John O'Hara - False Accusation / Withholding Evidence

O'Hara, John ; fraud; NRE: perjury/false accusation, no crime, prosecutor misconduct, misconduct that is not withholding evidence

2019 WL 2326040; E.D.N.Y. 5/31/19; civil suit

"O'Hara is an attorney who has periodically resided on 61st Street in Brooklyn...His former girlfriend, Magaly Lucas, owned a brownstone on 47th Street, which is in a different election district, and in October 1992, he moved into the basement apartment of the brownstone...While he maintained his lease on 61st Street because it was a rent-stabilized apartment, he changed is address to 47th Street with Chase Bank, American Express, the Office of Court Adminstration, and the New York City Campaign Fnance board...He received mail at the 47th Street address and spent most nights there...He lived there for approximately one year, until November 1993, when Lucas sold the brownstone to three of her tenants, causing him to move to 4th Avenue for a short period until he eventually moved back to 61st Street."

"O'Hara is a registered Democrat and was a political activist in the 1980's and 1990's. In 1989, he supported DA [Charles J.] Hynes in his campaign for the Office of Kings County [Brooklyn] District Attorney ('KCDA')...DA Hynes was in office from 1989 until 2013, when he lost the election to...Kenneth P. Thompson...As part of his campaign, DA Thompson highlighted certain abuses of DA Hynes' prosecutorial power, including using his power to prosecute O'Hara for election fraud."

"In 1990, O'Hara ran against incumbent Assemblyman [James F.] Brennan in the Democratic Party for a seat in the New York State Assembly... DA Hynes promised that in excgane for O'Hara's support in his bid for election, he would support O'Hara in his campaign against Brennan...However, he later made an agreement with Brennan that would require O'Hara to drop out of the race, leaving Brennan unopposed for the Assembly, and run unopposed for Democratic State Committee Leader instead. ADA [Dino] Amoroso presented this deal to O'Hara, but O'Hara declined and told ADA Amoroso that he will be running for state Assembly and expected DA Hynes' support as promised...He did run without Hynes' support and lost."

"Over the next several years, O'Hara ran for office five more times against Assemblyman Brennan and supported other candidates running against Brennan and DA Hynes."

"O'Hara alleges that after the 1990 election, DA Hynes and Assemblyman Brennan developed a 'personal and professional animus' toward him...O'Hara claims that they, along with other[s], conspired to retaliate against him by conjuring up election crime and indicting and prosecuting him for that crime...According to the complaint, in 1994, Assemblyman Brennan, [John] Keefe [Brennan's Chief of Staff], and [John W.] Carroll [Brennan's attorney] hired a private investigator to report on O'Hara's residency as a basis for eliminating him as a political opponent...[T]hose efforts were ultimately unsuccessful..."

"In 1996, DA Hynes arranged a meeting at the KCDA with [ADA Angelo M.] Morelli, ADA [John P.] O'Mara, Assemblyman Brennan, and [John] Keefe to discuss a plan to prosecute O'Hara for allegedly voting out of a residence in which he did not live, knowing that the charges would be baseless...Assemblyman Brennan pledged his support for ADA Morelli's Democratic nomination for [County] Court Justice in 1997 in exchange for ADA Morelli pursuing a criminal prosecution against O'Hara... ADA Amoroso and Carroll went along with this plan...O'Hara alleges that the DA Defendant and State Defendants falsely clamed that the BOE [Board of Elections] was investigating O'Hara for violating the election laws, and it wanted the assistance of the KCDA...They allegedly induced [Jeffrey] Waite, an attorney at the BOE, to go along with this plan.

"After Defendants agreed to prosecute O'Hara, he claims that he was under constant surveillance...More specifically, a black car registered to the KCDA was frequently parked outside his home, his mail was held at the post office until the KCDA had an opportunity to search through it, the KCDA subpoenaed his bank for his bank records, Investigator [Allen] Presser and others from the KCDA frequently showed up at his 61st address, his parents' home, and his campaign headquarters to ask questions about him, and children who played outside his 61st Street address were threatened that if they did not tell individuals from the KCDA something 'bad' about O'Hara, they would be pulled out of their classrooms. O'Hara alleges that these surveillance tactics were orchestrated by ADA O'Mara, Investigator Presser, Assemblyman Brennan, Keefe, and Carroll ...and that they used the [NYPD] to aid their surveillance and investigation."

"O'Hara also alleges that ADA O'Mara, Waite, and investigators from the KCDA repeatedly intimidated his 83-year-old landlord at his 4th Avenue address by, among other things, going to her coffee shop on the ground floor of the building and harassing her with the intention of eliciting from her that O'Hara did not live there...The ongoing harassment due to O'Hara's presence caused her to evict him from his 4th Avenue home and force him to move back to his 61st Street address."

"Because these tactics did not produce incriminating evidence, ADA O'Mara, Investigator Presser, Assemblyman Brennan, Keefe, and Carroll agreed to falsify evidence...More specifically, they agreed to elicit false testimony from the three men who lived at and eventually purchased the 47th Sreet brownstone from Lucas, to say that O'Hara never lived there...In exchange for this false testimony, the DA Defendants agered not to prosecute them for running ther own illegal enterprises."

"O'Hara was arrested in October 1996 and was charged with one count of offering a false instrument for filing...one count of false registration...and five counts of illegal voting..."

"O'Hara was tried three separate times for election fraud...The main issue in each trial was whether O'Hara lived in the basement apartment in the 47th Street brownstone between November 1992 and November 1993...At O'Hara's first trial, he intended to call Lucas as a witness to testify that she owned the brownstone and that he did live there at that time. However, ADA [John P.] O'Mara threatened that if Lucas testified on O'Hara's behalf, he would prosecute her for an alleged real estate scam involving the three tenants who purchased her brownstone and that she would lose her law license. As a result, Lucas did not testify...On May 13, 1997, O'Hara was found guilty on all seven felony counts and was sentenced to five years of probation, 1,500 hours of community service, and $14,192 in penalties...Given this conviction, he was disbarred from the practice of law."

"In August 1998, the...Second Department...reversed O'Hara's conviction because of a missing witness charge [i.e., jury instructon]...In anticipation of O'Hara's second trial, ADA [John P.] O'Mara intimidated Lucas again to prevent her from testifying ...After Lucas submitted an affidavit in support of O'Hara's post-conviction motion, ADA O'Mara subpoenaed her tax returns and other financial documents to give the impression that he was going to prosecute her for something she did not do...As a result, Lucas refused to testify in the third trial...ADA O'Mara also used intimidation tactics on other witnesses, such as threatening to prosecute one witness for perjury, which would cause him to lose his public housing, and to take away an award another witness was going to receive at the KCDA."

"O'Hara's second trial resulted in a mistrial, but his third trial resulted in a conviction...He claims that ADA [John P.] O'Mara and Investigator [Allen] Presser not only introduced the same false testimony as they did before, but also created new incriminating eidence...The Second Department and Court of Appeals affirmed his conviction."

"On October 6, 2009, O'Hara was reinstated to the New York State Bar, which found that it 'ha[d] grave doubts that Mr. O'Hara did anything that justified his criminal prosecution...Further, after DA Thompson won the election in 2013, he created a Conviction Review Unit to examine many troubling convictions obtained by DA Hynes, including O'Hara's conviction...On January 12, 2017, the KCDA vacated O'Hara's conviction because '[t]he People recently discovered that a material witness who testified against [O'Hara] at trial provided false and misleading testimony which was of such character that had the witness testified truthfully, the verdict would have been more favorable to [O'Hara].'"

NRE synopss (by Maurice Possley):

"O'Hara asserted -- accurately -- that he was the first person to be convicted of illegally registering and voting in New York since Susan B. Anthony in 1873.

"In January 2015, O'Hara's attorney, Joel Rudin, filed a motion to vacate O'Hara's convictions. The motion contended that O'Hara's conduct was not considered a violation under New York civil law and cited new evidence that numerous 'prominent figures,' particularly in Brooklyn and including Hynes, had done the same thing and had not been prosecuted. At about the same time that O'Hara was charged in 1996, Hynes listed his voting address as a municipal office building, which had no living quarters.

"Brooklyn [DA] Ken Thompson's Conviction Review Unit began a re-investigation of the case. In 2016, investigators interviewed Josephine Vales, who recanted her trial testimony that the basement apartment was uninhabitable. She said that in fact the apartment had been renovated -- as O'Hara testified at the trial.

"On January 12, 2017, Acting Brooklyn [DA] Eric Gonzalez requested that O'Hara's convictions be vacated. The motion was granted and the charges were dismissed.

"In August 2017, O'Hara filed a civil rights lawsuit seeking compensation." [This appears to have been settled in his favor.]

[All emphases added unless otherwise noted.]