December 19, 2002
A machine grows in Brooklyn
I met an editor at the National Law Journal last week. Being a man who has a somewhat shaky grasp of the concept of social graces, I immediately began regaling her with my favorite stories of lawyerly malfeasance and moral turpitude here in the Big Apple. Rather than taking offense, she shared with me her favorite example of legal abuse of power, and it is a doozy.
She told me about a fellow named John O'Hara, who is a lawyer and political gadfly in Brooklyn who repeatedly (and unsuccessfully) ran for local office against candidates backed by the Democratic machine. In 1996, O'Hara was arrested (and after three trials, convicted) of felony electoral fraud for registering to vote at his girlfriend's home after his own apartment had been redistricted into another district. As I understand it, NY election law is vague about how residence is defined for electoral purposes. If a person has two residences, they are generally free to choose either one to register to vote. O'Hara did receive some bills at his girlfriend's apartment, and also registered as an attorney at that address. However, he did maintain his other apartment and listed that address on his tax returns and other documents.
Here is how the NYT described the case in an article from June 2001:
From the start, there was nothing ordinary about the case of John Kennedy O'Hara.
He was, legal scholars said, the first New Yorker since Susan B. Anthony to be prosecuted for voting, and possibly the first ever prosecuted for lying about his voting address. The Brooklyn district attorney, Charles J. Hynes, took Mr. O'Hara's case to trial not once but three times, for offenses that are usually handled as civil cases or ignored entirely.
Today, a divided Court of Appeals, the state's highest court, upheld the 1997 convictions of Mr. O'Hara, a former lawyer, on seven felony counts, ending what the court acknowledged was one of the oddest criminal cases it had seen. Five judges ruled that Mr. O'Hara had simply lied about where he lived, but two others accepted his argument that he was held to a contradictory legal standard that ran counter to recent court rulings.
''I'm devastated,'' Mr. O'Hara, 40, said, adding that he planned to appeal to the federal courts. ''The idea that we can throw people in jail for voting is truly frightening.''
Mr. Hynes said, ''The court has sent a clear and unequivocal message that one cannot defraud the voters of Kings County.''
Mr. O'Hara was sentenced to 1,500 hours of community service, of which he still owes 1,000, and was fined $20,000. He said he has been unable to pay the fine, which has accrued interest during four years of appeals. If he does not pay, he will be subject to resentencing, which could mean prison time.
Since the 1980's, Mr. O'Hara has lived on 61st Street, on the outskirts of Bay Ridge, Brooklyn. He ran several times, unsuccessfully, for various offices, but the 1992 redistricting moved him into different Assembly and City Council districts. So he changed his voter registration to a building on 47th Street, in Sunset Park, that was owned by his sometime girlfriend.
Mr. O'Hara acknowledged that the 61st Street apartment remained his primary residence, but insisted that he spent a considerable amount of time at the 47th Street address. The district attorney's office argued at trial that in fact, he had never lived in the 47th Street building, not even as a secondary residence. Mr. O'Hara was convicted in his first trial in State Supreme Court in Brooklyn, but the verdict was thrown out on appeal. The second trial ended in a hung jury and he was convicted again in the third trial.
According to Mr. O'Hara, he was prosecuted because his primary challenges to politicians, and a suit contesting the results of one such election, posed a threat to Brooklyn's Democratic bosses.
Kevin G. Davitt, a spokesman for Mr. Hynes, said, ''It's a case of a criminal, nothing more than that.''
The case turned on a provision in state law that defines a person's residence, for the purposes of registering to vote, as ''a fixed, permanent and principal home.''
Judge Albert M. Rosenblatt, in dissent, noted that in one case, the New York courts had allowed a candidate for office to keep his voter registration at an address where he had eaten and slept just once in seven years.
This being the Times, the story soft-pedaled some of the major issues at stake in the case. For example, since O'Hara was convicted of a felony, he was automatically disbarred, and thus deprived of his livelihood. He also lost the right to vote, which may have been less significant given how little voting appears to actually matter in Brooklyn, at least in local races. Here is how a column by John Rizio-Hamilton and posted on the Lambda Independent Democrats' website ("Brooklyn's Lesbian, Gay, Bisexual and Transgender Political Voice") described O'Hara's case:
John Kennedy O'Hara, who ran in and lost several elections to incumbents, was originally prosecuted by Hynes in 1997. That year, O'Hara was convicted of charges that he lied about where he lived, ostensibly so that he could run in a Sunset Park City Council race.
Technically, he was charged with using a false address to vote. After three trials and two appeals, he was ultimately convicted of five counts of illegal voting and two counts regarding his voter registration card...
From day one, O'Hara has maintained that he was unfairly targeted by Hynes and Brennan, against whom he ran in 1990, as a way to stop him from creating political dust-ups.
O'Hara says that Hynes prosecuted him on criminal charges that had never been levied before. The only similar case in New York was brought at the turn of the century against Susan B. Anthony, who was accused of illegal voting because she was a woman.
O'Hara also notes the unusual step of Hynes slogging through three trials to win the conviction on charges that are normally brought in civil court.
In fact, O'Hara was singled out to some extent. It is an open secret that some of Brooklyn's elected officials live nowhere near their districts, where they are registered to vote and regularly cast their votes. If a candidate or elected official suspects voter fraud on the part of an adversary, the issue is normally adjudicated at the Board of Elections, and normally results in the perpetrator simply being removed from the ballot. Criminal charges on the matter are virtually unheard of.
Fascinated by all of this apparent skullduggery here in NYC, I did a little more digging and came up with a couple of great articles describing details of how the Brooklyn Democratic machine keeps challengers off the ballot. For example, the Gotham Gazette (which is published by the Citizens Union Foundation) had this gem describing how Brooklyn DA Hynes and his political machine challenged the nominating petitions of a black woman lawyer and Panamanian immigrant who dared to challenge him in the 2001 Democratic primary, or this piece that described how Hynes was ultimately successfully in keeping the challenger off the ballot.
This is nasty stuff. Both parties are using arcane and outdated election laws to stifle dissent and allow the party machines to control lucrative judgeships and other elected positions. Evidently, gadflies who dare to challenge these machines run the risk of having their careers destroyed and lives damaged by malicious prosecution, as well.
But John O'Hara is getting another day in court. Federal Judge John Gleason has scheduled a hearing in the case, probably for early in 2003. We shall see if something closer to justice will prevail.
December 19, 2002 at 01:43 PM | Permalink
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I read some time ago that new York has half the election law litigation in the USA. The explanation for this was that New York is to national election law what Albania was to international communism. What we see is lawyers who used to defend insurgent candidates against ballot challenges by "Tammany" orgnaization Democrats flip over to become courtroom barricudas in keeping today's insurgent candidates off the ballot using the same court papers which were used against their clients 30 and 40 years ago. It's amusing, really.
Posted by: David S. Levine | Nov 20, 2003 2:52:45 PM