This is an important VOTING RIGHTS CASE and Governor Andrew Cuomo needs to review the official record of the O'Hara case, as well as all of the information concerning the prosecution and conviction of O'Hara for ILLEGAL VOTING uncovered by years of journalistic digging
The record will show that Mr. O'Hara was a Democrat politician in Brooklyn who had repeatedly run for the state Assembly in opposition to the locally powerful Democrats and that he voted from an apartment on 61st Street in Sunset Park for many years. It will also show that's where he had lived since he was a teenager and resides to this day.
In the early 1990s, when his apartment was Gerrymandered into a different district, O'Hara filled out a new voter registration form claiming as his residence an apartment on 47th Street that belonged to his girlfriend at the time. That put him back in the same district from which he previously had voted and run for office. He voted from that address on five occasions. A few years later, John O'Hara was indicted by a Brooklyn grand jury on charges brought by Brooklyn D.A. Charles Hynes. The indictment accused O'Hara of offering a false instrument for filing, false voter registration and multiple counts of illegal voting. Basically, the prosecution claimed that the 47th Street address was a sham and that Mr. O'Hara was still living on 61st Street. O'Hara never denied having the 61st Street Apartment, his defense was that 47th Street was his principal and permanent address for all of the years in question.
Mr. O'Hara was convicted after a trial in May 1997, but the conviction was reversed. A second trial resulted in a mistrial due to a hung jury. After some time and a the third trial -- the most retrials ever by the Brooklyn DA's office -- the top trial attorney in the Brooklyn DA's office finally secured a conviction. Mr. O'Hara was disbarred, fined $20,000, placed on probation and required to perform 1,500 hours of community service.
The case made it to the New York State Court of Appeals where two dissenting judges particularly noted the "unique" prosecution of Mr. O'Hara and the "politically charged" nature of the underlying dispute. The dissenters also found the trial court's charge to the jury on what legally constituted "residence" confusing.
John Kennedy O'Hara has been fighting to restore his reputation ever since. To a large extent he has succeeded, as is demonstrated by the broad and diverse support for O'Hara from both the reportorial and editorial press in New York City and Albany for many years.
Another measure of that success occurred in 2009, when a 25-member Character and Fitness Committee of the Appellate Division, Second Department, voted unanimously that Mr. O'Hara's license to practice law should be restored. That committee of the Brooklyn Bar expressed "grave doubts that Mr. O'Hara did anything that justified his criminal prosecution." A panel of justices from the Appellate Division Second Department accepted that recommendation.
Justice has not yet been done. The fact that the O'Hara conviction for illegal voting is still a matter of record constitutes a blot on O'Hara's reputation as a political activist and candidate; more important it is a blot on the history of the State of New York as a hallmark of democracy and democratic participation.
To date, Mr. O'Hara has sought a full pardon from former governors George E. Pataki, Eliot Spitzer or David A. Paterson; and, to date all have FAILED to do the heavy lifting of looking into what really was done by the Brooklyn DA, the DA's office and the Brooklyn trial courts in the three trials of this case.
In particular, Governor Cuomo should look at what his predecessor, Mr. Paterson, had to say about the O'Hara case. In his final interview before leaving office, David Paterson said the decision to deny Mr. O'Hara a pardon was "close," but ultimately he decided he could not grant the pardon without essentially overturning the Court of Appeals opinion that affirmed his conviction. "For me to pardon Mr. O'Hara, I have to overrule the New York State Court of Appeals, which I am unwilling to do," Mr. Paterson said this to Errol Louis on NY1 on Dec. 31, 2010. The outgoing governor added that had Mr. O'Hara not appealed his conviction and if the Court of Appeals had not spoken he might have granted the pardon. "It was close.... It bothered me that so much energy was waged putting this gentleman in the position he was in. I take the Court of Appeals very seriously…and I don't think a governor should be overruling them on a point of law."
O'Hara has stressed that is not what he is asking Governror Cuomo to do with his current pardon request. According to O'Hara, this is a "One of a Kind Case." O'Hara's pardon petition states that he is not asking Mr. Cuomo to overrule the Court of Appeals. Rather, the argument addressed to the governor is one of proportionality. The penalty meted out to John Kennedy O'Hara was by far the stiffest ever handed out in a disputed address case of any in the history of New York State elections. According to one of O'Hara's lawyers, Aileen Nadelson, "I only wish to point out that under similar circumstances there continues to be differing results.… Mr. O'Hara paid a high fine, was sentenced to three years probation and went on record as a felon. Others in similar cases, at the very worst, faced losing their right to vote in the current election. Mr. O'Hara on the other hand, was stripped of his voting rights and, more importantly, his legal license."
Ms. Nadelson argues that Mr. O'Hara's conviction is "one of a kind and seeks a one of a kind pardon." Nadelson has said that her client, John O"Hara and suffragette Susan B. Anthony, who founded the League of Women Voters, are apparently the only New Yorkers ever convicted of illegal voting. Notably, when Susan B. Anthony had been convicted in 1873, she was fined $100, but the government did not pursue her to force payment.
"[E]nforcement of the residency rule is random, at best, and selective, at worst," Ms. Nadelson wrote in O'Hara's petition. "In the matter of O'Hara, the charges were brought three years (in 1996) after the alleged violations (in 1993). Out of more than a million registered voters in Brooklyn, O'Hara was the only case investigated and then prosecuted for illegal voting. For those people who maintain dual residences [which is in no way illegal], a danger looms that a vote from [any] one of the addresses may lead to criminal allegations from the opposing factions." In an earlier interview Ms. Nadelson had said, "John [O'Hara] just wants his dignity and respect back, and I think he deserves it.... It would be the fair thing to do, the judicious thing to do."
[ For the record: Attorney Nadelson's connection to John Kennedy O'Hara dates back to 2000, when she was president of the League of Women Voters, who filed an amicus brief on his behalf with the Court of Appeals. The following year, Mr. O'Hara encouraged Ms. Nadelson, then a solo practitioner in Manhattan, to run as an opposition candidate for a Civil Court Judgeship in Brooklyn. She prevailed, marking a rare defeat of the Brooklyn political organization in a judicial contest. Concerning her representation of Mr. O'Hara since retiring as Civil Court Judge, Ms Nadelson has been reported to have said, "My petition on his behalf is not made out of indebtedness.... I do this simply because I believe it is judicially important for public policy as much as it is for Mr. O'Hara." In an interview, Ms. Nadelson said she agreed to represent Mr. O'Hara pro bono because his punishment was "really over the top" and disproportionate.]
Mr. Cuomo's approach to pardons and clemency is unknown at this time; and there has been no reaction from Albany to the O'Hara petition. Nonetheless, in a year where attempts to limit voting rights have not found favor among progressives -- in the media, in government and in the courts -- it would seem ODD for someone, like Governor Andrew Cuomo, seeking to burnish his credentials on such sensitive issues nationally, NOT to come out in favor of a petitioner like John Kennedy O'Hara in his home state.
Even though the DA and the New York State Courts were supposedly enforcing the New York State Election Law in the O'Hara case, neither the DA nor the courts acknowledged how varied the standards and results in Election Law cases involving contested residence had been up to that time or that the Federal Courts had even jumped into the middle of things and applied their own definition of residence in election cases.
ReplyDeleteThe John O'Hara case was given SPECIAL TREATMENT each and every step of the way, including in the processing of the multiple appeals.
Other candidates and voters in similar cases, including even a few elected officials, faced at the very worst having their names taken off the ballot in each single current election and in the particular district at issue before the Board of Election or the court. In extreme cases, the Board of Elections has an administrative proceeding to dis-enroll any wrongfully registered voter. None of the regular standards and procedures were applied by the Board of Elections to Mr. O'Hara on any of the issues that were brought up by the DA in the O'Hara indictment.
Mr. O'Hara was subject to the full power and might of the State of New York by the hand of an overzealous and vindictive prosecutor, Charles Hynes, who for some reason was in pursuit of a personal vendetta and was clearly acting as one with an "evil eye" and an evil intent.
O'Hara was prosecuted, indicted, tried three times for the same charged offenses, with changing theories, facts and witnesses. And after conviction --- O'Hara was uniquely forced into penal servitude, prevented from making a living in his chosen and earned profession by being stripped of his legal license, and most important deprived of his constitutional right to enjoy the democratic franchise of the vote.
Voting is not a crime
ReplyDeleteTell that to John O'Hara and Susan B. Anthony !
DeleteCuomoand Hynes are old time political hacks. A pardon for Ohara.
ReplyDeleteGet real.