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 York."

In an 85-page ruling, the judge faulted everyone from prosecutor who tried Lopez's case to the judge who presided over his trial.

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 wrote.

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 Carolyn Demarest.

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 said.

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 committed perjury.

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 one."

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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