On December 21, 2005, Nassau County Judge Victor M. Ort found John Kogut not guilty of the 1984 rape and murder of a 16 year old girl. Kogut was charged with the crime in 1985 and convicted in 1986. He was sentenced to 31.5 years to life in prison. Kogut’s 1986 trial was separate from that of Dennis Halstead
and John Restivo
, who were also tried and convicted of rape and murder, on the theory that the three men had acted together in abducting, raping, and killing the victim. It took almost two decades for Kogut to win a retrial after a series of postconviction DNA tests excluded all three men as the rapists and proved that semen from the victim’s body had come from unknown assailant.
On November 10, 1984, the victim, a 16-year-old girl disappeared after leaving her job at a roller rink at 9:45 p.m. On December 5, 1984, her body was found, naked, in a wooded area of Lynbrook, New York. The body had been covered by leaves and debris and was located a short distance from the roller rink.
The autopsy revealed that the victim had died as a result of ligature strangulation. Vaginal swabs taken during the autopsy revealed the presence of semen and spermatozoa - evidence that she had been sexually assaulted. However, serology tests to determine the semen donor’s blood type were never performed.
The Nassau County Police Department was under enormous pressure to solve this crime, particularly since there had been several other disappearances of young girls in the area in recent years. Kogut, Halstead, and Restivo were all initially interrogated as part of an investigation into the disappearance of another girl, before the police changed their focus to this rape and murder.
After 3 polygraph examinations, detectives began to focus on Kogut as a suspect in the rape and murder. Kogut, though he was told that he failed the polygraph, continued to maintain his innocence. After nearly 18 hours of interrogation, however, the police produced a confession from Kogut. The confession was hand written by the interrogating officer for Kogut’s signature, allegedly after five other versions of the confession were never transcribed. Kogut was then taken to the crime scene. He could not point the police to any evidence from the crime that was missing, such as the victim’s clothes, jewelry, or murder weapon. The next day, the confession was recorded on video tape. It contained no details that were not previously known by law enforcement.
According to the confession, Restivo, Halstead, and Kogut were all in Restivo’s van. They approached the victim, who was on foot, and she entered the van voluntarily. When the victim demanded to be let out of the van, she was stopped, stripped, and raped by Halstead and Restivo. They drove to a cemetery, where the victim was taken out of the van and Kogut strangled her with a piece of rope. The victim’s body was then rolled into a blanket and dumped in another location.
Based on Kogut’s alleged confession, Restivo’s van was searched, and several hairs were recovered and tested in a forensic lab.
All three men were charged with rape and murder. Kogut was tried first, and Restivo and Halstead tried together after him. At Kogut’s trial, prosecutors argued that the hairs found in Restivo’s van provided corroboration of the alleged confession.
An analyst testified that two hairs found in the front passenger seat were microscopically similar to those of the victim. “In this particular instance that the questioned hair could have originated from the scalp of Theresa Fusco, with a high degree of probability,” the analyst testified. This testimony was improper, because there is not adequate empirical data on the frequency of various class characteristics in human hair to apply any degree of probability to a hair comparison.
All three men denied having anything to do with the abduction, rape, or murder and offered separate alibi defenses. Prosecutors also introduced snitch testimony against all three men. Kogut was convicted in May 1986 and was sentenced to 31.5 years to life. Restivo and Halstead were convicted in November 1986 and were then sentenced to 33 1/3 years to life.
Biological Evidence and Post-Conviction
Centurion Ministries began working on behalf of all three defendants in 1994. The Innocence Project began working on Restivo’s case in 1997. In the postconviction proceedings that secured the defendants’ release, Kogut was represented by Centurion Ministries, attorney Paul Casteleiro and the law firm of Wilmer, Cutler & Pickering. Halstead was represented by Adele Bernard of Pace Law School’s Postconviction Clinic.
DNA testing in this case went through many rounds over a period of ten years, despite repeated exclusions of all three men. The prosecution initially argued that the samples tested (vaginal slides) were not the “best” samples available and could have failed to detect semen from the defendants present on the original swabs. In 2003, however, the defense team obtained property records from the Police Department which led to the discovery of an intact vaginal swab that had never been tested. STR testing on the spermatozoa on the vaginal swab matched the single unknown male profile from the prior testing and again excluded all three men.
In addition, defense attorneys also secured a new affidavit from former Det. Nicholas Petraco, who had testified for the state in 1986 regarding the hairs allegedly found in Restivo’s van. Det. Petraco concluded, based on 20 years of research and expertise, that the hairs displayed “post-mortem root banding,” a hallmark of decomposition that only occurs while hairs are attached to a corpse that has been dead for at least 8 hours, if not days or weeks. The banding on these hairs was suspiciously similar to those found on dozens of hairs taken from the autopsy that had been in unsealed envelopes in a Police Department laboratory for months. Because the victim was only alleged to have been in the van for a few minutes after death, he concluded, the hairs could not have been shed during that time, and were instead autopsy hairs that were commingled with others from the van – whether through police negligence or misconduct.
Based on these results, all three convictions were vacated in June 2003 and all three defendants were released. John Kogut, however, faced re-trial, based largely on his confession. At trial, the prosecution sought to rebut the DNA evidence by arguing that the victim, who was said by her mother and best friend to be a virgin, had consensual sex with an unknown male prior to her rape and murder. Kogut’s attorney, Paul Casteleiro, argued that the confession was false, and won a motion to have expert testimony on false confessions admitted for the first time in New York State.
After a three month bench trial, Judge Ort found Kogut not guilty on all counts. His verdict included specific findings that numerous aspects of the confession were contradicted by DNA and other forensic evidence, and that the decomposed hairs from the victim were not shed by her in Restivo’s van.