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Defense: Cops in 1984 murder did honest job

Defendant John Kogut listens to Nassau County Court

Defendant John Kogut listens to Nassau County Court Judge Victor Ort as he finds him not guilty of all counts in murder/ rape of Theresa Fusco. (Dec. 21, 2005) Credit: Dick Yarwood

A malicious prosecution lawsuit against Nassau County went to the jury late Tuesday after lawyers for the county argued that detectives who arrested three former Lynbrook men in the homicide and rape of a young woman in 1984 may have made mistakes, but conducted an honest investigation.

Lawyers for the three men -- jailed for 18 years before being exonerated -- said Nassau police Det. Joseph Volpe and others had coerced a false confession from one of the men, John Kogut, and planted evidence to implicate Kogut, then 22, and his co-defendants, Dennis Halstead, then 27, and John Restivo, 31, at the time.

The actions of Volpe, who died last year, "may not have been perfect, but they are consistent with someone who's doing a job," Lou Freeman, a private attorney working for the county, told the jury in his summation in U.S. District Court in Central Islip.

"He is not a person who is callous, and he is not a person who wants to hide evidence," Freeman said before Judge Joanna Seybert gave legal instructions to the jurors and they retired to deliberate.

However, neither Freeman nor another attorney for the county, Lee Ginsberg, attempted to refute DNA evidence that ultimately cleared the three men.

They were released from prison in 2003 after a swab with DNA taken from the victim, Theresa Fusco, 16, of Lynbrook, did not match any of theirs. Kogut was retried and acquitted in 2005, and prosecutors elected not to retry the other men.

During a brief rebuttal, attorney Barry Scheck, representing Restivo and Halstead, told jurors: "The DNA is the most powerful evidence," and noted that other lawyers had not challenged it.

The civil lawsuit seeks $190 million in damages on grounds of malicious prosecution and the denial of a fair criminal trial, in part because it alleges Volpe did not turn over evidence that might have helped the defense in the criminal case.

Freeman said the evidence, including photos of a car stolen on the night of Fusco was killed that might have been related to the crime, may not have been turned over to prosecutors, but was "hidden in plain sight" in Volpe's case file and available to prosecutors.

The men were charged with murdering and raping Fusco, who disappeared while walking home from work on the night of Nov. 10, 1984. Her body was found 25 days later, and detectives arrested the men the following March after following up on tips from other Lynbrook residents.

Kogut's confession said that he, Halstead and Restivo committed the crime. But Scheck and Kogut's attorney, Anthony Grandinetti, said DNA showed the statement, which never mentioned a fourth man, could not have been true.

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