At 11:30 p.m. on April 30, 1995, 35-year-old taxi driver Austin Olek picked up two men who hailed him in the rain and agreed to take them to 130th Street and Rockaway Boulevard in Queens, New York City.
On the way, the man sitting behind the front passenger seat asked Olek where he was from. Olek said he was from Africa and the passenger volunteered that he had been born in Guyana.
When the taxi arrived at the destination, the man seated behind Olek put his left arm around Olek’s neck in a chokehold and held a gun in his right hand to Olek’s head. The man on the passenger side vaulted over the seat, grabbed $40 that was on the seat and $100 that was in the glove compartment. Meanwhile, Olek managed to break free of the other man’s grip, and in the process exited the car. The two robbers fled in Olek’s cab.
Olek called police and described the man who had the gun as a black man and the passenger as a Guyanese man. Olek found the cab parked in the neighborhood a few days later, but he did not call police, so no fingerprints were ever lifted from the vehicle.
In May 1995, two men robbed a store in the Bronx and the victim said the robbers were a black man and an Indian man. Detectives showed photographs to the storeowner and he selected the photograph of 22-year-old Racky Ramchair, a native of Guyana of South Asian ancestry who had prior convictions for car theft and robbery, as one of the two robbers.
Detective Robert Winnick then created a photographic lineup that included Ramchair and five other men, using photographs that Winnick said came from a box at the police station that was labeled “Male Guyanese.” The five other men appeared to be African with dark skin, while Ramchair had lighter skin. Because some of the men had different hair, Winnick whited out the tops of their heads. Olek viewed the photographic lineup and identified Ramchair as the robber who said he was Guyanese.
In June 1995, Winnick held a live lineup that included Ramchair and five other men—three of whom were Hispanic and one of whom was black. All five were forced to wear backwards baseball caps to cover their hair and two of them were forced to run black carbon paper over their faces to give them the appearance of facial hair because Ramchair had a beard. Olek again identified Ramchair. The man Olek said had a gun was never found.
Ramchair went on trial in Queens County Supreme Court in May 1996 on charges of first and second-degree robbery. Winnick testified about the photographic and live lineups, and told the jury that Ramchair’s attorney, Jonathan Latimer, was present for the live lineup. Latimer contended the live lineup was highly suggestive because Ramchair was the only Guyanese man in it.
The trial ended in a mistrial shortly thereafter because Ramchair was attacked in jail on Riker’s Island and could not come to court.
Ramchair went on trial a second time in June 1996. Winnick again testified about the lineup and at this trial, he said he could not recall if defense attorney Latimer was present. At the conclusion of the trial, the jury deliberated for a day and was sequestered in a hotel for the night when no verdict was reached. On the following day, one of the jurors suffered a heart attack and was hospitalized. Because the alternate jurors had been dismissed a day earlier, the trial judge declared a second mistrial.
Ramchair went on trial a third time in February 1997. This trial was virtually a replay of the prior trials until the moment when the prosecutor asked Detective Winnick if defense attorney Latimer had been present at the live lineup. After Winnick said that Latimer was present, the prosecutor asked if Latimer had objected to the manner in which the lineup was performed. Winnick said Latimer had not objected.
Latimer objected to the question and argued (outside the presence of the jury) that the prosecutor’s question was improper and the answer was prejudicial because it suggested that Latimer believed the lineup was proper since he did not object. In fact, Latimer told the judge, he believed it would be futile to object and that the best defense was to attack the lineup at trial.
Latimer asked for a mistrial, saying the prosecutor and detective had sandbagged him. He argued that the only way he could counter Winnick’s testimony was if he took the witness stand himself, but that would mean he could no longer be Ramchair’s trial lawyer under attorney ethics rules. The motion for mistrial was denied. During closing argument, the prosecutor specifically told the jury that Latimer must have believed the lineup was proper because he had been present during the lineup and had not objected.
On April 2, 1997, Ramchair was convicted of both counts of robbery. By that time, Ramchair had pled guilty to the other robbery in the Bronx and was sentenced to six to 12 years in prison. He was sentenced to 10 to 20 years in prison for the Olek robbery and the sentence was to be served after he completed his sentence in the Bronx case.
Ramchair’s state appeals were not heard for five years and ultimately were denied. In September 2004, Ramchair filed a four-page hand-written federal petition for a writ of habeas corpus arguing that his state appellate lawyer had provided inadequate legal assistance by failing to argue on appeal that the trial judge had erred in not declaring a mistrial at the third trial. U. S. District Court Judge John Gleeson appointed a lawyer to represent Ramchair.
In October 2005, Judge Gleeson concluded that Ramchair’s appellate lawyer should have raised the mistrial claim on appeal. The judge ruled, “In my view, the prosecutor’s conduct was both unfair and prejudicial to Ramchair. Once the prosecutor implied to the jury that Latimer had a different view of the line-up’s fairness at the time it occurred than the one he expressed at trial, Ramchair needed Latimer as a witness to dispel that false implication. Because, in the circumstances, it would have been untenable to permit Latimer to act as both a key defense witness and the defense attorney, his motion for a mistrial should have been granted.” The judge listed eight separate reasons that compelled the granting of a mistrial.
However, Gleeson also ruled that because that claim had not been raised in Ramchair’s state appeal, Ramchair was required to go back to state court and raise the issue there.
Despite the detailed ruling by Gleeson, the Appellate Division of the Queens County Supreme Court denied Ramchair’s state appeal on the mistrial issue in March 2006. The New York Court of Appeals agreed to review the Appellate Division’s decision and in March 2007, concurred, again denying Ramchair’s appeal.
Ramchair then returned to federal court and renewed the argument before Judge Gleeson. In April 2008, Gleeson issued the writ on the ground that Ramchair’s appellate lawyer failed to argue that a mistrial should have been granted in the third trial.
The state appealed Judge Gleeson’s decision and in July 2009, the Second Circuit U.S. Court of Appeals vacated the ruling and sent the case back to Gleeson for a hearing because during all the proceedings to that date, Ramchair’s appellate lawyer had never been called to testify.
Gleeson held the hearing, heard the testimony and again issued the writ. In the decision, Gleeson noted, “Ramchair was present in my courtroom at the hearing. Observing him personally for the first time placed in even clearer relief the unfairness of the line-up, and the fallacy of the prosecutor's claim…that only skin tone, and not ethnicity, matters in determining whether a line-up is suggestive.”
Judge Gleeson noted that Ramchair, a Guyanese Indian, appeared South Asian.
“The fact that the perpetrator had such physical characteristics was important to the victim,” the judge wrote. “Thus, it was hardly surprising (and not very probative) when the victim selected Ramchair from a line-up in which he was the only person who appeared South Asian. The prosecutor’s argument that it did not matter that the fillers in the line-up were three Hispanics and an African-American, as long as their complexion was comparable to Ramchair's, was frivolous.”
Gleeson added, “Observing Ramchair in my courtroom helped me appreciate more fully why the prosecutor needed defense counsel's imprimatur on the line-up at trial. The prosecution's case hinged entirely on a vigorously disputed one-witness identification…Even putting aside the ridiculous fact that at least two of the fillers’ faces were smudged with carbon paper, it was obvious that none of them was South Asian. What could be a more effective answer to that glaring weakness in the prosecution’s case than to lead the jury to believe that defense counsel himself had approved the line-up as fair by not objecting to it at the time?”
The state appealed again and in April 2010, the Second Circuit U.S. Court of Appeals upheld the writ conditional upon the state deciding within 45 days whether to retry or release Ramchair.
On July 10, 2010, after the state had not elected to retry the case or seek further appeals, Judge Gleeson issued the writ unconditionally, Ramchair’s convictions were vacated, the charges were dismissed, and Ramchair was released.
– Maurice Possley