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 remediesa 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.