Halstead, Kogut & Restivo - False confession / False Accusation

Halstead, Dennis AND Kogut, John AND Restivo, John; murder, sexual assault; NRE: false confession (Kogut), perjury/false accusation, false/misleading forensic evidence, police officer misconduct, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

K15 "Restivo and Halstead were convicted for the 1984 rape and murder of a teenage girl. Yet they and another man, John Kogut, were freed in 2002 when DNA from the victim's body did not match the three defendants.

"Kogut had initially admitted to the crime but said he was forced into a false confession."

N11 [The three were arrested in 1985, and convicted in 1986.] "The men were believed to have raped and murdered a 16-year-old girl.

"Halstead and Restivo were incarcerated until June 11, 2003, when their convictions were vacated. Forensic studies had proven that neither man was the source of semen that had been extracted from the victim, and the men's attorneys discredited other evidence that suggested that the victim had been raped in a van that Restivo owned. Kogut's conviction was also overturned.

"The [civil lawsuit] jury...found that [Detective Joseph] Volpe fabricated evidence...maliciously prosecuted [Halstead and Restivo]...[and] violated [their] right to due process. Thus, Volpe was liable for wrongful incarceration [of the two]...The jury determined that the men's damages totaled $36 million."

[Halstead and Kogut] [580:413]; 2nd Dept. 2/24/92; affirmed

"[W]e are satisified that the verdict of guilt was not against the weight of the evidence."

[Restivo] [619:584]; 2nd Dept. 11/7/94; affirmed

"[W]e are satisified that the verdict of guilt was not against the weight of the evidence."

from NRE synopsis (by the Innocence Project):

"In 1986, Halstead and Restivo were tried separately from Kogut, who was 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. 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 [an] unknown assailant.

"In December 2005, the Nassau County [DA's] office announced that it would drop all charges against Dennis Halstead and John Restivo after John Kogut was found not guilty by Nassau County Judge Victor M. Ort on December 31, 2005."

"On December 5, 1984, the body of the 16-year-old victim was discovered, naked, in a wooded area of Lynbrook...She was last seen leaving her job at the local roller rink almost a month before.

"The medical examiner determined the cause of death as ligature strangulation; semen and sperm found on the victim's vaginal swabs suggested she had been raped."

"The local police department believed the victim's death to be connected to similar crimes involving the disappearances of other young women.

"By March 1985, investigators had focused their investigation in part on Dennis Halstead, who was believed to have been associated with another young woman who had disappeared. Early that month, John Restivo had been interviewed as part of the investigation and mentioned that he was acquainted with John Kogut, a sometime employee of Restivo's and his brother's moving business.

"In late March 1985, Kogut was brought to police headquarters for a polygraph examination. After three polygraphs, a detective analyzed Kogut's 'polygraph charts' and determined that Kogut was lying when he denied involvement in the victim's murder. Multiple officers proceeded to interrogate Kogut for more than 18 hours, repeatedly telling him that he had failed the polygraph examinations. Kogut was bombarded with allegations that he, John Restivo, and Dennis Halstead had abducted, raped, and murdered the victim. Eventually Kogut signed a confession that had been handwritten by a detective; this confession was the sixth version of facts allegedly given by Kogut.

"According to the final version of the confession, Restivo, Kogut, and Halstead were driving in Restivo's van. They encountered the victim, who got in the van voluntarily. Halstead and Kogut stripped the victim and Halstead raped her. They arrived at a cemetery, where Restivo stopped the van and also raped the victim. During the attack, the victim drifted in and out of consciousness. When she began to regain consciousness after the rape, she grew frantic and Kogut strangled her with a hard nylon rope.

"Kogut's confssion did not include any details about the crime not previously known by law enforcement. Kogut was taken to the site where the victim's body had been discovered, but again was unable to offer any new details about the crime.

"Based on Kogut's alleged confession, Restivo's van was searched, and several hairs were recovered and tested in a forensic lab."

"John Restivo and Dennis Halstead were tried together for rape and murder in November 1986; John Kogut had already been tried separately and convicted of rape and murder in March 1986.

"The prosecution argued that the two hairs found in Restivo's van were corroborative of Kogut's confession. An analyst testified that two hairs found in the front passenger seat were microscopically similar to those of the victim. The two hairs appeared identical to the victim's from 'root to tip, including artificial treatment.' This testimony was improper, because there is no adequate empirical data on the frequency of various class characteristics in human hair. It is impossible to say definitively that strands of hair are identical.

"The defense presented the testimony of hair comparison expert Dr. Peter DeForest. Dr. DeForest testified that the hairs found in Restivo's van displayed 'advanced banding,' a condition caused by bacteria eating away at the interior of the hair shaft. Advanced banding occurs only after death and only when the hair is still attached to the decomposing body, meaning that the victim could not have deposited the hairs while she was alive and supposedly in Restivo's van.

"At the time of trial, research on advanced banding was relatively new and no studies had been published about it. The state called its own expert, who testified to the limits of contemporary research, and argued in closing that 'for all anyone knows, banding occurs right after death, as when the heart stops and the lungs stop working and the blood settles.'

"In addition to Kogut's confession and the two hairs, the state presented the testimony of multiple witnesses who alleged that they had heard Restivo and Halstead make incriminating statements. Both men were ultimately convicted."

"[Post-conviction] defense attorneys...secured an affidavit from the state's expert witness, who had testified in 1986 regarding the hairs found in Restivo's van. The expert 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 had been dead for at least 8 hours, if not days or weeks. The banding on these hairs was 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 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 retrial, 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 lawyer, [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 in December 2005. 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. Before the end of the month, [ADA] Fred Klein said in court that the case against Halstead and Restivo should be dismissed because he could not prove guilt beyond a reasonable doubt."

[* Nickel's bench trial, by contrast, lasted barely two days. ]

[** Again, in stark contrast, in the Nickel case, Judge Paul Czajka made zero specific findings upon rendering his verdicts.]

"In April 2014, a jury awarded Halstead and Restivo $18 million each for their time spent wrongfully incarcerated. Kogut was not part of the civil lawsuit. Kogut received $1.5 million from the New York Court of Claims. Halstead received $2.2 million.

"In 2016, Restivo and Halstead filed another federal lawsuit, claiming that Nassau County had refused to pay the settlement. The new lawsuit said Restivo and Halstead voluntarily withdrew their lawsuit based on false representations by Nassau County that it would indemnify them. The lawsuit sought treble damages based on the $36 million plus another $7 million in attorneys' fees, costs, interest and other expenses.

"That lawsuit was eventually voluntarily dismissed. Nassau County appealed the jury verdict and lost. In January 2018, the U.S. Supreme Court declined to accept a further appeal and the money was ordered disbursed within 30 days."

[The NRE synopses for Halstead and Restivo are identical. However, the synopsis for Kogut does add a few additional details:]

"The body had been covered by leaves and debris and was located a short distance from the roller rink."

"[S]erology tests to determine the semen donor's blood type were never performed."

[All emphases added unless otherwise noted.]