DNA Exoneration of John Kogut: False Confession Case Study

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 mentioned 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 it was for non-violent, petty offenses.

A few weeks later, police took Kogut from his home after a hard day of labor, a few beers, and a marijuana cigarette, and began an interrogation session that lasted 18 hours (Centurion Ministries, 2013). During the first three hours of the interrogation, Kogut took and passed three polygraph tests, although police told him that he had failed them. During the interrogation, Kogut provided 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 recorded on tape, 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, the confession would then be used to convict Restivo and Halstead as well, since the confession implicated them (Centurion Ministries, 2013). The confession also described 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 pleaded not guilty at trial and maintained their claims 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 31½ years in prison (Innocence Project, n.d.[a]). Halstead and Restivo were convicted later that year and sentenced to 33½ years each.

The Path to Exoneration

After serving almost a decade in jails and prison, all three men were able to gain the attention of Centurion Ministries in 1994 (Innocence Project, n.d.[a]), a non-profit organization 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 preserved by the Nassau County Police, and during the next decade it 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 was allowed to examine the case evidence in 2003, 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 defendants' 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 had 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 — an indication that the hairs had remained in a corpse long enough for decomposition to begin. According to Petraco's new testimony, the banding on the hairs indicated that Teresa would have been dead for at least eight hours before the hairs were left on the passenger seat of the van. This evidence seemed 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 had 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.