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Lawyers sum up in wrongful conviction case

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

Attorneys for three former Lynbrook men argued to a federal court jury in Central Islip Monday that their clients had been maliciously prosecuted and wrongly convicted of the 1984 murder of a teenage girl.

John Kogut was 22 back then, and his attorney, Anthony Grandinetti, said Monday in his summation that the young man came from a broken home and was taken away from his parents at age 5. He abused alcohol and drugs and was easy prey for detectives to coerce him into falsely confessing to the murder, Grandinetti said.

Attorney Barry Scheck said Kogut's confession to the lead detective in the case could not be used against his clients -- John Restivo, then 27, and Dennis Halstead, then 31 -- in their trials, so police planted hairs of the victim, 16-year-old Theresa Fusco of Lynbrook..

The lawyers made their closing arguments before U.S. District Court Judge Joanna Seybert after a two-month old civil trial that stems from the criminal case. Kogut, Restivo and Halstead were released from prison in 2003 when newly discovered DNA, semen on a swab taken from Fusco's body, failed to match their DNA.

In court papers, the attorneys said they are seeking $190 million from Nassau County for the wrongful actions of its police officers, including the lead homicide detective, Joseph Volpe, who has since died.

Attorneys for the county are expected to sum up Tuesday, followed by a short plaintiffs' rebuttal. The judge was expected to instruct the jury Wednesday and jurors would begin deliberating then.

Lou Freeman, a private attorney retained by the county, argued in his opening statement that police had not engaged in a cover-up and that their actions should be viewed "through the prism of 1984," before DNA and other scientific testing were developed.

Police said at the time that the men picked Fusco up in a van after she left her job at Hot Skates, a local rolling rink. They raped and strangled her, then dumped her body, police said.

Nassau prosecutors retried Kogut in 2005, but he was acquitted after a nonjury trial. Acting State Supreme Court Justice Victor Ort ruled that neither the key physical evidence in the case nor Kogut's confession were credible.

Prosecutors decided not to retry Restivo and Halstead.

Grandinetti and Scheck both said that prosecutors brought the second prosecution in bad faith because DNA testing showed that there would have had to be a fourth man in the van or Fusco had sex with another man before the murder.

That flew in the face of the prosecution's argument at the first trial that Fusco was a virgin, and the semen belonged to one of the defendants, the attorneys said. Scheck also said some of Fusco's hairs that police said were in the van showed signs of hair from a long-dead body, not one dead for less than an hour, supporting the contention they came from her autopsy and were planted as evidence.

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