and for voting. The nature of his crime? He voted from a residence that was not his “principal and permanent residence” – in other words, he kept two apartments and was registered to vote from one of them. Under the strictest interpretation of the election law statutes in New York State, voters are absurdly required to pledge allegiance to one residence, indefinitely. Otherwise, you’re subject to felony prosecution. No one before O’Hara had ever been prosecuted under this statute. The last case to be successfully brought for false registration and illegal voting took place in 1873, in Rochester, New York. The defendant in that case was Susan B. Anthony.
Because of the dangerous precedent created by the O’Hara prosecution, anybody with two or more homes can face prison time if they vote. Students living out of dormitories can go to jail for voting. Homeless people living in shelters can be prosecuted if they vote, along with people who have recently lost their homes through foreclosure.
This petition asks the governor of New York State, David Paterson, to correct this injustice with a pardon for John O’Hara, who is today a convicted felon and a disbarred lawyer. This is not a liberal or conservative issue, it’s about justice. That’s why you’ll find my name on this petition.
Statement by actor Holt McCallany
Chris NothI’ve known John O’Hara my entire life. We grew up together and our mothers have been best friends for fifty years. Some of my fondest memories are of summers I spent as a boy helping him with his political campaigns. John was like the older brother I always wanted. He was a savvy, streetwise kid with a generous spirit who loved Brooklyn and was destined to be a leader in his community.
Sometimes we value our liberties by the price we pay for them, and nobody has paid a higher price for voting than John. Confined by probation for 5 years, fined $20,000, disbarred as an attorney and ordered to do 1,500 hours of community service by cleaning garbage in the very same parks we once campaigned in, John never became bitter or disillusioned, but he also never gave up.
He is the first person in Brooklyn ever tried three times on the same charge, and the case of People –v– O’Hara has became one of the most expensive criminal cases in New York’s history. John’s only real crime was refusing to bow to the crown of the corrupt party machine. An act for which he should be honored, not condemned.
Governor Paterson has shown he is willing to break with tradition by not waiting until Christmas, when pardons are usually granted. My sincere hope is that he will act now to erase this horrible precedent. I ask you to join me and other activists who believe in our system of justice to implore the Governor of New York to issue an executive pardon and restore the good name of my oldest and dearest friend John Kennedy O’Hara.
Voting Isn't A Crime
New York Daily News, July 23, 2003
http://www.getny.com/nypol/messages/22.shtml
Raise your head above the political hedgerows in Brooklyn, and you're liable to get it shot off. Figuratively speaking, of course. But figurative doesn't mean painless. Just ask John O'Hara, the only American since Susan B. Anthony to be prosecuted for voting once in an election. He's paying an excruciating price.
This bizarre tale started when O'Hara challenged the Brooklyn Democratic machine by fielding a few insurgent candidates for various offices. The response was a politically motivated indictment and three trials. The charge: False registration and illegal voting, according to District Attorney Joe Hynes.
O'Hara committed the supposed crime of voting from his girlfriend's address - where he was living at the time - instead of his own. But voting cannot be criminalized, even in Brooklyn, and the state courts erred grievously in allowing this farce to proceed all the way up to a split state Court of Appeals. O'Hara, once a licensed lawyer, is now a disbarred, convicted felon.
The U.S. Supreme Court ruled this year that federal judges must not defer to state courts and should examine state criminal matters much more closely.
The federal appeals court in Manhattan now has the chance to right a grievous wrong. The judges are expected to decide soon whether to hear O'Hara's case. In the interest of justice, they must grant a hearing. If any matter demanded federal intervention and examination, it's this one.
Former Attorney Loses Appeal Of Conviction for Illegal Voting
BY JOHN CAHER, New York Law Journal, June 15, 2001
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ALBANY - By a 5-2 vote yesterday, the Court of Appeals apparently made John Kennedy O'Hara the first New Yorker since suffragette Susan B. Anthony (pictured above) to stand convicted of illegal voting and false registration.
On Monday, the former attorney - who was disbarred following his conviction for voting from a residence where he had stayed for a time, but that was not his permanent home - is due back in court. Mr. O'Hara, who is unemployed, owes more than $20,000 in fines and about 1,000 hours of community service. Since he has no money and no job, Mr. O'Hara said he expects to go to prison.
"When the country starts locking people up for voting, you just have to stop and take notice," a dejected Mr. O'Hara said yesterday I can't believe the Court of Appeals would stand for this ... . I am wiped out - disbarred, chain-ganged, confined by probation for 15 months, and all because I registered to vote."
Yesterday's ruling in People v. O'Hara, 78, caps five years of effort by the Brooklyn District Attorney that resulted in three trials against a political gadfly and four appeals. It stems from the fact that in 1992 Mr. O'Hara, who has run unsuccessfully for various state and local offices, registered to vote from his ex-girlfriend's apartment on 47th Street in Brooklyn after reapportionment shifted his permanent residence on 61st Street to a different electoral district. Mr. O'Hara voted from the 47th Street residence five times in 1992 and 1993.
Brooklyn District Attorney Charles Hynes pursued criminal charges and obtained an indictment accusing Mr. O'Hara of seven felonies, alleging that the 47th Street apartment was never his legitimate residence. The essence of all the charges was that Mr. O'Hara was not a resident of 47th Street within the meaning of the Election Law, which defines residence as "that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return."
The first trial ended in a conviction that was overturned on appeal. The second concluded with a hung jury. The third resulted in a conviction on all seven counts and, ultimately, an affirmance by the Appellate Division, Second Department, and now the Court of Appeals.
On appeal, Mr. O'Hara, who was represented by Steve S. Efron of Manhattan, relied largely on the Court of Appeals' decision in Ferguson v. McNab, 60 NY2d 598 (1983), where the Court said a "candidate having two residences may choose one to which she has a legitimate, significant and continuing" attachment. Mr. O'Hara maintained that under Ferguson, he maintained two bona fide residences, and was free to choose either as his voting address. He argued that the statute, and the trial court's reliance on it in charging the. jury, essentially deprived him of the opportunity to select between the two apartments.
"I was guilty as charged," Mr. O'Hara acknowledged yesterday. "The question was whether it was the proper charge."
One Question
The five-judge majority, lead by Judge Richard C. Wesley, distilled the case down to one question: Did Mr. O'Hara genuinely take up residence at 553 47th Street?
At trial, an Office of Court Administration employee testified that Mr. O'Hara had listed 47th Street as his address on an attorney registration form. Additionally, Mr. Ohara showed that his American Express billing statements were sent to that address. Neighbors testified that they had seen Mr. O'Hara entering the 47th Street apartment, and his mother and aunt both said he was living at that address. Mr. O'Hara testified that while he lived on 47th Street he maintained the 61st Street apartment as an office and for relatives. He said that after he and his girlfriend broke up, she allowed him to stay in the basement rent free, which he did for a while before returning to 61st Street.
On the other hand, Mr. O'Hara acknowledged that he never changed his driver's license to the 47th Street apartment and continued to use the 61st Street address on his state and federal tax forms. Further, the owner of the 47th Street building testified that the basement had never been a habitable apartment, the 61st Street landlord said Mr. O'Hara was a tenant there, and the telephone company reported that the defendant had telephone service at 61st Street but not 47th Street.
In charging the jury, the trial court defined residence as it is described under Election Law, and advised that a person with two residences may choose either for voting purposes so long as the one chosen comports with the statutory definition.
Mr. O'Hara maintained on appeal that the Election Law definition of "residence" is vague and unconstitutional and that the statue cannot be reconciled with case law. Judge Wesley wrote that the statute clearly defines residence, that the charge was not confusing, and that Election Law andFerguson are not, as Mr. O'Hara and the dissent maintained, irreconcilable.
"Thus, to be a resident of a place, a person must be physically present with the intent to remain for a time," Judge Wesley wrote. He noted that courts have recognized "that in this modern and mobile society" a person can maintain more than one legitimate residence, but said "for the purposes of Election Law, one cannot create an address solely for the purpose of circumventing residency requirements."
Joining the prevailing opinion were Chief Judge Judith S. Kaye and Judges George Bundy Smith, Carmen Beauchamp Ciparick and Victoria A. Graffeo. Judge Albert M. Rosenblatt dissented in an opinion joined by Judge Howard A. Levine.
Dissenting Opinion
Judge Rosenblatt argued that the definition of residence is anything but clear and said the trial judge's charge, which attempted to combine both statutory language and the essence of Ferguson, led to "two facially incompatible formulations of residence" that "should' not be countenanced in a felony prosecution."
The dissent referred to the 1972 decision in Bressler v. Holt-Harris, 37 AD2d 898 and 30 NY2d 529. Bressler involved a prominent Albany lawyer who lived outside the city but wanted to run for a city judgeship. John A. Holt-Harris' law firm maintained for him a studio apartment in the City of Albany where Mr. Holt-Harris recalled eating and sleeping a grand total of once in seven years. In Bressler, the Appellate Division, Third Department, applied the same statute invoked against Mr. O'Hara and found that Mr. Holt-Harris was In compliance. The Court of Appeals affirmed.
Judge Rosenblatt said New York courts have consistently refused to invalidate candidacies based on failure to strictly comply with residency requirements, and expressed misgivings about doing so in a criminal case when the definition of residence is hardly crystal clear.
"If politically-charged disputes such as this and questions of 'residence' are going to be resolved in the criminal arena and decided by juries, with the possibility of criminal conviction and incarceration, we should ensure that the definition of residence is plainly fixed and easily understood," Judge Rosenblatt said.
The prosecution was represented by Assistant District Attorney Monique Ferrell. In a prepared statement, District Attorney Hynes said: "The Court has sent a clear unequivocal message that one cannot defraud the voters of Kings County,"
Mr. O'Hara was supported in amicus curiae briefs filed by the League of Women Voters and the New York Civil Liberties Union.
Similar Charge
Apparently, the last person in New York convicted of a similar charge, although under a different statute, was Ms. Anthony, who was ineligible to vote because of her gender and was prosecuted in 1876. Aside from Mr. O'Hara, the only other person ever criminally charged with failure to establish legal residence within a voting district was Benjamin Ramos, who was prosecuted for using his in-laws' apartment as his legal residence so he could run for the Bronx school board. The indictment against Mr. Ramos was dismissed in 1999 because of a faulty definition of residence - the definition in Election Law - provided to the grand jury.
Mr. O'Hara blamed his unique prosecution on a political vendetta and the fact that he challenged the power structure, perhaps one time too many.
"In essence, I refused to bow to the crown," Mr. O'Hara said. "You just don't stand up to the powers that be and not face consequences."
Kevin Davitt, spokesman for Mr. Hynes, said there was no political agenda behind the prosecution. He said that given Mr. O'Hara's egregious violations - he voted not once but five times from the 47th Street address - "a precedent had to be set."
Mr. O'Hara said he had practiced law for about 10 years in New York City before he was disbarred.
"It [practicing law] seems like a distant memory to me now, and I guess it is going to stay that way," he said.
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