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...

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…