Most Americans think that such a thumbs down from the nation’s top court would be the end of the legal road.
Not if you can make an appeal for an entirely new hearing stick on the grounds that you were “selectively prosecuted” in the first place.
This is precisely what O’Hara has managed to do. And the result is a rehearing of his case in New York State Supreme Court on July 20.
O’Hara has waged a tenacious, and some would say quixotic, battle against his 1999 conviction for voting fraud.
He was seemingly stopped cold last year by the state Supreme Court when it decided not to consider his appeal in the aftermath of a lower court defeat.
It looked like the end of the story, but that all changed with a magazine article.
It was carried in the December 2004 issue of Harper’s Magazine and alleged that newly uncovered evidence in the case pointed to “selective” or “malicious” prosecution of O’Hara, who is the first American to be prosecuted and punished for voting fraud since Susan B. Anthony in 1876.
Based on the Harper’s report, O’Hara filed for a new hearing with the New York court that originally tried his case. His bid was surprisingly successful.
In addition, an award winning documentary maker has been shooting footage of O’Hara over the past few months as part of a planned film about the whole saga.
Emmy award winner Alex Gibney previously directed “Enron: The Smartest Guys in the Room” and “The Trials of Henry Kissinger.”
Next take? The trials of John O’Hara, political gadfly and perennial candidate.
“I will be placing a motion before the court next week that will request that my conviction be overturned because I was selectively prosecuted by Brooklyn District Attorney Charles Hynes,” O’Hara said of his latest legal gambit.
Hynes, through a spokesman, has repeatedly denied that O’Hara was picked upon and that the prosecution of O’Hara was based on firm legal foundations.
O’Hara said his hearing next week was possible if there was evidence that people in similar situations had not been prosecuted.
“And no one has ever been prosecuted for this three times, only me,” O’Hara said.
O’Hara has been banned from voting in his native Brooklyn because he voted from his girlfriend’s address and not his own home some distance away, during elections in 1992 and ’93.
O’Hara, who ran as a candidate himself, argued that this address, though not his permanent one, was not a false one.
As a result of his voting, O’Hara ended up as a convicted felon. He was sentenced to five years’ probation, fined $20,000, disbarred from his law practice and sentenced to perform 1,500 hours of community service.
His community service will end in October at which point he will no longer have to spend about eight hours a week collecting garbage in a Brooklyn park.
O’Hara believes that his case had set a precedent, one that potentially allows for frivolous or vindictive prosecution of other citizens, specifically for voting while not pledging to one address for a specific period of time.
When O’Hara’s sentence runs out he can, under New York law, regain his voting rights, this despite his felony conviction.
But that won’t be enough as far as he’s concerned. He wants his conviction overturned.
Much of O’Hara’s argument before the State Supreme court next week will be based on information obtained in the course of the Harper’s magazine investigation.
O’Hara believes that it will prove that he was singled out for special treatment because he was a thorn in the side of the Brooklyn Democratic Party “machine.”
“I was first indicted in 1996. It’s been a long struggle but I’m still standing,” he said.