The credibility of his accuser came into question after she was convicted for falsely reporting a similar incident just three months after Lackey's conviction. She spent eight months in jail herself for the falsehoods.
"If presented to a jury there is no question in my mind that it could definitely affect the outcome of the case," DiStefano said.
Rose said that there was no way Lackey's lawyer during the trial, Ralph Cognetti, could have known about this since it happened after the trial.
"The information that's led to this motion happened well after Mr. Cognetti was out of the picture," he said.
Lackey has been serving an eight-year sentence at Clinton Correctional Facility in Dannemore, N.Y. He was released on his own recognizance to his father and is to be under the supervision of the probation department.
"Prior to the trial Mr. Lackey had been released on his own recognizance to his father. He was in court on all occasions that were necessary," DiStefano reminded District Attorney Don Cerio before he decided if releasing Lackey was all right with him.
Cerio agreed that releasing him was fine and did not ask for any bail. But did ask that the release be supervised and that the judge sign a temporary order of protection for the alleged victim.
Lackey is to have no contact with her. And even though he has spent three years of his life in prison, he has no hard feelings for her.
"I don't even know her so it's hard to say anything," he said. "I think she knows the truth-wish she would come forward."
Stephen agrees with his son.
"We harbor no bad feelings toward her, she's got enough problems of her own," he said. The woman insists she falsely reported the Oswego County incident because she blacked out. The injuries she sustained were at her own hand but she couldn't imagine having injured herself.
In her 2004 statement to police she admitted to hearing voices and during the hearing last week she admitted to having attempted suicide more than once.
According to notes from her doctor, her mental state has been unstable for a years causing her to be on various anti-depressants including Prozac, Klonopin and Vistaril.
The alleged victim claimed that she was attacked and sexually assaulted in the City of Oneida on Jan. 16, 2003. She was not able to positively identify Lackey as her assailant.
His name came up in the investigation and he was interviewed by Michael McCarthy, an investigator with the Oneida City Police Department.
DiStefano's decision points out that the court was not convinced that the confession McCarthy obtained from Lackey was admissible because Lackey may not have had the mental capacity, with an IQ of 73, to waive his Miranda rights.
Oneida City Police made no video or audio recording of Lackey's interrogation or confession.
"I want the truth. Everyone seemed to want to avoid the truth, I don't think that's right. I wish the young lady would come forward-this would be all over," Stephen Lackey said.
Dan Lackey is glad to be out of prison though he was overwhelmed by all that happened Thursday.
"I don't have chains on anymore. I feel free," he said.
"He didn't even know why he was coming today," Rose said. "Dan's had problems with irregular heartbeat-he came from a medical facility and is walking out of here a free man."
Dan Lackey said prison life wasn't easy for him.
"I would tell them I'm innocent and they wouldn't believe me," he said, adding that the disbelief of other prisoners sometimes caused fights. "Everything came so fast, it's like I was numb. You don't think you're really there, it's like you're in a dream because you're behind a big brick wall."
But Lackey may not be completely free. The judge's decision didn't clear him of the charges, it returned to where he was before the trial.
The district attorney has 60 days to decide whether to retry the case, dismiss the charges or appeal the judge's decision.
Rose doesn't think a retrial would go anywhere. He explained that there was no DNA evidence in the 2004 trial. And he doesn't think Lackey will go back to jail even if the DA decides to appeal the judge's decision.
"I don't think an appellate judge is going to put him back in jail pending an appeal - Dan is likely to remain free," he said.
Stephen Lackey expressed gratitude to the judge and to supporters of Dan's Defense Fund. He said people in the community donated thousands of dollars to help cover the legal expenses the family incurred.
"We had a can on the counter," the father said. He owns Seneca Trail Garden Center on Route 5 in Wampsville.
Dan Lackey plans on moving back in with his dad in Canastota and his dad is happy to have him home.
"I'm all choked up - it's surreal," Stephen said. "It was a long battle."
"You keep your emotions bottled up," he said. "It's over and all those emotions; all the anger, all the love - just flows out."
||Truth in Justice