City Limits: Will New York Follow Texas In Criminal Justice Reform?

Alberto Ramos was a 21-year-old college student and part-time substitute teacher’s aide, aspiring to be a teacher, when he was accused and then convicted in 1985 of raping a five-year-old in the Bronx day-care center where he worked.

In a case based largely on the child’s sworn testimony, Ramos was accused of taking a girl into the Concourse Day Care bathroom during nap time. She was found to have vaginal bruising and her grandmother testified that when she picked her up from school, the child was crying. Amid media-fueled hysteria over a wave of child sex abuse in day-care centers, Ramos was found guilty.

Joel Rudin, who laid out Ramos’ case in The Fordham Law Review in 2011, writes that when Ramos was convicted of two counts of rape in the first degree “He screamed in agony, ‘Kill me.’”

In 1992, the conviction was overturned after the alleged victim’s mother filed a civil suit against both the New York City-funded day-care center and Ramos. The city’s insurance settled, but a civil defense attorney—who was able to obtain evidence that Ramos did not have access to for his criminal case—believed Ramos was innocent. The lawyer got permission to share the information with Ramos, who had been suffering severe abuse in prison for seven years on an 8-and-1/3 to 25-year sentence as a child rapist.

Among the omissions that could have aided in Ramos’ defense was a log showing that the grandmother who testified against him had not, in fact, picked the girl up from day-care that day in 1984. There was evidence showing other reasons for the child’s vaginal irritation and an interview in which the girl had initially denied Ramos raped her.

None of it had been turned over.

In 1963, the Supreme Court decided in Brady v. Maryland that, in criminal cases, prosecutors must disclose all evidence that could be “material” to the defense.

Yet when a criminal case is brought in New York State, evidence is not shared automatically with the defense. Instead, defense attorneys must file motions for evidence, and prosecutors are left to decide what constitutes “Brady material” that they must show the other side. Some argue that judges have discretion to force prosecutors to turn over more, but most don’t interpret the statute that way, according to Susannah Karlsson, a special litigation attorney for Brooklyn Defender Services.

Defense attorneys have long pointed to the role of New York’s restrictive discovery statute, Article 240 of the Criminal Procedure Law, in laying the groundwork for wrongful convictions by providing cover for prosecutors to withhold Brady material and allowing them to railroad defendants before trial.

But as DNA evidence has led to a mass of exonerations in recent years and stories like Ramos’ have surfaced, the movement to replace Article 240 has been taken up by a growing coalition of stakeholders lobbying lawmakers and rallying grassroots support. The calls to fix New York’s discovery statute include law enforcement and corrections officers, as well as lawyers, judges and the wrongfully accused—all echoing what Judge John P. Collins said in his opinion overturning the Ramos conviction, that an “unjust” conviction “reflects unfavorably on all participants in the criminal justice system.”

They’re pushing to replace or amend the state’s discovery statute by the end of this legislative session and they are cautiously optimistic that they’re gaining ground.

A history of concern

It is no wonder that Ramos’ innocence only emerged through an action in civil court, where a policy of showing the defense the entire prosecutor’s file prevails.

New York’s discovery law is considered one of the most restrictive in the country.
Justine Olderman, managing attorney of the criminal defense practice at the Bronx Defenders, which represents indigent clients facing charges, explained that most district attorneys interpret Article 240 to mean that the only evidence they must make available early on are statements made by the defendant and scientific texts or reports.

“Otherwise, that’s it,” she said, adding, “Most evidence is witnesses, most evidence is witness statements, most evidence is witness testimony.” Most evidence, that is, is the kind that defendants “don’t get access to until trial.”

By Kate Pastor

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