At about 2 a.m. on August 31, 1989, two men, one armed with a shotgun, murdered 23-year-old Elvirn Surria in a basement crack house in the Brighton Beach neighborhood of Brooklyn, New York.
Later that day, a woman who lived near the scene of the shooting told police that she saw 30-year-old William Lopez on the street that morning and that while they were talking, a sawed-off shotgun dropped down the inside of Lopez’s pant leg and hit the sidewalk.
In September, Janet Chapman, a prostitute and crack addict, was arrested on a prostitution charge and also held on a probation violation. During an interview with police, she said she was in the crack house at the time of the crime and saw the two men come inside. She identified Lopez in a photographic lineup as one of the men. She said she saw him with a gun and later heard gunshots.
Lopez was charged with murder, robbery and possession of a weapon. He went on trial in Kings County Supreme Court in October 1990.
Daisy Flores was called to testify about the shooting. She said that she had worked for Surria, opening the door and handing out drugs to people who came to purchase crack. She said there were two men involved in the murder and that one of them shot Surria with a shotgun. When asked if she saw the gunman in the courtroom, she said she did not. She was unable to identify Lopez. Flores said the gunman had black skin and was taller than 6 feet, 3 inches. Lopez has light skin and is 5 feet, 7 inches tall.
Chapman, on the other hand, testified at trial and stated for the first time that she actually saw Lopez shoot Surria and then take money and drugs from his pockets. Chapman denied that she was getting any favorable treatment from the prosecution in exchange for her testimony. She said she knew Lopez from the neighborhood and had purchased drugs from him in the past.
Lopez told his defense attorney that his common-law wife and her mother could vouch for his whereabouts on the night of the crime and testify that he was with them at various times. The defense attorney, however, did not call them as witnesses. He told Lopez he had interviewed them extensively and believed a jury would not find them credible.
On October 19, 1990, a jury convicted Lopez of second degree murder, robbery and possession of a weapon. Prior to sentencing, the prosecution received a letter from a woman who was being held in the Rikers Island Correctional Facility. The woman wrote that Chapman had told her that she lied to implicate Lopez in return for an early release from jail. The prosecution gave the letter to Lopez’s defense, but characterized it as utterly unreliable. By the time Lopez appeared for sentencing, his trial attorney had had a heart attack and was incapacitated. Another attorney appeared at the sentencing, but the letter was never mentioned or investigated. Lopez was sentenced to 25 years to life in prison.
Less than a year later, Chapman again recanted her testimony and gave a statement to Lopez’s brother, Eugene, saying that she had lied in return for favorable treatment from the prosecution in her pending cases.
William Lopez lost contact with his common-law wife and her family and ultimately, he married someone else while still in prison. He later reached out to his former wife and family and discovered that they had never been interviewed by Lopez’s trial lawyer. They provided sworn affidavits saying that Lopez was with them at the time of the crime.
Lopez wrote to lawyers and innocence projects across the country, but was unable to get help.
In 2002, Lopez filed a handwritten federal petition for a writ of habeas corpus, but the petition was denied because it was filed too late. Lopez moved for reconsideration of the ruling and in 2005, U.S. District Court Judge Nicholas Garaufis granted the request. The judge said that Chapman’s recantation provided “substantial support” for a claim of actual innocence. A credible claim of actual innocence allows a judge to consider a petition that is filed past the filing deadline and therefore would otherwise be barred.
Judge Garaufis reinstated Lopez’s habeas petition, appointed attorneys for Lopez and instructed the lawyers to hire an investigator to find Chapman. The investigator discovered that Chapman was dead, as was the woman who had written the letter from Rikers saying that Chapman admitted she had lied.
In 2009, the federal habeas petition was put on hold to allow Lopez to return to state court to present evidence of the recantation and the affidavits of his former family members. Lopez contended his trial had been constitutionally unfair because his lawyer had failed to investigate or call his alibi witnesses and had failed to investigate the letter from the woman at Rikers. But Kings County Supreme Court Judge Carolyn Demarest, who had presided over Lopez’s trial, dismissed that evidence without holding a hearing. Lopez’s appeal of that ruling was denied and so he returned to federal court and in 2011, his lawyers, Richard Levitt and Yvonne Shivers, filed an amended habeas corpus petition.
Judge Garaufis held a hearing in September 2012. By that time, Lopez’s former family members also were dead or too ill to attend the hearing. But the judge received the affidavits as well as transcripts showing that the prosecutor had discussed—but never disclosed to the defense—a deal with Chapman prior to her testimony. The transcripts showed that Chapman had lied when she said she was not offered a deal by prosecutors.
The hearing was reopened in January 2013 so that a man named Cesar Diaz, who was living in the Dominican Republic, could testify via videoconference. Diaz testified that he was a partner in the crack trade with the victim, Surria, and was present in the crack house when Surria was killed. Diaz said that he saw two men, one about 5 feet 3 inches tall with black skin and the other about 5 feet tall and chubby.
Diaz said the man with black skin had a gun and shot Surria in the abdomen. Both fled. Diaz said that he used about $3,000 to send Surria’s body to his family in Santo Domingo. He said that he never spoke to police and that he was later convicted of drug-related offenses and deported to Santo Domingo in 2003.
Diaz said he was certain that Lopez was not involved in the crime.
On January 16, 2013, Judge Garaufis vacated Lopez’s conviction and ordered a new trial, citing the recantation and alibi affidavits, the prosecution’s misconduct, and Diaz’s testimony. The judge said the case against Lopez was “rotten from day one.” Lopez was released on bond on January 23.
Kings County District Attorney Charles Hynes appealed the decision. In the fall of 2013, Hynes lost his re-election bid to Ken Thompson, who had vowed during the campaign to closely review cases where defendants asserted their innocence. On March 27, 2014—one week before the oral arguments on the appeal of Judge Garaufis’s ruling were scheduled to be heard—Thompson’s office filed a motion to dismiss the appeal. The Second Circuit U.S. Court of Appeals granted the motion on March 28, 2014.
– Maurice Possley