Judge to Hynes: Too late for retrial in 1989 robbery-murder

March 21, 2013 By Charisma L. Miller, Esq. Brooklyn Daily Eagle
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The Brooklyn District Attorney’s office has been barred from retrying a man who was wrongly charged and subsequently convicted of a 1989 robbery and murder. 

In January 2013, Eastern District Federal Judge Nicholas Garaufis ordered the release of William Lopez after finding “credible and compelling showing that [Lopez] is actually innocent of the crime.”

In the January ruling, Garaufis informed the DA’s office that it had sixty days to “concrete and substantial steps . . . to retry” Lopez.

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Having failed to meet the sixty day deadline, Garaufis ruled this week that: “1) Lopez be unconditionally released from State custody; (2) the pending State murder indictment against  him be dismissed; (3) the State be barred from retrying him for murder of Elvirn Surria;  and (4) the State expunge Lopez’s conviction from its records and all references to him in the public record.”

Lopez’s case was “nothing short of exceptional,” Garaufis said. In 1989, someone shot and killed Surria, a known drug dealer, in a crackhouse on Brighton Fifth Street in Brooklyn. Lopez was charged for this crime.

The trial was presided over by a Kings County Supreme Court justice. Lopez was convicted and then sentenced to a prison term of 25 years to life.

After his conviction, numerous trial witnesses were deemed unreliable. In his January order to release Lopez, Garaufis found wrongdoing in the case that “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.”

After the January hearing and Lopez’ release from prison after over two decades of confinement, a spokesperson for the DA’s office told the Brooklyn Daily Eagle, “We will appeal [Garaufis’] decision.”

 Lopez was again arraigned for the Surria murder but since the arraignment, the DA’s office “has not offered any other proof that it intends to promptly retry him,” Garaufis noted. The DA’s “silence…speaks volumes,” he continued.

Even if the DA’s office had taken the steps necessary to retry Lopez, Garaufis asserted that Lopez would not likely receive a fair trial.  Given that “over 20 years have passed since the murder…and all of the prosecution’s trial witness have died or are missing,” Garaufis notes, it is “virtually impossible that a fair retrial could occur.”

 “We have filed an appeal to the 2nd Circuit Court of Appeals,” a spokesperson from the DA’s office told the Brooklyn Daily Eagle,   “and this decision does not effect our resolve to ask the appellate court to reverse Judge Garaufis.”

Anticipating an appeal, Garaufis noted any desire of the DA’s office to “pursue further investigation of this case [and/or proceed with its appeal to the Second Circuit], does not affect [his] conclusion.”

Richard W. Levitt and Yvonne Shivers of Levvitt & Kaizer respresented Lozpez in his appeal to the federal court.  Levitt and Shivers were unavailable for comment by deadline.

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