By Jessica Dye
NEW YORK, Jan 16 (Reuters) - A federal judge in Brooklyn on
Wednesday said that a man who has spent more than 23 years in
prison for the murder of a drug dealer should be released "with
the state's apology."
In granting William Lopez's habeas corpus petition, U.S.
District Judge Nicholas Garaufis said he believed Lopez was
"likely innocent" and had been "wronged by the state of New
In an 85-page ruling, the judge faulted everyone from
prosecutor who tried Lopez's case to the judge who presided over
The "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 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," Garaufis
The ruling ordered Lopez to be released within 60 days,
unless prosecutors have taken substantial steps to expedite a
new trial for him.
A representative for the Brooklyn district attorney's office
said the ruling was under review.
It is rare for district courts to grant a habeas petition.
According to a 2011 analysis from Vanderbilt University Law
School Professor Nancy King, district courts granted only 0.6
percent of habeas petitions in a randomly selected sample of
cases from across the country.
Lopez was charged with the 1989 murder of a drug dealer,
Elvirn Surria, in a Brooklyn crackhouse. Without a murder weapon
or forensic evidence to connect Lopez to the crime, Brooklyn
prosecutors relied largely on the testimony of two eyewitnesses,
the ruling said.
One of the witnesses, who said she came face-to-face with
Surria's shooter, did not recognize Lopez when she saw him in
the courtroom, the ruling said. The other witness, who was "in
the midst of a two-day crack binge" on the morning of the
shooting, said at trial that she saw Lopez pull the trigger, but
after the trial recanted and said her testimony had been "pure
fabrication," the ruling said.
CASE 'ROTTEN FROM DAY ONE'
Lopez was convicted of second-degree murder and criminal
possession of a weapon, and he was sentenced to 25 years to life
following a jury trial before Kings County Supreme Court Justice
Lopez mounted a series of unsuccessful appeals in state
court. In 2002, he filed a habeas petition in Brooklyn federal
court, which was initially rejected, since it was filed more
than one year after his conviction was finalized in state court.
The court reopened the case when it learned of a letter in which
one of the eyewitnesses recanted her trial testimony, the ruling
In an amended habeas petition filed in 2011, Lopez claimed
that he had received ineffective assistance of counsel from his
trial attorney, as well as the attorney who represented him at
sentencing, Irving Anolik, and that one of the eyewitnesses had
Garaufis held two evidentiary hearings on Lopez's claims.
During one, Lopez's lawyers presented video testimony from a man
living in the Dominican Republic who said he witnessed the
murders, the ruling said. The witness testified that he was
"certain" that Lopez was not one of two intruders whom he saw
shoot Surria, the ruling said.
Garaufis concluded that Lopez's case merited the
"extraordinary" relief of granting his habeas petition.
Among the reasons for his ruling, Garaufis said that
prosecutor Tess Allen made conflicting statements about whether
offers or deals had been struck with one of the witnesses. The
judge also said that when Anolik admitted at Lopez's sentencing
that he had not read the trial transcript, Demarest decided to
proceed with the sentencing.
"In short, the prosecution's evidence was flimsy to begin
with and has since been reduced to rubble by facts arising after
the trial," Garaufis wrote, calling the case "rotten from day
A lawyer for Lopez, Richard Levitt, said he was hopeful that
prosecutors would not appeal the decision. Levitt called Lopez a
"very mature and decent man" who had maintained his innocence
from the start.
Demarest declined to comment on the ruling. Anolik could not
be reached for comment, and the DA's office declined to comment
directly on the court's findings about the prosecution.
The case is Lopez v. Miller, U.S. District Court for the
Eastern District of New York, No. 02-3988.
For Lopez: Richard Levitt and Yvonne Shivers.
For the state: Howard Goodman and Phyllis Mintz of the Kings
County District Attorney's Office.
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