Attorney calls judge’s interpretation wrong
Memo says Wait gave incorrect citation of election law in past
A Saratoga Springs judge has been named in a memo from the Brooklyn district attorney’s office for not painting a clear picture of the facts and incorrectly citing election law when, more than two decades ago, he encouraged the state Board of Elections to investigate a state Assembly candidate for voting illegally.
In an undated memorandum from then-acting District Attorney Eric Gonzalez, nowjudge Jeffrey Wait was referred to several times as the catalyst for the state’s investigation and subsequent legal action against John O’hara, events that continue to reverberate today.
At the time, Wait was a special counsel to the state Board of Elections and his 1995 confidential memo recommended the board investigate “the validity of Mr. O’hara’s voter registration,” because O’hara was registered to vote at his girlfriend’s address, not his parent’s. But ultimately, the district attorney’s memo said Wait’s interpretation “contained an incomplete or incorrect interpretation of evidence.”
For example, the memo noted Wait omitted that O’hara was steeped in a primary challenge against incumbent Assemblyman James Brennan, who initially asked for the board investigation in a letter written on his Assembly stationary. The memo also said that Wait did not tell the board that Brennan’s election attorney Jack Carroll had gone after the issue of O’hara’s residency status already — in 1993 and 1994 — and that each time the legal challenges were withdrawn. In addition, Wait did not outline what proof he had that O’hara didn’t live at his girlfriend’s home.
“The report makes clear Wait took a bunch of frivolous election law cases filed by my opponent and twisted the result to suit him,” O’hara said. “In New York, election cases are used by incumbents like Brennan to harass insurgents like me.”
Wait’s investigation led O’hara to be tried three times. In 1997, he was convicted for voting illegally. An attorney and community activist, O’hara was disbarred, sentenced to fiveyears probation, paid $14,192 in fines and penalties and had to do 1,500 hours of community service that included cleaning toilets and picking up trash in 16 parks.
“That conviction was reversed on direct appeal,” O’hara said. “But the damage at that point was great. I was disbarred and on the chain gang.”
As deputy counsel for the Board of Elections, Wait had made several trips at the time from Albany to Brooklyn as part of the investigation into whether O’hara, an activist who challenged the New York City borough’s Democratic machine, had used a fake address when he registered to vote.
Wait declined to comment on the matter noting that he, and eight others involved in O’hara’s conviction, are still deep in litigation. O’hara said he is seeking $40 million in damages because he is a victim of conspiracy, malicious prosecution and fabrication of evidence, among other allegations he is lodging against Wait, Brennan and Carroll.
O’hara is also accusing Wait of concealing “critical exculpatory evidence in his report to the commissioners” at the state Board of Elections in an effort to knock him out as a challenger — as a political favor to Brennan. Now, he’s not surprised Wait won’t comment.
“Wait is a judge,” said O’hara who is known for his scrappy persona. “He knows when to take the 5th.”
In 2017, Wait defended himself against O’hara’s claims, telling the Times Union that year he “was doing my job.”
Gonzalez’s memo unraveled the origins of the on-going saga involving Wait, Carroll and Brennan, who served in the Assembly from 1985 until his retirement in 2016. Among other things the memo notes that Wait “went on to state the law incorrectly” when he reported “if the registrant does not, for example, have ties to the community, vote from the address, own or lease the residence or pay any of the utilities, the registration is likely to be invalid.”
The memo also noted that Brennan and Carroll didn’t always share information with Wait from past civil challenges that they threw at O’hara, including those involving petitions and residency.
O’hara’s conviction is also unique in state history. It was only the second time that someone was convicted of illegal voting. The other was in 1873 when suffragette Susan B. Anthony was arrested for casting a ballot in Rochester decades before women had the right to vote. In her case, she was fined $100, which she refused to pay. The courts let it go and she suffered no further penalty. O’hara was not so lucky.
However, in 2009, the courts restored O’hara’s law license. Four years ago, 20 years after his conviction, O’hara was cleared of the charges and his conviction was vacated. A special hearing commission concluded in court papers that the Brooklyn Democratic party machine “went gunning for him,” because of his long opposition to the party’s handpicked candidates.
In 2019, O’hara filed his lawsuit against Wait, Brennan, Carroll and others involved in his conviction. O’hara received the memo, in which the conclusion is redacted, from the Brooklyn district attorney’s office as part of pre-trial discovery in the case.
“Wait’s confidential memo contained an incomplete or incorrect interpretation to get (the) state Board of Elections to approve his investigation,” O’hara said. “Without that none of this would have happened. And now Wait’s a judge. Wait’s been concealing this for 25 years. Are we supposed to believe this was his one and only scam?”