Lawyer Convicted for Illegal Votes Revives Bid for Pardon
September 29, 2011
by John Caher
New York Law Journal
With a new administration comes a new petition for pardon and a new approach for attorney John Kennedy O'Hara, who has been fighting for years to restore his reputation after a conviction for illegal voting.
Retired New York City Civil Court Judge Eileen N. Nadelson, who is now representing Mr. O'Hara pro bono, yesterday petitioned Governor Andrew M. Cuomo to pardon her client.
Read the petition.
Ms. Nadelson makes clear that "the request for pardon is not based on sympathy" and is not an attack on the divided 2001 Court of Appeals ruling upholding Mr. O'Hara's conviction (People v. O'Hara, 96 NY2d 378). Rather, she said, it is a "plea to re-examine how New York doles out comparative justice."
Records show that Mr. O'Hara, a lifelong Democrat who had run unsuccessfully for the state Assembly in opposition to the Brooklyn Democratic machine and repeatedly assisted other opposition candidates, had lived in and voted from an apartment on 61st Street for many years.
In the early 1990s, when redistricting placed his apartment in a different electoral district, Mr. O'Hara filled out a new voter registration form claiming residence at his girlfriend's apartment on 47th Street. That put him back in the electoral district from which he previously had voted and run for office. He voted from the new address on five occasions, and was subsequently indicted by a Brooklyn grand jury on charges of offering a false instrument for filing, false registration and illegal voting. The prosecution alleged that the new address was a sham and that Mr. O'Hara was still living on 61st Street.
Mr. O'Hara was convicted after a trial in May 1997, but the conviction was reversed by the Appellate Division, Second Department, because of an improper jury charge. A second trial resulted in a deadlock. The third trial resulted in a conviction. Mr. O'Hara was disbarred, fined $20,000, placed on probation and required to perform 1,500 hours of community service.
In 2001, the Court of Appeals upheld the conviction in a 5-2 decision. The majority essentially deferred to the jury's finding that Mr. O'Hara had not genuinely resided on 47th Street. Two dissenting judges expressed concern over the "unique" prosecution of Mr. O'Hara and the "politically charged" nature of the dispute, and found confusing the trial court's charge on what legally constitutes "residence."
Mr. O'Hara has been fighting to restore his reputation ever since.
In 2009, expressing "grave doubts that Mr. O'Hara did anything that justified his criminal prosecution," the 25-member Character and Fitness Committee of the Appellate Division, Second Department, voted unanimously to restore Mr. O'Hara's license to practice law. A panel of the department accepted that recommendation (NYLJ, Oct. 13, 2009).
But Mr. O'Hara wants more: a full pardon, which he could not obtain from former governors George E. Pataki, Eliot Spitzer or David A. Paterson.
Mr. Paterson, in his final interview before leaving office, 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 told Errol Louis on NY1 on Dec. 31, 2010, adding 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," Mr. Paterson said. "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."
'One of a Kind' Case
Ms. Nadelson stresses in her pardon petition that she is not asking Mr. Cuomo to overrule the Court of Appeals. Rather, her argument is one of proportionality.
"This petition does not request that you override or annul the decision," Ms. Nadelson said in a letter the governor's office received early yesterday morning. "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," contending that her client and suffragette Susan B. Anthony, who founded the League of Women Voters, are apparently the only New Yorkers ever convicted of illegal voting. Ms. Anthony, convicted in 1873, was fined $100, but the government did not pursue payment.
"[E]nforcement of the residency rule is random, at best, and selective, at worst," Ms. Nadelson wrote in the 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, a danger looms that a vote from one of the addresses may lead to criminal allegations from the opposing factions."
Ms. Nadelson's connection to Mr. O'Hara dates back to 2000, when she was president of the League of Women Voters and filed an amicus brief on his behalf with the Court of Appeals. The following year, according to the petition, Mr. O'Hara encouraged Ms. Nadelson, then a solo practitioner in Manhattan, to run as the opposition candidate for a Civil Court judgeship in Brooklyn. She prevailed, marking a rare defeat of the Brooklyn political club in a judicial contest.
"My petition on his behalf is not made out of indebtedness," Ms. Nadelson said in a footnote. "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.
"John just wants his dignity and respect back, and I think he deserves it," Ms. Nadelson said. "It would be the fair thing to do, the judicious thing to do."
Mr. O'Hara said in an interview that his conviction continues to interfere with his professional life.
"It is an awkward situation being an attorney and a convicted felon," Mr. O'Hara said. "I had a client recently who was on bail and wanted me to represent him, but just by associating with me he would be violating the terms of his bail," he said.
Because of his status as a felon, Mr. O'Hara added, "Anybody on probation or parole would be violating the conditions of their release by talking to me, even though I could be their lawyer."
Mr. Cuomo's approach to pardon and clemency applications is unknown as he has yet to use that power, which is traditionally invoked around Christmas. There was no immediate reaction from the administration to Mr. O'Hara's petition.
The Brooklyn District Attorney's Office declined comment.
@|John Caher can be contacted at firstname.lastname@example.org.