Judge loses bid to have evidence claim dismissed
Former Assembly candidate convicted for illegal voting
A Saratoga Springs judge and his co-defendants lost their bid to keep a state Board of Election memo a secret, allowing a former state Assembly candidate to move forward with his claims that evidence used to convict him 25 years ago was fabricated.
A Oct. 22 decision by Senior U.S. District Judge I. Leo Glasser in Brooklyn ruled John O’hara has the right to see the report prepared by now City Court Judge Jeffrey Wait, a former investigating attorney with the Board of Elections, that ultimately disbarred, fined and sentenced O’hara to cleaning toilets and picking up garbage in city parks.
The legal case is moving forward after a U.S. Supreme Court ruling two years ago, which involved a Rensselaer ballot fraud case, that opened up the statute of limitations for suing over alleged fabrication of evidence.
“Wait almost got away with it,” O’hara said. “I got the decision 25 years to the day after I was arrested. The decision came out and now Wait will have to answer for it.”
Wait, who said he did not want to comment, was among the players who investigated O’hara, leading to his 1996 arrest and subsequent conviction for illegal voting. O’hara was only the second person in the state to be convicted on that charge since 1873, the first being when suffragist Susan B. Anthony was arrested for casting a ballot in Rochester.
O’hara, a Brooklyn attorney and community activist, said his legal problems started when he crossed Assemblyman James Brennan by challenging him in a primary. The campaign, he alleges, inflamed Brennan who then sought to destroy O’hara’s “political activities against the ‘Brooklyn Democratic Machine.’”
An undated memorandum from then-acting District Attorney Eric Gonzalez noted that Brennan asked Wait to investigate O’hara and Wait complied.
In 1995, a confidential memo from Wait recommended that the Kings County district attorney “investigate the validity of Mr. O’hara’s voter registration.” Gonzalez’s memo also noted that Wait provided “an incomplete or incorrect interpretation of evidence.”
Wait directed comments to his attorney at the state Office of Attorney General. However, Assistant Attorney General James Thompson did not respond to either a Times Union email or phone call.
Though Wait was hardly mentioned in Glasser’s ruling, O’hara said the decision “is all about Wait” and the reports he filed with the Kings County District Attorney’s office.
“He’s been hoping it doesn’t come out,” O’hara said. “Now I have the right to eight hours of sworn testimony under penalty of perjury. No glib remarks. It’s going be a problem for him.”
O’hara is now seeking $40 million in damages for his arrest and conviction that was vacated in 2017. At the time, Wait told the Times Union he was just “doing his job.”
O’hara would likely never have a chance to see the alleged fabricated evidence if it were not for another case with Capital Region roots. In 2019, the U.S. Supreme Court ruled that embattled Rensselaer County Democratic Commissioner Edward Mcdonough, who was accused of forging absentee ballots in 2009, had a right to sue former county prosecutor Youel “Trey” Smith for allegedly fabricating evidence against him.
Initially, the 2nd Circuit in New York City ruled that Mcdonough could not file suit against Smith because he filed too late. The nation’s highest court overturned the ruling says that the clock starts ticking on the statute of limitations for alleged fabrication of evidence when “criminal proceedings against the defendant have terminated in his favor.”
Thus, O’hara was able to move forward with his suit against Wait and others.
“Now we will get an answer,” O’hara said. “That’s all going to be completed in the next six months. The attorney general will file an answer on Wait’s behalf and we go forward . ... Ultimately in the end, Wait will have to explain to somebody what he has known about this for 25 years.”