Dennis Halstead, left, and John Restivo were wrongly convicted in...

Dennis Halstead, left, and John Restivo were wrongly convicted in a murder case and spent 18 years in prison before DNA evidence exonerated them in 2003. A jury awarded them $43 million in damages in 2014. Credit: Steve Pfost

Nassau County is making a last-ditch effort to fight a federal court ruling upholding a $43 million judgment won by two men who were exonerated — after spending years in prison — in the 1984 rape and murder of a Lynbrook teenager.

The county on Thursday filed a motion seeking a rehearing before the U.S. Court of Appeals for the Second Circuit in Manhattan. The court on Jan. 19 had upheld a federal jury’s 2014 award to John Restivo and Dennis Halstead in their case against the estate of Joseph Volpe, the late Nassau police detective accused of framing the men.

The county, which indemnified Volpe, argued that the appeals court erred by affirming the jury’s interpretation of certain evidence and the trial judge’s allowance of some testimony. County officials asserted that a 2012 federal jury verdict that found no wrongdoing by police — one that a judge later overturned — was the proper one.

“A rehearing is necessary and appropriate,” County Attorney Carnell Foskey said in a statement. “The county believes strongly that the original jury verdict finding no liability by any county defendant was correct.”

Should Nassau’s motion be denied, its final remedy before being forced to pay the $43 million judgment would be petitioning the U.S. Supreme Court.

“Rather than continuing pretending it didn’t happen — and in the process building up thousands and thousands more in legal fees and interest — what the county should be doing is spending money making sure that this kind of thing never happens again,” said Nick Brustin, an attorney for the plaintiffs.

Restivo and Halstead allege that Volpe violated their civil rights by planting and withholding evidence during his investigation into the 1984 rape and murder of 16-year-old Theresa Fusco. The men were convicted and spent nearly 18 years in prison before being released in 2003 upon the discovery of DNA evidence exonerating them.

Alleging their convictions were the result of false confessions and planted evidence, Restivo and Halstead sued. In 2012, a federal jury in Central Islip found no wrongdoing by police and declined to award damages.

U.S. District Court Judge Joanna Seybert in 2013 overturned that decision, citing faulty jury instructions, and granted a new civil trial. The second trial in 2014 resulted in the jury awarding Restivo and Halstead $36 million in damages, as well as legal fees and interest that now total an additional $7 million.

Should the county lose its motion for a new appeals court hearing, it would likely need to bond to pay the $43 million judgment. A recently created county fund to pay legal judgments and settlements is only budgeted to include $37.6 million for the entire year.

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