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Man Imprisoned in Case 'Rotten From Day One' Ordered Released

Prosecutors, defense attorneys and a state Supreme Court justice were criticized by Eastern District Judge Nicholas Garaufis who yesterday ordered the release of a man who had spent 23 years in prison for a murder he didn't commit.

"The case of William Lopez was rotten from day one," wrote Garaufis as he granted a petition for a writ of habeas corpus in Lopez v. Miller, 02-CV-3988.

Garaufis said Lopez was the victim of wrongdoing and he should be "released with the State's apology."

"This wrongdoing has ranged from an overzealous and deceitful trial prosecutor; to a series of indolent and ill-prepared defense attorneys; to a bewildering jury verdict; and to the incomprehensible" trial judge, Justice Carolyn Demarest, "who so regrettably failed time and time again to give meaningful consideration to the host of powerful arguments Lopez presented to her."

Prosecutors had charged that Lopez was one of two men who committed the murder/robbery of drug dealer Elvirn Surria on Aug. 31, 1989, in a Brooklyn crackhouse on Brighton Fifth Street. Lopez was convicted of second-degree murder and sentenced to 25 years to life in prison.

But one witness, Janet Chapman, conceded she was binging on crack leading up to the shooting. Post-trial, Chapman submitted an affidavit saying her trial testimony was "pure fabrication" and "I must also reveal that the district attorney told me never to tell anyone that we cut a deal about my testimony in exchange for my freedom. Even when I took the stand at trial, I lied about the deal and testified that no promises had been made to me."

Chapman, however, disappeared before Lopez's brother, Eugene, could get the affidavit notarized.

A second trial witness, a woman who worked in the crackhouse, couldn't identify Lopez in the courtroom and testified that the shooter was "tall, dark and Hispanic" about the same height as Lopez's counsel, William Lupo, who was six-foot-three. Lopez is five-foot-seven and is white or light-skinned.

"In short, the prosecution witness who was sober, face-to-face with the shooter, and had no motive to lie did not recognize Lopez when she saw him and described a perpetrator with physical characteristics bearing no resemblance to him," Garaufis said. "The other witness had been awake for two days straight, had smoked ten to twelve vials of crack in the two hours prior to the shooting, claimed to have seen everything while peeking through a partially ajar door in a different room, and provided inconsistent accounts of what she saw."

"This case was a toss-up at best," he said. "In short, the prosecution's evidence was flimsy to begin with and has since been reduced to rubble by facts arising after trial."

The judge pointed to another piece of evidence involving an inmate at Rikers Island who had spoken with Chapman about the shooting. The inmate sent a letter to prosecutors stating that Chapman admitted that Surria was lured to the crackhouse to be robbed and that Chapman had done the luring. The inmate also said Chapman told her a person other than Lopez had done the killing.

William Lupo, Lopez's attorney at trial, who is now deceased, never made use of the letter.

Lopez was represented at sentencing by Irving Anolik, who told Demarest that he was "totally unfamiliar" with the Lopez case. Anolik also represented Lopez on his unsuccessful appeal to the Appellate Division, Second Department, but did not pursue a petition for leave to appeal to the New York Court of Appeals.

Although Lopez failed to file a habeas petition within the one-year statute of limitations period, Garaufis excused the lateness because Lopez had made a "credible and compelling showing that he is actually innocent of the crime."

Faulting Demarest, Garaufis also excused Lopez from the bar on re-adjudication of the ineffective assistance claim which had been adjudicated by Demarest because her decision, Garaufis said, was based on "an unreasonable determination of the facts."

Garaufis initially denied Lopez's petition, but the new information on Chapman led him to grant a motion for reconsideration and ultimately allow Lopez to return to state court to exhaust his state remedies—a journey that was completed when Justice Demarest denied his motion to vacate his conviction in 2010 and his appeals failed.

Garaufis then held evidentiary hearings that included the videoconference testimony of Cesar Diaz, who was living in Santo Domingo but was in the crackhouse during the murder.

Shown a picture of Lopez shortly after the shooting, Diaz said he was "certain" that the man in the picture did not kill Surria.

Garaufis was persuaded by Diaz's testimony, the recantations of Chapman as testified to by Eugene Lopez, and the letter from the Rikers inmate.

"There are a number of inconsistencies between the accounts of the three eyewitnesses present at the shooting, but the bottom line is that, in the end, none of them, apparently believed Lopez was there," he said.

He credited the affidavits of Lopez's two alibi witnesses— Lopez's partner Juliana Guido, and Juliana's sister, Lydia Rivera, and said Lopez himself "openly and persuasively" told his story and asserted his innocence.

Garaufis faulted Brooklyn Assistant District Attorney Tess Allen for making a "false" representation to Demarest that she had never discussed with Chapman a "contract" in which she would benefit from testifying at trial to the same information she told police about the murder when she was arrested for prostitution.

He faulted Lupo for failing to contact alibi witnesses (although Lupo at the time claimed he did indeed contact one of them), saying this amounted to ineffective assistance of counsel. Lupo's failure to call either witness, he said, "was not based on reasonable trial strategy."

And Demarest, he said, rejected the ineffective assistance claim "without evaluating this central factual issue of whether Lupo failed to interview both of the alibi witnesses," and failed to hold an evidentiary hearing to gauge credibility of the alibi witnesses.

"Instead, Justice Demarest focused solely on the fact that the affidavits did not establish Lopez's innocence with absolute certainty," he said. "That was unreasonable."

Demarest declined comment.

Assistant District Attorneys Howard Goodman and Phyllis Mintz represented the state in federal court.

Richard Ware Levitt and Yvonne Shivers of Levitt & Kaizer represented Lopez.

A spokeswoman for Brooklyn District Attorney Charles Hynes said the office is reviewing the decision.






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