Attorney Convicted of Voting Seeks Pardon

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As you may have heard, things have not been going so well for New York Governor David Paterson, who has announced he will not run for another term.  Another scandal has since come to light (although considering what the previous governor was up to, calling this a "scandal" may be a stretch), leading to speculation that Paterson may resign.  Here's something decent he could do between now and then: pardon John O'Hara.

John O'Hara is a New York attorney and political activist who was disbarred in 1997 after he was convicted of voting in an election district in which he did not "reside."  Apparently, civil challenges to residency under the state's Election Law are common, but criminal prosecutions are rare.  Very rare.  As in, there have only been three, ever, and one of those was Susan B. Anthony, prosecuted in 1873 for the heinous crime of Voting While Female.  You might have thought there were enough serious crimes in any given borough every year to keep each district attorney fully employed, but the Brooklyn DA found time to put O'Hara on trial three separate times for voting from the wrong address.

If that seems a little odd to you, you are not alone.  People who have investigated this prosecution — including the author of this Harper's Magazine article, and the bar committee that recently recommended reinstating O'Hara's license, have concluded that it was politically motivated.  One of the many fun facts about this is that the DA who prosecuted O'Hara, Charles Hynes, turned out to be violating the same law at the time.  Somehow, he neglected to prosecute himself for that.

The law involved defines "residency" as "that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return."  N.Y. Election Law § 1-104(22).  But that hasn't been construed literally by courts, which have held that if someone has more than one "residence," he or she can pick one for voting purposes so long as they have "legitimate, significant and continuing attachments" to that location.  Ferguson v. McNab, 60 N.Y.2d 598, 600 (1983).  Even that has been pretty damn flexible.  One civil case was dismissed although the voter in question could remember having visited his voting address maybe once in seven years.

By contrast, O'Hara had lived in the same neighborhood his whole life, had managed successful political campaigns there and had run for public office several times.  And he didn't leave the district, the district left him, as a result of redistricting in 1992.  He re-registered to vote using an address on 47th Street, which he said was a basement apartment in a building owned by his ex-girlfriend.  He has never tried to conceal the fact that he did this so he could continue to work and run in campaigns in the district.  And under the law, at least as interpreted by courts, he should have been entitled to do that.

I realize that if this were the opening scene of an episode of "Law and Order," you might click over to the History Channel and watch something about Nostradamus.  There is no dead body at the end of this scene, but only because it's hard to draw chalk outlines around due process.  So keep reading.

In 1996, O'Hara was suddenly indicted.  Coincidentally, at the time he was challenging an incumbent politician linked to the DA.  Although, again, there had been only two other prosecutions under this law, ever, O'Hara was charged with seven felonies and was tried three separate times (short history: trial, conviction, reversal, retrial, hung jury, retrial) for the heinous address violations described.  Ultimately, he was convicted, and that was later upheld in a decision that prompted a strong dissent.  People v. O'Hara, 96 N.Y.2d 378 (2001).  Without getting into all the details, the third jury was given a confusing instruction on residency that included both legal standards, and it seems very likely that this was a prejudicial error.  But the majority did not agree, or at least it found some arguments had been waived.

Even assuming that final decision was right for technical reasons, the question remains why O’Hara was prosecuted at all. In his article for Harper's, Christopher Ketcham wrote that he had little doubt it was politically motivated retaliation, and the bar committee that looked into the case in 2009 decided that was probably accurate.  It voted 25-0 to recommend his license be reinstated, and a court agreed.  So, after 12 years, O'Hara can now practice law again, but is still, technically, a felon. 

Slick Rick in 2005_ Getty Images This is where Governor Paterson comes in, or ought to.  O'Hara has filed a petition asking for a pardon, which is something that outgoing executives are known for granting, because they can.  And now that Paterson may be outgoing sooner than expected, this seems like a good time to bring it up again.  O'Hara has pointed out that Paterson has granted a full pardon to Ricky Walters (right), a.k.a "Slick Rick," a.k.a., Guy Who Shot Two People and spent six years in prison for attempted murder.  If Slick Rick deserves a pardon, doesn't convicted voter John O'Hara?  (Who, by the way, should get some extra credit for not going around wearing an eye patch.)

If you want to help out, you can go here to sign an e-petition supporting the pardon request.  Go here to read a personal message of support from Chris Noth, who you all know from "Law and Order" and who 51% of you know from "Sex and the City."  If you sign up, ladies, Chris will personally come over and rub your feet.  No, he won’t, but you should sign anyway.

Link: Free John O'Hara
Link: NY Daily News (2009)
Link: NY Times (list of articles mentioning the case)