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Theresa Fusco case: Jury weighs damages for overturned murder, rape convictions

Dennis Halstead, left, and John Restivo walk into

Dennis Halstead, left, and John Restivo walk into the federal courthouse in Central Islip on Sept. 19, 2012. Credit: Steve Pfost

A federal jury in Central Islip is expected to start hearing evidence Tuesday on whether Nassau County should pay damages to two men whose convictions in the 1984 murder and rape of Lynbrook teenager Theresa Fusco were thrown out.

The jury decided late Friday that the civil rights of John Restivo and Dennis Halstead had been violated by now-deceased Nassau Det. Joseph Volpe because, it found, he withheld and planted evidence in the case.

Halstead, Restivo and a third man, John Kogut, spent 17 years in prison for the Lynbrook rape and murder of Fusco, 16, but were released in 2003 when their DNA failed to match sperm taken from Fusco's body. Kogut had been tried separately from Restivo and Halstead, but all three were convicted.

The Nassau County district attorney's office retried Kogut in 2005 but he was acquitted in a bench trial. At that point, prosecutors dropped charges against Restivo and Halstead.

Federal civil rights litigation brought by Kogut, Restivo and Halstead has wound its way through the courts since 2006, starting with a suit against the county and more than three dozen Nassau officers who were allegedly involved in the investigation.

In 2012, a federal jury decided in favor of the county and said Kogut, Restivo and Halstead were not entitled to any damages.

But U.S. District Judge Joanna Seybert in 2013, ruling on a plaintiff's motion, overturned that verdict against Restivo and Halstead, allowing them to proceed with a new trial. Seybert did not overturn the jury's decision on Kogut.

Seybert said she reversed the verdict because the jury had heard about Kogut's confession in his criminal case, in which he implicated Restivo and Halstead in the Fusco crimes.

The confession -- later determined to be false by a judge in Kogut's retrial -- was not admissible as evidence in Restivo and Halstead's joint criminal case, Seybert said. The civil jury should not have been allowed to think, without a "nuanced" explanation of the law, that the confession contributed toward officials charging Restivo and Halstead with the crime, she ruled.

Various motions and rulings in the civil case eventually whittled the defendants down to Volpe and another detective, Charlie Fraas, who was cleared of wrongdoing by the civil jury.

The lead attorney for Restivo and Halstead, Nick Brustin, of Manhattan, declined to comment Monday, as did Nassau County Attorney Carnell Foskey.

Fusco's mother, Concetta Napoli, said she was outraged by the idea that Restivo and Halstead might be awarded monetary damages. "They got away scot free and they should have crawled under a rock," she said Monday. "They got away with murder and they should have gone and hidden somewhere."

Napoli also defended the conduct of Volpe, who died in 2011, saying he did nothing wrong in his investigation and adding that he is "not even here to defend himself."

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