He credited the affidavits of Lopez's two alibi witnesses— Lopez's partner Juliana Guido, and Juliana's sister, Lydia Rivera, and said Lopez himself "openly and persuasively" told his story and asserted his innocence.
Garaufis faulted Brooklyn Assistant District Attorney Tess Allen for making a "false" representation to Demarest that she had never discussed with Chapman a "contract" in which she would benefit from testifying at trial to the same information she told police about the murder when she was arrested for prostitution.
He faulted Lupo for failing to contact alibi witnesses (although Lupo at the time claimed he did indeed contact one of them), saying this amounted to ineffective assistance of counsel. Lupo's failure to call either witness, he said, "was not based on reasonable trial strategy."
And Demarest, he said, rejected the ineffective assistance claim "without evaluating this central factual issue of whether Lupo failed to interview both of the alibi witnesses," and failed to hold an evidentiary hearing to gauge credibility of the alibi witnesses.
"Instead, Justice Demarest focused solely on the fact that the affidavits did not establish Lopez's innocence with absolute certainty," he said. "That was unreasonable."
Demarest declined comment.
Assistant District Attorneys Howard Goodman and Phyllis Mintz represented the state in federal court.
Richard Ware Levitt and Yvonne Shivers of Levitt & Kaizer represented Lopez.
A spokeswoman for Brooklyn District Attorney Charles Hynes said the office is reviewing the decision.
@|Mark Hamblett can be contacted at mhamblett@alm.com.
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Robert J. Feldman
Has ADA Tess Allen been reported to the Disciplinary Committee?
Has Justice Demarest been reported to the Committee on Judicial misconduct?
When is the Brooklyn DA's office going to stop being the worst office in NYC?
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Ike Aruti, Esq.
It must be snowing in hell.
Bravo to Mr. Hamblett and Judge Garaufis for reporting and speaking out
regarding how our system can destroy the life of an innocent person in a case
which was "Rotton From Day One." It is a rare opportunity to evaluate the
integrity of our government and public officials whose reputations are entitled
to more protections than the People (you and me.)
An unconscionable failure of our justice system having now come to light, the
real question is: What are we going to do about it?
I don't think anybody expects our system to be perfect, but will it do the
responsible thing to address the harm it has caused, and take concrete measures
to prevent recurring failures of this kind? The State's Apology is insufficient, even if the defendant is not a model citizen.
Will the "overzealous and deceitful trial prosecutor" remain licensed to
practice in NY? What about Judge Demarest?
Will there be any investigation of how such prejudicial behavior and bad faith
can exist in the District Attorney's office?
Will section 487 of the Judiciary Law be applied?
What about conspiracy and perjury laws?
Was there any comment from Attorney General Eric Schneiderman? Chief Judge
Lippman?
What actions will be taken by the Commission on Judicial Conduct and the
Attorney Disciplinary/Grievance Committee? Have there been prior reports of
bad faith conduct by these individuals and agencies?
Also, why did multiple Justices in the AD 2d Dept. fail to recognize a case so
obviously "Rotten From Day One, and an unreasonable, incomprehensible Judge?"
Are they not charged with sufficient insight to see past differences in the
abilities of opposing attorneys, identify flimsy evidence used to falsely
imprison a person, and rule in a manner that promotes justice?
Since these agencies operate in secrecy, we rely on reports from courageous
individuals, such as Mr. Hamblett and Judge Garaufis to keep the People
informed. Eternal vigilence, the price of freedom, can never be achieved
without transparency.
I eagerly await your follow up reports....
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Glenn
One thing I don't understand is how the defense attorneys could be "indolent and ill-prepared" yet make "powerful arguments" to the trial judge.
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Michael
Wow. And I thought Judge George LoPresto, Queens Criminal, was kidding when he told me, on the record "Guilt or innocence doesn't matter". Used to be a time, when a prosecutor who instructed a witness to lie on the stand, WOULD BE PROSECUTED THEMSELVES. Wonder why that changed.......
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Sid
One poor soul wins after most of his active life is gone. The prosecutor and judge shrug. No one will ever punish the. And, of course, untold numbers of potential innocents continue to be prosecuted by those who lack a shred of honor.
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