Thu, Dec 16, 2010
By Alysia Santo
Attorney John O’Hara, 49, is waging a campaign to expose the treatment that his mentor and friend, Judge John Phillips, endured in the last years of his life. O’Hara is representing Reverend Samuel Boykin, Phillips nephew and administrator of the estate in a $10 million wrongful death suit against the residential facility where Phillips died in February of 2008.
The suit, which was brought early this year, alleges that Phillips was “confined against his will for approximately eight months by the defendants at their facility,” and that as a diabetic, he did not receive the proper diet and frequently missed his insulin shots.
It’s sharp contrast to Phillips’ 13 years on the bench in the Brooklyn civil court, where he was nicknamed the “Kung Fu Judge” because of his 10th degree black belt. In those days he was an elected trustee of the people, tasked with dispensing justice.
But O’Hara’s crusade for Phillips started long before he died. He says that Phillips’ trouble began after he started telling people he wanted to run for District Attorney in 2000 against Charles “Joe” Hynes.
Soon after Phillips made his announcement to run, Assistant District Attorney Steven Kramer became concerned when stopping by Judge Phillips’ property to investigate an alleged real estate crime. According to Orlando Rivera, a spokesperson for the DA’s office, “Justice Phillips’ home was in disarray,” and the judge appeared “disoriented and uncared for.” Kramer began writing letters to local judges recommending that a “law guardian be appointed to oversee Justice Phillips’ finances and protect his numerous and valuable assets.”
Judge Leonard Scholnick placed Phillips in the State Supreme Court’s guardianship program, and over a period of 8 years Phillips estate went from an estimated $10 million to owing $2 million in taxes. This all under the watch of a series of five different court appointed guardians whose responsibility was to protect Phillips interests.
O’Hara and other defenders of Judge Phillips say this is one of several examples of the Brooklyn District Attorney, Charles “Joe” Hynes, using his power and influence over the court to undermine political challengers.
O’Hara’s perspective on the DA’s office comes from personal experience: after successfully running candidates against the Brooklyn Democratic machine in the early ‘90s, District Attorney Hynes indicted him for allegedly breaking a number of election laws. After three trials and three appeals he became the second person to be convicted for false registration and illegal voting since Susan B. Anthony in 1873. He was disbarred in 1997 but in 2008, following Phillips’ death, he applied for reinstatement to the bar.
In October 2008, the members of the New York State Committee on Character and Fitness granted reinstatement in a unanimous vote. “Mr. O’Hara, accurately it appears, claims the machine went gunning for him,” stated the committee’s report, which concluded that O’Hara had been the victim of a political prosecution.
Sandra Roper says she suffered at the hands of DA Hynes as well after she ran in Judge Phillips’ place for DA in 2001. After her run, she spent the next couple of years in court, defending herself against felony theft charges that she felt were brought about to punish her for challenging Hynes in the election. After she was found not guilty, she pursued Hynes on a selective prosecution charge but it was dropped.
Phillips believed he was suffering from a political persecution as well. In a letter dated April 11th, 2001, Phillips wrote to his attorney, Dominick Fusco, that the Kings County DA’s office “is behind a plan to declare me incompetent prior to my announcing my candidacy in the democratic primary against Mr. Charles Hynes.”
“What happened to Judge Phillips is so bad. I’ll never let this go,” says O’Hara. His recent reinstatement to the New York bar is O’Hara’s last hope to get the late justice he feels Judge Phillips so strongly deserves.
It is a twisted ending to a long friendship. O’Hara and Judge Phillips had both been mavericks in the Brooklyn political scene, challenging the established Brooklyn Democratic Party machine.
The two men met in 1976, when O’Hara was 15 and Phillips was 51, while O’Hara was volunteering in a state assembly campaign at the Board of Elections in downtown Brooklyn. “I had always heard about the Kung Fu Judge,” says O’Hara. “When I met him he was larger than life. He invited me to come out to his campaign headquarters in Bed Stuy.” O’Hara would pedal his bike the six miles from Bay Ridge to help Phillips hang posters and get ballot signatures.
When O’Hara was applying to law school, Phillips, now a judge, mailed and phoned a recommendation for all 12 schools that he was applying to. “I told him I was driving a cab one night a week extra to get the money orders for the applications. He kind of laughed because I didn’t have a checking account.” O’Hara chokes back tears remembering when he went to go pick up the recommendations from Phillips. “Inside each file he had written out the check for the application fee for each law school. I remember these things like they were yesterday.”
After Phillips lost his reelection bid in 1986, he tried to run again in 1990 and 1991. Signatures were intensely scrutinized and Phillips applications for a spot on the ballot were denied both years. In 1992, O’Hara helped him get on the ballot, and the voters elected him. “I made sure all the petition technicalities were there,” says O’Hara. As the years went by, the friendship evolved. “Even though he was twice my age and a different color, we just had a kind of understanding, “ O’Hara says. “We had a mutual admiration for each other that had grown over time.”
O’Hara’s habit of running campaigns against establishment Democrats was sidelined in 1996 with his indictment by the DA’s office for casting an illegal vote from a residence which was not his “principal and permanent address.” The charges were prosecuted three separate times, a rare occurrence, particularly for a nonviolent crime. A Brooklyn courthouse insider who spoke to Brooklyn Ink anonymously, said people who knew about the prosecutions saw it as corrupt, “Everyone could smell a rat.”
The DA’s office responded through an emailed memo. “We cannot comment or engage on a conversation beyond what is given to you on these documents,” writes spokesperson Orlando Rivera. In a play by play of the trials and appeals, the DA’s office lists the evidence against O’Hara, yet does not directly respond to any of the questions surrounding the allegations being made by O’Hara and others.
O’Hara was disbarred in 1997 and fined $20,000. Over the next 10 years he fulfilled 1500 hours of community service in the same parks that he used to campaign in. One of them was even across the street from his high school. “I called it the chain gang,” he says. After being recognized one day, O’Hara bought a green jacket and pants. “I wanted to blend in with the park employees.”
After O’Hara’s conviction in 1997, he found out that Judge Phillips had been trying to run for DA in that year’s election, but had been taken off the ballot over his petitions for the third time. “I tracked him down and I said Judge, why didn’t you tell me you were running for DA, and he said ‘I wanted to surprise you’,” says O’Hara. “He told me he wanted to take Hynes out because of what he did to me.”
The pair started planning out Phillips’ run for DA in 2001. “We knew this guy could be taken out,” says O’Hara. “Phillips was a black man with a lot of money. That’s what made Hynes nervous.”
Weeks after telling friends he was running against Hynes, Phillips was visited by doctors under a court order from Justice Leonard Scholnick. In sealed court transcripts from a hearing about Phillips’ medical status in 2001, Dr. James J. Lynch, a Brooklyn-based psychiatrist, testified that he became alarmed during the examination when Phillips started telling him why he thought he was there. According to Lynch, Phillips said, “the District Attorney is involved, specifically an Assistant District Attorney, but that person was part of the conspiracy against him, was trying to take his funds, take his property.”
Two different doctors testified that Phillips was suffering from early stage dementia but that the condition was not putting him in “acute danger” and that with a “home attendant” to help him clean, cook, and shop, it “would be an okay situation.” The same day as the testimony, Phillips was placed under the control of the first of almost a half-dozen court-appointed guardians. His person and his property were now under the direction of the Brooklyn court system – a system in which he himself had once presided.
In an emailed response from the DA’s office, Rivera attached a memo saying that Judge Phillips was placed into a guardianship program because ADA Kramer was concerned about his mental health and “sought to help.” It was all done to protect the judge, since Phillips was “considered a friend and mentor by many people in the District Attorney’s office.”
In 2004, Phillips was taken against his will to East Haven Nursing and Rehab in the Bronx. Ezra Glaser, Phillips’ attorney during his time there, says in his experience with guardianship it is unusual to declare someone incompetent during the early stages of dementia. “The fact that he [Hynes] has such extraordinary care for an old man that wants to run against him just seems a little bit odd to me,” says Glaser.
Officials at East Haven upheld an order from Brooklyn Judge Michael Pesce saying Phillips couldn’t receive any mail, phone calls, and visitors were limited to a short list of people, at times being denied access completely. John O’Hara was horrified, and went into action. “I held a demonstration in front of Pesce’s house. I would take the files Phillips was receiving, many of which became sealed, and I would mail them to reporters everywhere.”
When O’Hara was denied access to Judge Phillips, he snuck into the building. “I got Phillips on tape saying get me out of here, they are holding me hostage,” says O’Hara, who then passed the tapes to a reporter at the New York Post. A series of articles ensued, with titles like “’Prisoner’ Judge Bids for Liberty.” (Grace Bargrese, an employee of East Haven who was around Phillips during his time there said she was “not interested in sharing any information” about Phillips.)
Samuel Boykin, Phillips’ nephew, also fought to help Phillips. “They used a court order to put a person in a nursing home against the family members’ will,” says Boykin. “We challenged the court’s position, we wanted to make his golden years more comfortable. But they denied that every time.”
After two and a half years, Phillips was moved from East Haven to Prospect Park Residential. Eight months later, Phillips died in the elevator of what O’Hara calls “his nursing home jail.” O’Hara and others close to Phillips say the residence failed to properly provide for his diabetic needs.
According to court documents, since 2001 Phillips had gone through five different court appointed guardians and three judges. His estate was effectively robbed. All 12 of his properties, which consisted of multiple apartment buildings and storefronts across Brooklyn, were sold. His assets, which totaled over $10 million, were now in the red, where they remain. According to court documents, Phillips estate owes the IRS $2 million. In a summary by the last court appointed guardian, James Cahill, not one of the guardians ever filed a tax return and not one of them has ever been brought up on charges, although the Committee on Character and Fitness disbarred one of the guardians, Emani Taylor, for embezzling Phillips’ funds.
When O’Hara realized that Judge Phillips would not be able to run for DA, he looked up the name of a civil rights attorney named Sandra Roper, whose law office happened to be just around the corner from Phillips’ office. Roper was well known in the Brooklyn community, and had recently met with Phillips to discuss running on the same slate for a seat in the city council. She had worked for the NAACP, and had admired Phillips both as lawyer and judge. O’Hara and Roper had never met, but O’Hara suggested she switch her campaign to run for DA’s office – which would fill the slot that Phillips couldn’t.
Roper demurred at first. But then she started hearing the stories about what had happened to Phillips. “People on the block mentioned some police-looking folks had come and scooped up judge Phillips and took him,” says Roper. “No one knew where he was at that particular time. Soon I got the whole story about O’Hara and Phillips. And that’s when I made my decision to run for DA.”
Peter Sweeney and Eileen Nadelson joined the opposition ticket to run for the judgeship alongside Roper. The campaign had almost no money. “People who run for school council spend more money,” says O’Hara. But they managed to line up the signatures needed to get on the ballot. Two hundred volunteers over the course of two weeks gathered 12,839 petitions.
The legal backlash came quickly. Attorneys for Hynes sent investigators to the homes of Ropers petitioners. According to court documents, one hundred seventy-two witnesses were subpoenaed, including Roper’s father – who had died 11 years prior.
“As surreal as it was when I found out what happened to Phillips and O’Hara, what ensued after was beyond surreal,” says Roper. In what is believed to be the largest election-law matter in Brooklyn history, over 10,000 signatures were scrutinized. After six weeks in court, the judge ordered Roper’s name removed from the ballot, along with the two candidates for judge.
Yet the New York State Appellate Division reversed this decision two days later. Judge Nadelson and Judge Sweeney won their seats, but Roper ended up losing the election. Despite her loss, she showed the DA’s vulnerability. As an unknown female candidate with almost no funding, Roper had managed to get 37 percent of the vote.
Roper’s legal woes continued when in 2003 she was indicted in the Brooklyn Supreme Court on felony theft charges after a former client, Mary Ward, filed a complaint with the DA’s office charging that Roper had cheated her out of $8,000. Roper had already been exonerated from these charges after Ward filed a complaint with the Bar Association Discipline Committee.
It is unusual for any attorney to be prosecuted on charges that have already been exonerated by the grievance department due to the exhaustive nature of the reviews. According to court documents, it was revealed at trial that Ward had a long history of filing complaints against attorneys. “For [Hynes] to allow this to go forward even though I had been cleared speaks volumes,” says Roper.
The trial ended in a hung jury — eight of the jurors found her innocent. In 2006, Roper filed a lawsuit against Hynes and the New York State Unified Court System, alleging that a “selective prosecution” had cost her a job as a court attorney and deprived her of her right to run for office. “I wasn’t suing about money, I wasn’t suing about getting my job back, I wanted vindication,” says Roper. Ezra Glaser, Phillips’ and O’Hara’s former attorney, represented her. “A prosecutor has immense powers,” says Glaser. “He had immunity to act as a government actor, so the charges were dropped.” Phone calls and emails about the Roper case were not returned by the DA’s office.
“People who fight the system pay a big price,” says Judge Nadelson, who retired last year. “The party is making the rules about who can be a judge, or a politician, or anything else. It’s scary when you think about it.”
It was after delivering the eulogy at Phillips’ funeral in February 2008 that O’Hara decided to go back to his beginnings – as a lawyer in the courts. As Roper, O’Hara, and Glaser stood outside together, watching the casket being put into the hearse, Roper said, “You know, it just doesn’t seem like its really final.” The next day O’Hara and Glaser starting working on O’Hara’s motion for reinstatement to the bar.
While Roper has stepped out of the political arena, she has researched and written pardon requests for O’Hara four times. Glaser recently filed this year’s pardon request to the governor.
“You become consumed with your own vindication,” says O’Hara, who says he is not done with the Brooklyn DA office yet. “I am considering running for DA in 2013.”
For more details on the looting of Judge Phillips estate read: The Fall of the Phillips Empire
For a closer look at the ins and outs of the O’Hara and Roper trials read: Meet the new boss: Man vs. machine politics in Brooklyn