John Kogut

The Crime

On Nov. 10, 1984, 16-year-old Theresa Fusco was fired from her job at the snack bar at the Hot Skates roller skating rink in Lynbrook, on the south shore of Long Island, New York. She was seen leaving in tears at 9:45 p.m. to walk to her home four blocks away. She did not come home, however.

On Dec. 5, 1984, her naked body was found covered by leaves and debris in a wooded area not far from the roller rink.

The Investigation

An autopsy revealed that Ms. Fusco had died as a result of ligature strangulation. Vaginal swabs taken during the autopsy revealed the presence of semen and spermatozoa — evidence that she had been sexually assaulted. However, serology tests to determine the blood type of the semen were not performed.

The Nassau County Police Department was under enormous pressure to solve the crime, particularly since there had been several other recent disappearances of young girls in the area.

On March 26, 1985, police arrested 21-year-old John Kogut on charges of second-degree murder and rape. Police said that Mr. Kogut, a former resident of Lynbrook who was living in Island Park, New York, surfaced as a suspect during the interviews of an estimated 400 people. Police said he confessed and implicated two others: 26-year-old John Restivo and 31-year-old Dennis Halstead. 

Mr. Kogut, Mr. Halstead, and Mr. Restivo had initially been interrogated as part of an investigation into the disappearance of another girl. Police said that during Mr. Kogut’s interrogation, he admitted being involved in the abduction rape and murder of Ms. Fusco.

Police said that after three polygraph examinations, Mr. Kogut, though he was told that he failed the polygraphs, said he was innocent. However, after nearly 18 hours of interrogation, the police emerged with a seven-page statement handwritten by a detective. The statement was the sixth version, though the first five were not written down. Mr.  Kogut was then taken to the crime scene. He could not point the police to any evidence from the crime that was missing, such as Ms. Fusco’s clothes, jewelry, or murder weapon. The next day, the confession was recorded on video tape. It contained no details that were not previously known by law enforcement.

According to the confession, Mr. Restivo, Mr. Halstead, and Mr. Kogut were all in Mr. Restivo’s van. They approached Ms. Fusco, who was walking, and she got into the van voluntarily. When the men indicated they wanted to engage in sex, Ms. Fusco demanded to get out. At that point, according to the statement, she was stripped and beaten, and then was raped by Mr. Halstead and Mr. Restivo. They drove to a cemetery, where Ms. Fusco was taken out of the van. In the statement, Mr. Kogut said he strangled her with a piece of rope. Ms. Fusco’s body was then rolled into a blanket and dumped in another location.

Mr. Restivo’s van then was searched and several hairs were recovered. 

The Trials

All three men were charged with rape and second-degree murder. Mr. Kogut was tried first, and Mr. Restivo and Mr. Halstead were tried together after him. All three men denied having anything to do with the crime and offered separate alibi defenses. 

At Mr. Kogut’s trial, prosecutors argued that the hairs found in Mr. Restivo’s van corroborated the confession.

An analyst testified that two hairs found in the front passenger seat were microscopically similar to those of Ms. Fusco. “In this particular instance… the questioned hair could have originated from the scalp of Theresa Fusco, with a high degree of probability,” the analyst testified. This testimony was improper, because there was not adequate empirical data on the frequency of various class characteristics in human hair to apply any degree of probability to a hair comparison.

Prosecutors also introduced snitch testimony against all three men. Mr. Kogut was convicted in May 1986 and was sentenced to 31 years and six months to life in prison. Mr.  Restivo and Mr. Halstead were convicted in November 1986 and were sentenced to 33 years and four months to life in prison.

The Exoneration

Centurion Ministries began working on behalf of all three defendants in 1994. The Innocence Project began working on Mr. Restivo’s case in 1997. Mr. Kogut was represented by Centurion Ministries attorney Paul Casteleiro and the law firm of Wilmer, Cutler & Pickering. Mr. Halstead was represented by Adele Bernard of Pace Law School’s Criminal Justice Clinic.

There were numerous rounds of DNA testing over a period of 10 years. Each round excluded all three men. The prosecution initially argued that the samples tested — vaginal slides — were not the “best” samples available and could have failed to detect semen from the men, which had been present on the original swabs. 

In 2003, however, the defense team obtained property records from the police department which led to the discovery of an intact vaginal swab that had never been tested. DNA testing on the spermatozoa on the vaginal swab excluded all three men. The single DNA profile could not be identified.

In addition, defense attorneys also secured a new affidavit from former detective Nicholas Petraco, who concluded that based on 20 years of research and expertise, the hairs displayed “post-mortem root banding,” a sign of decomposition that only occurs while hairs are attached to a corpse that has been dead for at least 8 hours, if not days or weeks. 

He said the banding on these hairs was similar to those found on dozens of hairs that had been removed during the autopsy and were in unsealed envelopes in a police department laboratory. Because Ms. Fusco was only alleged to have been in the van for a few minutes after death, he concluded that the hairs could not have been shed during that time, and were instead autopsy hairs.

As a result, all three convictions were vacated in June 2003 and the men were released. 

The prosecution retried Mr. Kogut and sought to rebut the DNA evidence by arguing that Ms. Fusco had consensual sex with an unknown male prior to her rape and murder. Mr. Kogut’s attorney, Paul Casteleiro, argued that the confession was false, and won a motion to have expert testimony on false confessions admitted for the first time in the state of New York. 

On Dec. 21, 2005, after a three-month bench trial, Nassau County Supreme Court Justice Victor M. Ort acquitted Mr. Kogut. On Dec. 29, 2005, the prosecution dismissed the charges against Mr. Restivo and Mr. Halstead.

In April 2014, a jury awarded Mr. Halstead and Mr. Restivo $18 million each. Mr. Kogut, who was not part of the lawsuit, was awarded $1.5 million by the New York Court of Claims.