O'Hara vs. Hynes: The Case Against the Lawless D.A.
New York Press
April 6, 2005
By Christopher Ketcham
Last Tuesday in Brooklyn, John Kennedy O'Hara, a convicted felon and ex-candidate for office, celebrated his 44th birthday by putting the final touches on a complaint to the New York City Conflicts of Interest Board, which, among other duties, oversees the conduct of district attorneys and their staff. O'Hara's broadside targets Charles "Joe" Hynes of Brooklyn, the four-term incumbent DA and the man who ruined his life. It was Joe Hynes, after all, who in 1996 indicted O'Hara on a trumped-up "illegal voting" charge as revenge for challenging Democratic machine candidates. It was Joe Hynes who for almost a decade pushed the case through three long trials and the nine appeals that O'Hara, like a crazed bug, persisted in filing year after year.
John O'Hara has the honor of being one of only two New Yorkers ever tried and convicted as a criminal for the act of registering to vote; the other was Susan B. Anthony. The gravamen of his crime was that in 1992 O'Hara registered to vote from the second of two apartments he maintained in Brooklyn. This fateful second apartment unfortunately failed to meet the absurdist strictures of New York State election law, which states that a bona fide residence must be "principal and permanent." Under the strictest interpretation of the law, O'Hara could not maintain two apartments. Never before People v. O'Hara had the election law statutes pertaining to residence been so enforced. To many it looked as if O'Hara had been singled out by District Attorney Hynes, targeted because of his repeated insurgent candidacies for local office. Such are the rules of the game in the small, vicious world of Brooklyn politics.
Now in his run-down walk-up in Sunset Park, surrounded by Hynes' campaign disclosures and payrolls and a pile of empty beer cans, O'Hara, who had once worked as a Wall Street attorney, is preparing a birthday revenge of sorts that has the added taste of sweet irony. His discovery? One-third of Joe Hynes' top staff—the assistant district attorneys (ADAs) who prosecute murder, rape and arson—themselves stand in violation of state and county residency laws. The revelation may result in chaos, as the law mandates that ADAs in violation of residency statutes be removed immediately from the cases on which they are working. This would be exactly what O'Hara hoped for—mayhem in the Brooklyn DA's office, just as his nemeses, Joe Hynes, faces reelection.
The New York State legislature mandates that ADAs live within the five boroughs (though the Manhattan DA in 1962, arguing the office needed the best and the brightest wherever located, finagled a sole exception). The ordinances that govern municipal employees similarly demand a proper city residence and mandate termination if otherwise shown.
The meaning and spirit of these edicts lie in the dubious hope that people who live in a place, who know its streets, who have neighbors in it, will care about the place. State lawmakers were especially aware of the importance of a prosecutor residing in the jurisdiction where he tackles crime, and so under the Public Officers Law they required the district attorney himself to have his principal home in the county he oversees. Likewise, the attorney general's office requires the so-called "chief ADA"—the second-in-command, designated to succeed the district attorney should the DA become incapacitated—to live in the county as well.
In Brooklyn, the weight of the law—and certainly its spirit—is lightly regarded. Joe Hynes himself maintains a Bay Ridge apartment where neighbors attest he is rarely seen. He reportedly spends most of his nights at his "summer home" in Breezy Point, Queens, on the Rockaway peninsula—outside the jurisdiction. Hynes once registered to vote from the Brooklyn Municipal Building, the site of "principal and permanent" residences such as the Parking Violations Bureau and the Department of Buildings. (Hynes now claims that he was "accidentally" registered at the Municipal Building by a system glitch.) According to Hynes' campaign disclosures and payroll, Amy Feinstein, his $149,000-a-year chief ADA who, like Hynes, is required to live in the county, resides on the Upper East Side, in an upscale building on Third Avenue—outside her jurisdiction.
The campaign filings further reveal that of the 98 executive prosecutors like Feinstein—those earning $100,000 or more—at least 33 live outside the city, even outside the state, as far away as Rochelle Park, NJ.
The lead ADA in the O'Hara case, John P. O'Mara, the $132,000-a-year deputy prosecutor in the elite Investigations Bureau and a long-time Hynes associate, also happens to live in New Jersey, in the tony enclave of Montclair. O'Mara spends most of his time pursuing high-profile rapes and murders—reputedly never losing a case—and was handed the O'Hara matter to untangle its bizarre technicalities and insure a win. O'Hara over the years nursed a bitter hatred for O'Mara, who, as the trial transcripts in the O'Hara case showed, tended to lie in the courtroom or conjure fabrications from his witnesses while deploying inflammatory rhetoric (behavior for which the defendant has no redress, given that prosecutors enjoy absolute immunity in their trial conduct; prosecutors, in effect, are above the law).
Then there is the case of Dino Amoroso, chief counsel to Joe Hynes, who at $149,000 a year claims on campaign disclosures to be a resident of none other than the storied Brooklyn Municipal Building. Amoroso in fact lives in a suburban home in Lynbrook, NY, on Long Island, where his phone is listed in his wife's maiden name. Amoroso is registered to vote from a house in Kew Gardens, Queens, owned by his mother and father, where both parents, plus Amoroso's 43-year-old brother, are also registered to vote. One wonders if Amoroso, at 48 years old and with a wife and children on Long Island, really lives with his parents, for if the facts show otherwise the consequences could be severe. Amoroso in the last five years alone voted nine times from the Kew Gardens address, actions that under the shadow of the O'Hara precedent amount to at least nine Class E felonies punishable each by up to four years in prison.
Robert Reuland, a former homicide prosecutor under Joe Hynes now turned novelist and criminal defense attorney, draws the obvious conclusion that in the wake of O'Hara's complaint to the city Conflict of Interest Board—which O'Hara filed Monday—defense lawyers are on notice to freely pry into the residency of Brooklyn prosecutors. If the residence fails the stipulations under state law, a further motion could be made to have the prosecutor removed from the matter at hand.
"Speaking as a defense attorney, I am certainly going to make this part of my general motions at the outset of a case," says Reuland. "It's Hynes' job to ensure that his people follow the law. I mean, Hynes spends how many thousands of dollars prosecuting John O'Hara thrice for violating a silly law, and he doesn't lift a finger to see that a sensible law is followed by his own people? It falls then to the person next best situated to do that, which is the defense attorney," Reuland adds. "Responsible courts are going to effectively prohibit those ADAs from prosecuting cases, because the prosecutors are not in conformity with state law."
The offending prosecutors could of course attempt in good faith and time to secure a proper residency. But it is questionable whether ADAs established with homes and families and children in Scarsdale or Lynbrook or Great Neck, blessed with tax-payer-funded SUVs and EZ Passes to pay their tolls as they break the law, are willing and able to uproot on short notice. If the state courts and appellates rule against non-resident ADAs—and the case law suggests this is likely—one in three of Brooklyn's most experienced prosecutors could be barred from the courtroom, a disaster in the short term for the criminal justice system, as prosecutors will be forced to hand off long-investigated and intimately understood cases to neophytes or peers bogged in their own caseloads. This leads to the larger question of the utility of employing prosecutors in a crime-flooded jurisdiction who can't function in the very capacity—courtroom wrangling—for which they are prized and paid so handsomely.
Reuland, as a former ADA in Brooklyn—who after five years finished at $86,000 but always lived in Park Slope—sees the issue as elementary to the class divisions that often poisoned the ranks of Hynes' lower-paid assistants. "Executive staff are treated like royalty whereas the junior assistants had to hump it," he says. "They're living in Sunset Park and in Sheepshead Bay, they're taking the F train to work, they have a case load of an abominable 180 misdemeanors, they're going home at 9 p.m. every night, and they're doing this all for $40,000 a year. Everybody knew that the execs lived out of town, and people were irked by it. There was not a feeling that we were all in this together."
John O'Hara decided one cold March morning around 6:30 a.m. to fact-check the addresses he'd culled from Hynes' campaign disclosures. Holed up in his apartment, he cracked a beer and telephoned the home of ADA John O'Mara in Montclair—the "crime scene," he said—where a woman answered the line. "Hi, John O'Mara please. It's John O'Hara," he said cheerfully. There was noise in the O'Mara household, including a muffled male voice. The woman suddenly spoke up, sounding panicked, "There are waivers for this!"
"Theresa," said O'Hara slowly, who knew the name of Theresa O'Mara, the prosecutor's wife and a lawyer herself, from an obituary he'd read in a Montclair newspaper, "you're a lawyer. You know there are no waivers."
She hung up. New York Press later made repeated calls to Hynes' office to ask about the "waivers" for non-resident ADAs to which Mrs. O'Mara apparently referred. Those calls were never returned.
O'Hara then dialed the phone to Lynbrook, Long Island, to the home of Hynes' consigliere Dino Amoroso, where a woman answered in a pleasant voice. She told O'Hara, "Well, Dino is sleeping. Is it important?"
"Oh, I'd say it is," said O'Hara.
"Should I wake him up?"
"Absolutely," said O'Hara. There was a pause, someone came to the phone and killed the line. O'Hara put the receiver down, smiled and drank his beer.