The O’Hara chronicle — a look back at the weirdest prosecution in Brooklyn history
October 24, 2011
by John Kennedy O'Hara
The Brooklyn Paper
The Brennan Center for Justice issued a report that outlines a disturbing trend. In the last two years, 14 states have passed laws making it more difficult to vote. It’s estimated that more five million people, mostly the poor and disabled, will now be required to produce a government-issued ID at the polling place, which one out of 10 people don’t have. These new laws may sound benign, but when laws are passed penalties follow.
Fifteen years ago today, I was arrested for voting. I didn’t vote twice in the same day, I was over 18 and a citizen. I had been indicted by a grand jury on seven felony counts for registering to vote and voting in five separate elections. The gravamen of the crime, “false registration and illegal voting,” stemmed from the fact that four years earlier, I voted from my ex-girlfriend’s house in Brooklyn, while still maintaining my apartment some 14 blocks away. I’ve lived in the same neighborhood my entire life. After being fingerprinted and photographed I would learn at my arraignment that I was facing 28 years in prison.
What followed became a Kafkaesque tale that spun into one of the most expensive criminal cases in New York State’s history. People v. O’Hara turned into three trials and a dozen appeals that went all the way to the Supreme Court. The first trial ended with a conviction, which was later reversed on appeal. In the second trial the jury deadlocked, and the third trial ended with another conviction. The last person in New York to be successfully prosecuted for illegal voting took place in 1873. The defendant in that case was Susan B. Anthony.
The trials may sound sanitized, but sitting in a courtroom while a prosecutor goes through every check, credit card slip, and tax return for the past 20 years of your life is not a pleasant event. Your neighbors, friends, and the mailman get hauled into court by the district attorney — all under the guise of a residency investigation. I never considered any offers to plead guilty to a lesser charge. Since turning 18, not once had I ever missed voting in a primary or election and I felt a hard line had to taken when a country starts locking people up for voting.
The time to be sentenced arrived and the court denied the prosecutor’s request for prison. I was sentenced to five years of probation, fined $20,000, ordered to perform 1,500 of community service, and I was disbarred from the practice of law. The stigma of being a disbarred attorney and convicted felon was harsh, but in Brooklyn the best of times and the worst are always close at hand.
When you’re a defendant in a criminal case, you become consumed with your own vindication, and I appealed my conviction in federal court because technically I was still “confined,” a necessary element. I was still performing those 1,500 hours of community service on “the chain gang,” as my friends called it, which could undo what had now become a decade in purgatory.
The United States Supreme Court declined to intervene, and I felt bad about that. Not just for my own circumstances, but now there’s a horrible precedent called People v. O’Hara which subjects a voter to felony prosecution if he votes from a place that’s not his “principal and permanent” residence.
Liberty is not something that gets taken away from us all at once; it gets chipped away at slowly and slowly. It begins with politicians deciding what type of identification a voter needs, but in the end there really deciding who’s eligible to vote for them.
John O’Hara, an attorney, lives in Brooklyn. He was reinstated to practice law in 2009.