Innocence Project Case John Kogut Analysis

DNA Exonerations: John Kogut

The Path To Exoneration: John Kogut

The Path to Conviction

When 16-year-old Teresa Fusco left work at 9:45 PM on November 10, 1984 she became one among several young girls reported missing over the past several years [Centurion Ministries, 2013; Innocence Project, n.d.(a)]. In contrast to her predecessors, however, her body was discovered a month later in a wooded area several blocks from the roller rink where she worked. According to the autopsy, Teresa had been raped and murdered. Semen and sperm were collected from her body and the marks on her neck revealed that she had been strangled with a rope or cord. Also found at the scene were her jewelry and the murder weapon. The coroner's office, however, failed to conduct a blood type analysis on the semen.

The Nassau County police were under tremendous pressure to solve these disappearances, especially Teresa's rape and murder [Innocence Project, n.d.(a)]. They began bringing in suspects and conducting polygraph tests. John Kogut, Dennis Halstead, and John Restivo had all been questioned about a previous disappearance and were therefore known to police. Restivo was interrogated first about Teresa's rape and murder. During a very long 18-hour interrogation Restivo mentions Kogut as a friend of a friend without implicating him in any wrongdoing, while maintaining his own innocence. Of the three men, only Kogut had a criminal record and this was for non-violent, petty offenses.

A few weeks later the police grab Kogut from his home, after a hard day of labor, a few beers, and a marijuana cigarette, and begin an interrogation session that lasts 18 hours (Centurion Ministries, 2013). During the first three hours of the interrogation Kogut takes and passes three polygraph tests, although police tell him that he failed the tests. During the interrogation Kogut provides six versions of a confession, but only the last version was transcribed into the record. The confession was handwritten by a police officer and Kogut signed it at the bottom. A day later the confession was taped, but both the written and taped versions failed to provide any new information the police were not already aware of.

Kogut's confession was by far the strongest evidence the prosecution had against the three and for this reason Kogut was prosecuted first. If successful, then the confession would be used to also convict Restivo and Halstead because the confession implicates them (Centurion Ministries, 2013). The confession also describes the abduction, rape, and murder of Teresa using Restivo's van. The police obtained a search warrant based on this confession and discovered two hairs they claimed came from Teresa.

All three defendants plead not guilty at the trial and maintained their claim of innocence (Centurion Ministries, 2013). Kogut testified that the confession was coerced, yet he was convicted of the rape and murder in May 1986 and sentenced to 31-1/2 years in prison [Innocence Project, n.d.(a)]. Halstead and Restivo were convicted later that year and sentenced to 33-1/2 years each.

The Path to Exoneration

After serving almost a decade in jails and prison, all three were able to gain the attention of Centurion Ministries in 1994 [Innocence Project, n.d.(a)], a non-profit committed to freeing prisoners convicted and imprisoned for crimes they did not commit. The Innocence Project joined the effort in 1997. Wilmer, Cutler & Pickering represented Kogut, while Halstead was represented by Pace Law School's Postconviction Clinic.

Fortunately, the biological evidence obtained from Teresa's body had been kept by the Nassau County Police and during the next decade was tested several times [Innocence Project, n.d.(a)]. Comparisons with DNA samples taken from Kogut, Halstead, and Restivo found no match, but the Nassau County prosecutor argued that the DNA samples were probably too degraded to reveal a match. When the defense team in 2003 was allowed to examine the evidence related to the case they discovered a vaginal swab that had never been tested and was therefore in pristine condition. Testing of this sample also excluded all three defendants, while still providing an intact DNA profile of an unknown suspect.

The same result had therefore been obtained across multiple semen samples and none produced a DNA profile matching Kogut, Halstead, or Restivo; however, all produced a DNA profile for an unknown suspect [Innocence Project, n.d.(a)]. The prosecution's argument that the defendant's samples may have degraded could no longer be made, because the unknown assailant's semen was intact on all samples tested.

Defense attorneys also obtained an affidavit from Detective Nicholas Petraco, who originally testified on behalf of the prosecution during the 1986 trials of the defendants [Innocence Project, n.d.(a)]. According to Petraco the hairs recovered from Restivo's van had banding on them, which is an indication that the hairs had remained in a corpse long enough that decomposition had begun. According to Petraco's new testimony, the banding on the hairs indicated that Teresa would have been dead for at least 8 hours before the hairs were left on the passenger seat of the van. This evidence seems to suggest the defendants had driven around in the van with a corpse in the passenger seat, a seemingly implausible scenario.

Investigators working for Centurion Ministries (2013) discovered the hairs were very similar to hairs taken from Teresa's body during autopsy. The most logical conclusion, based on Detective Petraco's testimony, is that the police planted these hairs on the seat of the van during the search. Several witnesses also provided testimony that the van, at the time of the rape and murder, was sitting on blocks because the brakes were not working. In addition, all three defendants had strong alibis for the time when the abduction, rape, and murder took place.

Exoneration Delayed

In 2003, all three men had their conviction overturned and were released from prison after serving 18 years for a crime they did not commit [Innocence Project, n.d.(a)]. The Nassau County Prosecutor was not ready to declare defeat, however, and sought to reconvict Kogut using his confession and new expert testimony. The new expert witness was expected to help the prosecution prove that the DNA evidence was moot because the semen sample was from a consensual sexual act engaged in shortly before the abduction and murder. The confession would again represent the foundation of the prosecution's case.

The new trial took place in 2005 in front of Nassau County Supreme Court Judge Victor M. Ort (Centurion Ministries, 2013). The expert witness claimed that by counting the number of white blood cells in the semen sample that he could determine when intercourse took place. Based on photomicrograph slides of the semen sample the expert claimed that the victim had sexual intercourse several hours before she was abducted near the roller rink. The prosecution's new theory was that the rape committed by Kogut, Halstead, and Restivo did not result in any biological evidence being left inside Teresa, thereby explaining why the DNA profile did not match the defendants. Unfortunately for the prosecution, the expert was basing his analysis on studies conducted using living females, not dead corpses that had been left in the woods for nearly a month. Never mentioned in the source materials was the possible identity of this unknown boyfriend or lover.

Judge Ort ruled first on the count of rape in People v. Kogut (2005). Based on the evidence presented to him the hairs alleged to belong to Teresa and collected from Restivo's van could not have been deposited on the passenger seat on the day that Teresa went missing. Absent this evidence, Kogut's confession claiming that he and the other two defendants raped Teresa must stand alone without any corroborating evidence. Judge Ort also mentioned the lack of any physical injuries, the semen from an unknown person, and the newer testimony that the semen was deposited in Teresa due to a consensual act, which tends to discount the veracity of the claims made in the confession. Judge Ort therefore ruled Kogut innocent of the rape.

Since there is no evidence to support the rape charge, the judge could not uphold the conviction for a murder committed during the course of a rape (People v. Kogut, 2005). The third charge against the defendants was intentional murder and absent the rape, a motive was lacking. This left the confession by Kogut as the only incriminating evidence left standing. Judge Ort felt that there was a preponderance of evidence undermining the truthfulness of the confession and therefore ruled it inadmissible. As a result, Kogut was cleared of all charges related to the abduction, rape, and murder of Teresa Fusco. As of this writing, no other suspects have been charged in this case.

The News Media

The New York Times (2013) first began covering this case with the arrest of John Kogut, 21-years of age, on March 27, 1985. The Times publishes several articles covering the trial preparations and trial between 1985 and 1986 and then nothing was published on the topic until 2003, when a hearing was held to consider the DNA evidence that led to the exonerations. Mario Cuomo, former governor of New York, published an editorial in the New York Times suggesting that the lack of a death penalty in the state probably save the lives of these three men. Cuomo goes on to suggest that the death penalty should be banned in all 50 states for this very reason. An article in 2003 also covers the intention of the prosecutor to retry Kogut for the rape and murder. The New York Times (2013) published more articles in 2005 during the retrial of Kogut and his release from jail. A follow up article was published in 2007 that examined what happened in the lives of these and other exonerees following their ordeals.

The first article covering the arrest of Kogut could be characterized as damning (Man, 21, is arrested, 1985). The Times lists Kogut's age, occupation, exact street address, and the crimes he is accused of, together with suspicion about his involvement in the earlier disappearance of a 15-year-old female friend of Teresa. The article covering the later arrest of Halstead and Restivo was no better. The coverage in 2003 was more balanced, providing statements from the defendants, defense attorneys, and prosecutor (Gootman, 2003). The coverage in 2005 was limited to a single short paragraph composed by an unnamed Associated Press reporter. The follow up piece was a multimedia presentation representing interviews of 137 DNA exonerees, thereby bringing attention to the issue of false convictions, why they happen, and the consequences. There is thus an obvious progression from outrage over the horrible crime committed and those blamed, to a considered piece describing in great detail how the criminal justice system can destroy the lives of those falsely convicted.

Causes of Wrongful Convictions

The wrongful convictions of Kogut, Halstead, and Restivo were the product of several missteps and probably misconduct by the police and prosecutor. Kogut was arrested at the end of a long day of manual labor, after a few beers and a marijuana cigarette, and then kept awake for another 18 hours while being interrogated by the police. By the end of the interrogation Kogut had probably been awake for close to 30 hours. Recent research examining the physiological consequences that result when an innocent or guilty person is accused, interrogated, and pressed to confess reveal an innocent person is more relaxed than a guilty person. This has the advantage of protecting the innocent from making false statements under pressure, but also renders them vulnerable to being too cooperative with the police and overly confident in the fairness of the criminal justice system (Guyll, Madon, Yang, Lannin, and Scherr, 2013). However, the physiological differences between the guilty and innocent disappeared within an hour and both were showing signs of stress, as measured by blood pressure, heart rate, and heart function. The amount of stress experienced by the guilty and innocent declined once they confessed, suggesting confessions, both false and true, are rewarded by less psychological and physical stress. By comparison, an innocent person who continued to resist efforts to elicit a confession maintained an elevated stress level normally associated with the flight or flight response. Prolonged elevated stress levels have been shown previously to be associated with cognitive and psychological fatigue, which would explain why innocent people eventually confess.

The findings of Guyll and colleagues (2013) do not prove that false confessions are the result of stress, but suggest why they may occur. This explanation could explain, for example, why 14% of the 1,050 exonerations that have occurred between 1989 and Feburary 2012 involved false confessions (National Registry of Exonerations, 2012). Among the exonerations involving murder, 22% of the accused confessed falsely. The restriction of food and sleep is one of many conditions under which the U.S. Supreme Court has judged a confession to be coerced and therefore inadmissible (Kassin et al., 2010). An 18-hour interrogation session at the end of a long workday would probably qualify.

If judges and juries understood how easily an innocent person can be pressured and mislead to the point of giving a false confession, the number of exonerations currently occurring each year (about 200) would probably decline. Researchers, however, have convincingly shown that both judges and juries give too much weight to confessions during court proceedings, so much so that strong exculpatory evidence is often incorrectly discounted or ignored (Kassin, 2012). The problem lies within human nature, because it is hard for people to imagine an innocent person admitting to a crime they didn't commit, especially a serious crime like rape or murder. When 132 judges were presented with a case example of a confession produced under low-stress or high-stress interrogation conditions, along with either weak or strong corroborating evidence, 100% of suspects who confessed with strong corroborating evidence were convicted (Wallace and Kassin, 2012). Even with weak corroborating evidence, 69% of the judges convicted the accused even when the confession was obtained during a 15-hour interrogation session filled with screaming accusations, threats of physical harm, and the brandishing a firearm. If judges are so susceptible to giving too much weight to a confession obtained under stressful conditions, why would a jury do any better? This is especially relevant since 83% and 7% of the 1,050 exonerees in the National Registry of Exonerations (2012) were convicted by a jury or judge, respectively.

Another important reason for the false conviction of Kogut, Halstead, and Restivo is the lone corroborating evidence used to support Kogut's false confession. The hair sample from the victim was exactly what the prosecution needed to solve this case. Based on the evidence presented in the retrial, however, the most likely conclusion is the hair samples had been taken from the victim during autopsy and planted in Restivo's van (Centurion Ministries, 2013). Such tactics are not uncommon and exoneree statistics reveal that official misconduct took place in 57% of the murder convictions and 34% of the child sex abuse convictions that were later overturned (National Registry of Exonerations, 2012). The misleading statements about Kogut's performance on the polygraphs, the use of jailhouse snitches and informants who would benefit from lying, and the lack of attention paid to a missing motive and strong alibis would probably fit within the official misconduct category. The term 'railroaded' seems particularly apt.

Recommended Solutions

The Innocence Project recommends mandatory taping of interrogations, not just the confession at the end of the interrogation session [Innocence Project, n.d.(b)]. The taping of the interrogation would record any missteps by the police, such as contaminating the mind of the accused with information that only the investigators know. Taped interrogations would also prevent the unlawful use of threats and other coercive tactics designed to elicit a false confession or guilty plea. The use of a video recording device during Kogut's interrogation would have documented his claims of innocence, the contaminating process used by the police, and the coercive nature of the session. If the judge and defense team had been shown such a tape, the chances are good that the confession would have been ruled inadmissible.