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Supreme Court declines to hear Nassau County appeal of ruling

Dennis Halstead, John Kogut and John Restivo together

Dennis Halstead, John Kogut and John Restivo together outside the jail after their convictions were set aside in the 1984 rape and murder of 16-year-old Theresa Fusco on June 11, 2003. Credit: Newsday

The U.S. Supreme Court on Monday declined to hear Nassau County’s appeal of a federal court ruling upholding a $43 million judgment won by two men who — after spending years in prison — were exonerated in the 1984 rape and murder of a Lynbrook teenager.

The court’s refusal to hear the case means Nassau County has exhausted its final appeal and must pay John Restivo, 59, and Dennis Halstead, 55, $36 million in damages, as well as legal fees and interest that now total an additional $7.8 million, according to one of the men’s attorneys, Anna Benvenutti Hoffmann of Manhattan.

“They are very happy that the Supreme Court did not take the case,” Hoffman said. “This is a saga that has been going on since 1985. It couldn’t be more overdue.”

The county — forced by a federal judge to set aside $45 million — has 30 days to pay up.

“Nassau County does not plan to pursue any further action and will adhere to the court’s decision,” Mike Martino, a spokesman for Nassau County Executive Laura Curran, said in a statement.

Restivo, Halstead and a third man, John Kogut, were convicted of the rape and murder of 16-year-old Theresa Fusco, and each spent 18 years in prison.

In 2003, DNA tests were conducted of genetic material recovered from Fusco after her body was found, and they showed the presence of DNA from Fusco and an unknown man. Additional testing excluded Restivo, Halstead and Kogut as a contributor of that DNA. No one else has been charged in the case.

The three men, released the same year, sued, saying they had been convicted on the basis of false confessions and planted evidence, and that evidence had been withheld.

Restivo and Halstead alleged that Joseph Volpe, the late Nassau police detective accused of framing them, had violated their civil rights by planting and withholding evidence.

In 2012, a federal jury in Central Islip found no wrongdoing by police and declined to award damages. But in 2013 U.S. District Judge Joanna Seybert overturned that decision, citing faulty jury instructions, and granted a new civil trial to Restivo and Halstead. The second trial in 2014 resulted in the jury awarding Restivo and Halstead $36 million in damages, legal and other costs.

Kogut confessed to the crime but a judge later ruled it was false and acquitted him after a retrial. He was excluded from the civil trial.

The county, which indemnified Volpe, had fought the judgment for more than three years, refusing to give up even after the U.S. Court of Appeals for the Second Circuit in Manhattan on Jan. 19, 2017 upheld the jury award.

“It’s our hope that they don’t wait the 30 days,” Hoffman said. “The money is sitting there. Our clients have waited long enough already. They’re ready to move on with their lives.”

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