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Nassau fights wrongful prosecution charges

Left, John Restivo and Dennis Halstead celebrate after

Left, John Restivo and Dennis Halstead celebrate after charges are dropped against them in the rape and murder of Theresa Fusco. Right, defendant John Kogut listens to Nassau County Court Judge Victor Ort as he finds him not guilty of all counts in the rape and murder of Theresa Fusco. (Dec. 29, 2005 ; Dec. 21, 2005) Credit: Dick Yarwood

Lawyers defending Nassau County in a $190 million malicious prosecution lawsuit shot back against claims that police railroaded three innocent men in 1984, securing murder convictions against them in a heinous crime they didn't commit.

Lou Freeman, a Manhattan-based lawyer representing the county, told jurors Thursday that when you look at the weight of the evidence against John Kogut, then 22, John Restivo, then 27, and Dennis Halstead, then 31, "through the prism of 1984," the police investigation into the death of 16-year-old Theresa Fusco was proper and justified.

"The police department did not hide anything," Freeman said in an opening statement Thursday.

Police said at the time that the three men picked Fusco up in their van in November 1984, after offering her a ride home. Restivo and Halstead then raped her, and Kogut choked her before they left her body in a wooded area in Lynbrook, police said at the time.

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 profiles.

Nassau prosecutors brought new charges against Kogut in 2005, but he was acquitted after a nonjury trial. In his decision from the bench, then Acting State Supreme Court Justice Victor Ort said he did not believe key physical evidence in the case, nor did he trust Kogut's confession.

Prosecutors then dropped charges against Restivo and Halstead.

Freeman told the jury that a videotape from 1985 showing Kogut confessing the crime to a Nassau prosecutor is authentic.

He cited several details Kogut told police that they never would have known otherwise, including a phrase Fusco said to them, "I'm going to tell!" that her mother confirmed she often used, and the exact place they picked her up.

Freeman also rejected the plaintiffs' claim that police planted Fusco's hairs in Restivo's van, and their accusations that police buried important evidence about a car that could have been connected to the murder.

The case continues Tuesday in Central Islip.

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