Pardon the Troublemaker
My friend John Kennedy O’Hara, of Brooklyn, NY, has been called a “political street-fighter,” a “mad dog,” a “dissident.” Among the incumbents who he tried to unseat in Brooklyn he was considered a troublemaker and a fool. He was also, it was said, a felon. When the district attorney called for his arrest as a “criminal voter” in 1996, O’Hara dismissed the charges as a joke. When he surrendered to the DA’s detectives, they cuffed him and hauled him into central booking in his suit and tie – O’Hara was a lawyer at the time running for a seat in the New York State legislature – and walked him into a room of peeling plaster. They listed for him seven felony counts: O’Hara had allegedly voted from a sham address seven times in the early ‘90s, and only now, years after the fact, the cops were fingerprinting him with an old worn-out ink pad. Then they flashbulbed him for the mug-shot, and took him to a holding cell where the black kids who are central booking’s main customers laughed when O’Hara told them the charge. “Lookit,” the kids marveled, “they’re lockin’ everybody up.”
If voting was the crime, O’Hara, 36 years old at the time, was a true recidivist. He was a “prime voter,” in the electoral parlance, one of those citizens who votes not just in the big races for mayor and president but in primary elections and special elections and in obscure local elections for school boards and the like. He’d probably voted 50 times since he came of voting age, he was proud of the fact, and he was sure he’d never done it illegally. The courts concluded otherwise: He would end up with the honor of being only the second person in New York State history to have been convicted on criminal charges for the act of voting. To my knowledge, the only other New Yorker to achieve this status was Susan B. Anthony, in 1872.
There was nothing much special about the guy, except for a lunatic love of politics. He grew up in a working-class neighborhood of row-houses in Brooklyn, in the run-down part of Bay Ridge, his mother a homemaker, his father a beer salesman for Ballantine raising a family of five kids. O’Hara’s family left Brooklyn when he was 15, in a long-planned move to Manhattan’s Upper East Side. The change was intolerable to O’Hara – he didn’t like the noise, the crowds, the strange accents. Brooklyn was his home. Having persisted in his complaints, O’Hara at age 15 found himself living on his own in a Bay Ridge apartment that his parents said they would pay for so long as he finished high school. He worked as a dishwasher at a steakhouse, where the gap-toothed cooks gave him leftovers. He lived, as he tells it, a liberated existence, while his classmates in school were having dates with mother surveilling from the kitchen. “This was the 1970s, the best decade in New York history, drinking age was 18 but no one cared. No DWIs, no seatbelt laws. Girls were all over the place. There was the pill, and no AIDS, and women’s lib was fun back then. People lived it up, they were freer, they weren’t so uptight about the money thing. Everyone was poor – in Brooklyn anyway – and no one knew it. Rents were nothing. It was a different time.”
Getting laid and drinking all night was great, of course, but what mattered was politics. At age 11, O’Hara was working the Bay Ridge storefront for the doomed George McGovern campaign in 1972, handing out fliers. At age 16, he was muckraking for his school newspaper and eventually got the principal of his high school fired for not having a principal’s license. At 18, he was running for the local school board (he lost). He later got his law degree, after failing the bar five times, and then, in the 1990s, he sought higher office: the city council, the state senate, the state assembly. He had a manic indifference to loss, and, for the most part, he lost big. When he himself failed to make the ballot, he was busy running other candidates, driving petitions through the byzantine approval process and fielding insurgents to oppose the candidates favored by the county Democratic machine. “You don’t have democracy,” he said, “if you don’t have an opposition.” The cost to his opponents was cash and time, and not a little portion of their dignity, forced as they were to participate in the democracy – debate, shake hands, make promises, talk to constituents, answer questions about laws they’d passed, votes they’d missed, tax dollars they’d spent. These were burdens no smart incumbent need endure, and O’Hara’s enemies, naturally, wanted him “muzzled and shot” (as one observer put it to me).
So the Brooklyn district attorney, one Charles “Joe” Hynes, looked for anything and everything he could to indict O’Hara, examining his bank accounts and credit card slips and his rent leases and his auto registrations and his phone records and interrogating his neighbors and friends and his postman and his mother. The DA emerged from this fishing expedition with one of the strangest prosecutions in the history of Brooklyn law. Very simply, it was discovered that in 1992 O’Hara registered to vote from the second of two apartments he maintained in Brooklyn. Under New York State election law, tortuously construed – there’s no other way to construe it in New York – the second apartment appeared not to fit the parameters of what the election law defines as a “fixed, permanent and principal home to which [the voter], wherever temporarily located, always intends to return.” This specific statute in the election law had never before been applied criminally with any success, and the vagueness of its language in an age of voter mobility was such that it had been determined unconstitutional in at least one federal lawsuit. (How to deal with kids in dorm rooms who vote? And the homeless? And those among the very rich who maintain three, four, five homes – which of them principal and permanent?) The irony was that in O’Hara’s case the statute was being leveled against a man who’d never settled more than a mile from where he was born. Arrested in 1996, convicted in criminal court in 1997, O’Hara was nonetheless told, to his shock, that he had registered from a “sham” address. Perhaps the judge in the case – who blithely stood by as the prosecution lied, distorted facts, intimidated witnesses – was a little too close with the people who wanted O’Hara muzzled and shot. The sentence was dispensed accordingly: O’Hara got five years probation, was fined $20,000, ordered to complete 1,500 hours of community service, stripped of his right to vote, disbarred as an attorney, and forced to quit the law firm where he worked as an associate. The fine, in addition to hundreds of thousands of dollars in legal fees, left him broke, heading toward bankruptcy. For his community service he was dispatched to clean garbage in parks where he used to campaign.
That was 14 years ago. Three trials, four appeals, millions of tax dollars were dedicated to his ruin – all in pursuit of the charge of illegal voting. It’s been a stirring success, though from what the record showed, O’Hara did nothing wrong. I ended up writing about his case for Harper’s magazine, and we became friends. We drank late at night at cheap bars that served quiet old men. Around 5 a.m., after too much Budweiser, O’Hara liked to philosophize. We were talking about the Rehnquist bench and the case of Bush v. Gore. “People think that judges are like priests: pure,” he told me. “But they’re not pure. Look at Brooklyn’s courts – look at America’s courts! How different was the Rehnquist decision in 2000 – a 5-4 decision, an election hijacked by partisanship – from the bought-off, paid-down, buttoned-up decision of a Brooklyn judge watching out for his man? The difference is the level of office, but the principle is the same. It’s the court system that keeps us civilized. It’s in the courts that we expect the fair settlement of our disputes. When the courts fail, society fails. It may take 20 or 30 years, but society will fail. A corrupt court system produces – think about it – terrorists. The aggrieved parties get shafted again and again in a system they’re told again and again is fair. That’s where, if you’re a rebel, rebellion starts. That’s where, if you’re a psychopath, terrorism starts. But most people do neither: they drop out, they retreat, they go underground, they stop participating, they become non-citizens. And society fails.”
When in 2003 he filed a petition of habeas corpus in federal court, he took to quoting Sandra Day O’Connor on the sanctity of the habeas in England, where the statute was conceived in the 1600s. Habeas was “a beacon of individual liberty against the gloom of tyrannical government,” said O’Connor, and when it leapt the ocean to the New World, where “royal governors were known to lock up ‘troublemakers,’” the local courts “were known to issue writs of habeas corpus to release those troublemakers.” Now O’Hara is seeking a similar kind of writ in the form of a pardon from the governor of New York State. Last year, after more than a decade in purgatory and with no livelihood, he was reinstated to practice law, following the conclusions of a review committee for the state bar that reported “grave doubts Mr. O’Hara did anything that justified his criminal prosecution.” The report from the committee also noted that “being an attorney in good standing will help him continue to assist those he believes have been treated unjustly by the legal system.” Being an attorney with a felony conviction presents its own obstacles, given that a client released on bail or on probation or parole who consults with O’Hara violates the conditions of release – after all, they’re consorting with another felon. I happen to think we need more attorneys like him, who know firsthand what it means to be shafted by the courts. For his part, O’Hara wants his name cleared at last. A pardon is the only remedy left to him to do that.
You can find John O’Hara’s petition to New York State governor David Paterson at www.freejohnohara.com.
CHRISTOPHER KETCHAM, a freelance writer in Brooklyn, NY, is writing a book about secession movements. Contact him at firstname.lastname@example.org