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."

The concerns date back decades. James Yates, now counsel to Assembly Speaker Sheldon Silver, as a judge in 1979 helped amend the discovery provision in New York, which he calls “the worst in the country.” The reforms required that certain basic pieces of evidence be shared, including police reports, which had previously been barred from discovery.

The reform passed, but the problem remained. What was laid out in 1979 “was supposed to be a floor, ” Yates says. But “most judges read it as a ceiling. That’s been the big problem in the law.”

He recounts the fictional courtroom comedy My Cousin Vinny, in which justice is served when the title character, an amateur lawyer played by Joe Pesci, saves two young men locked up in an Alabama jail for a murder they didn’t commit. Vinny uncovers evidence showing that the only witness to the crime had trees blocking her view and was looking through a dirty window. He gets police records revealing that people matching the description of the perpetrators had been arrested in the neighboring country.

Out-reformed by the Lone Star State

Had the trial taken place in Albany rather than Alabama, Yates says, Pesci’s character wouldn’t have had access to the information about other arrests, the witness's name or statements, and maybe not even the name of the accuser. They were lucky to have been arrested in Alabama. “The kids in My Cousin Vinny would still be in jail in New York,” he says.

If they had to be arrested in New York City, they might be wise to choose getting nabbed in Brooklyn. Former Brooklyn District Attorney Charles Hynes voluntarily introduced a discovery-by-stipulation policy that eliminates some of the process and wait time for defendants to receive Brady material. There’s nothing in current New York law that says prosecutors can’t turn over their files early in the process—just that they’re not required to do so without the defendants motioning the court.

Still, Brooklyn is no panacea. Prosecutors are only required to turn over “Brady” material as it's read under the current law—meaning they may still omit interviews with witnesses whom they will not call to testify, so long as prosecutors believe the information is not exculpatory, meaning that could lead to the exoneration of the defendant.