Pardon Sought in Voting Conviction Case
Political Dissident Appeals to Outgoing Gov
over ’96 Conviction
By Charles Sweeney
Brooklyn Daily Eagle
ADAMS STREET — There are many novel ways to dispose of a criminal case, and the least-used extra-judicial method — the executive pardon — has only been dusted off and used on one occasion by Governor George Pataki.
John Kennedy O’Hara, convicted of illegal voting in 1996, hopes to become the second recipient of such executive munificence.
In the 12 years since he’s held the governorship, Pataki applied the executive option once, in 2003, when he pardoned controversial Brooklyn-born comic Lenny Bruce — who’d been convicted for using so-called obscene language in his nightclub routine.
Not only was Pataki’s decision to pardon Bruce a first for him, it also represented the first posthumous pardon ever issued by a New York State governor.
Considering the lame-duck governor’s well-known aspirations for national office, many experts agree he’s not liable to change his stingy policy of granting pardons — especially in the case of a conviction as controversial as O’Hara’s.
A former attorney and political aspirant, O’Hara has spent his entire career betting against the odds — and he’s hoping for just such a long-shot decision on an equally rare conviction.
A Rare Case
O’Hara has the dubious distinction of being the second person ever convicted of illegal voting in New York State. The closest he has to a compatriot in so-called crime is a historical figure — voting rights activist Susan B. Anthony — who was sent to a federal lock-up in the late nineteenth century for violating laws prohibiting women from voting.
Notwithstanding the importance of the suffragette movement, O’Hara’s case has nonetheless stirred the conscience of civil liberty proponents ever since it first started garnering press attention over a decade ago. At that time, Brooklyn District Attorney Charles J. Hynes arrested O’Hara on charges of voting in a place other than his “principle and permanent residence.”
“It was my ex-girlfriend’s house that I stayed in for one year, in 1992,” O’Hara explained. “So that was the address I put on my voter registration card that year.”
According to many observers of the internecine warfare of Brooklyn politics, O’Hara’s arrest and conviction had more to do with his fledgling political aspirations. Conspiracy theorists and realists alike point to O’Hara’s declared candidacy for the 51st Assembly District — at the time represented by incumbent Assemblyman James Brennan, a well-known friend and political ally of Hynes (who now represents the 44th A.D., due to redistricting) — as the impetus for his arrest and
“I dared to run against Brennan, that was my real crime,” O’Hara said. “In Brooklyn politics, challengers are not supposed to come from within the party,” he explained.
Indeed, Brooklyn’s virtual one-party system, dominated by Democrats except for a small enclave of Republicans in Bay Ridge and surrounding areas, has contributed to a re-election rate among incumbents of close to 99 percent. O’Hara’s case, and the modern-day Democratic machine politics at play, were the subject of a 2004 feature story in Harper’s Magazine, written by Heights-based journalist Christopher Ketcham.
In the article, Ketcham recounts the feud between the incumbent, Brennan, and the insurgent, O’Hara — with Hynes in the middle.
The article created a mini-firestorm, and resulted in a stream of letters-to-the-editor by Hynes, Ketcham and Brennan for months after the article’s publication. The piece also caught the attention of Emmy-award winning filmmaker Alex Gibney, who began shooting a documentary on the subject shortly after the piece’s December 2004 publication.
Victim, or Cheat?
In the climate created by a one-party system, a candidate like O’Hara, without the backing of the party, stood little chance against the so-called machine candidate.
After trying unsuccessfully to knock him off the ballot through various court challenges, O’Hara maintains he became the target of a campaign of intimidation — including a physical attack against his then-girlfriend.
The assault was perpetrated by Brennan’s chief of staff, John Keefe, who roughed up O’Hara’s girlfriend at a polling place during the 1996 election and ended up pleading guilty to harassment.
“Once it became clear to them that I wasn’t going to back down from running, their only option was to arrest me,” O’Hara recalled. “The charge they came up with was illegal voting.”
The ensuing trial remained on the calendar of one court or another for close to seven years. After a conviction, a reversal on appeal, a second trial resulting in a hung jury and a mistrial, and a precedent-setting third trial after which O’Hara was again convicted, he was finally sentenced to probation and fined $20,000. The sentence also came with 1,500 hours of community service.
Since former attorney O’Hara considered Hynes’ pursuit of him an example of “selective prosecution,” he filed a motion to set aside his conviction in Brooklyn Supreme Court.
Despite his denial of O’Hara’s motion, state Supreme Court Justice Abraham Gerges in his written decision called the conduct of Hynes’ office “disturbing,” asking the rhetorical question why a high-ranking homicide assistant was assigned to prosecute such a low-level offense.
Gerges also asked why Hynes’ office failed to file any supporting affidavits contesting O’Hara’s charges. Despite Gerges’ misgivings, he let O’Hara’s conviction stand.
The entire prosecution remains one of the most expensive in the history of the District Attorney’s Office.
O’Hara’s pardon petition, written and assembled by attorney Sandra Roper — a one-time Hynes opponent for Brooklyn DA, who was also prosecuted by Hynes — was sent to Pataki on Election Day. Weighing in at close to three pounds, the entire package is the size and width of a city telephone directory, containing the written petition itself, as well as dozens of pages of news clips, including several editorials written in support of O’Hara’s case.
The irony of the date the petition was filed, Election Day, was not lost on O’Hara, who is barred from voting because of his felony conviction. O’Hara also lost his ability to practice law, since the New York State Bar stripped him of his law license upon his conviction.
“This prosecution stripped me of my right to vote, it took away my livelihood, and the power of the pardon is there to right wrongs like mine,” O’Hara said. Though this pardon petition represents O’Hara’s personal quest to restore his good name, he is not blind to the ominous precedent a voting conviction sets, along with what he called “the chilling effect” it could have on the general populace.
Having exhausted every legal option short of a review by the U.S. Supreme Court, which declined to hear his case after the New York State Court of Appeals upheld his 1996 conviction, O’Hara does not harbor any illusions about his chances of getting an executive pardon from the outgoing Republican governor. But he has not lost hope that Santa will deliver for him a special Christmas present.
“You never know,” O’Hara said. “Stranger things have happened.”