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$36 Million Awarded to Two Men Wrongfully Convicted of Rape, Murder

$36 Million Awarded to Two Men Wrongfully Convicted of Rape, Murder

by David Reutter

A New York federal jury awarded $36 million to two of three former prisoners wrongfully convicted in the 1984 rape and murder of a teenage girl.

The horrific death of Theresa Fusco, 16, was a high-profile crime in Nassau County. She disappeared on November 10, 1984, and her naked and brutalized body was found several weeks later under debris just a short distance from her job at a roller rink, the last place she was seen alive. She had been strangled to death and sexually assaulted.

After months without leads, Nassau County detectives questioned Harold Smyle, who had a history of psychological illness, for hours until they coerced him into saying that John Restivo knew who had committed the crime.

Numerous detectives surrounded Restivo on the street on March 5, 1985, forcing him to accompany them to police headquarters. Over the next 24 hours they used “unconstitutional interrogation techniques, including but not limited to their unjustified use of physical violence to procure false confessions and statements,” while Restivo “was prohibited from leaving headquarters, calling his girlfriend or contacting his lawyer despite repeatedly making requests to do so.”

With those statements in hand, detectives obtained a phone wiretap for Dennis Halstead, whom they had coerced Restivo into implicating. On March 21, 1985, detectives brought John Kogut, another suspect, to police headquarters. Over an almost 18-hour period they used “increasingly and coercive interrogation techniques” to obtain a confession that incriminated Kogut, Restivo and Halstead in Fusco’s rape and murder. Hairs belonging to Fusco were allegedly found in Restivo’s van during a search after the trio was arrested.

The three defendants were subsequently convicted of rape and murder, and sentenced to prison terms of more than 30 years to life, but continued to assert their innocence and fought to clear their names. Between 1993 and 2005, DNA testing was conducted five separate times on vaginal swabs, which contained seminal fluid, taken during Fusco’s autopsy. Each time, Restivo and Halstead, whom Kogut had implicated as the rapists, were “conclusively excluded” as the contributors of the semen recovered from Fusco’s body.

Regardless, the Nassau County District Attorney’s Office insisted on retrying them after their convictions were vacated in June 2003. The court that retried Kogut in 2005 found him not guilty on all counts. Expert testimony presented during the retrial established that the hairs found in Restivo’s van had “post-mortem banding,” which meant they came from Fusco’s body many hours or several days after her death – e.g., an indication they had been planted. Following the verdict, the charges against Restivo and Halstead were dismissed. The three men had served 18 years in prison before being exonerated.

Civil rights actions filed by Restivo, Halstead and Kogut alleged that detectives Joseph Volpe and Charles Fraas had fabricated evidence and maliciously prosecuted them. When the case went to trial in 2012, the jury ruled in favor of the defendants. The district court dismissed Kogut’s claims but granted a new trial to Halstead and Restivo due to problems with the jury instructions. Following another trial on April 11, 2014, the jury found Detective Volpe had violated Restivo and Halstead’s constitutional rights, awarding them $18 million each from Volpe’s estate, as he had since died. Detective Fraas was found not liable.

“A million dollars a year – it isn’t going to give me back those 18 years, right, but I think it was fair,” Restivo said. “The most important thing to me was that the county is finally held accountable for ruining my life.”

Nassau County has appealed the total $36 million verdict, while Restivo and Halstead cross-appealed a pre-trial order by the district court. On May 14, 2015, the Second Circuit Court of Appeals affirmed the dismissal of Kogut’s claims related to his wrongful conviction. See: Kogut v. County of Nassau, 789 F.3d 36 (2d Cir. 2015).

Restivo and Halstead are represented by attorneys Nick J. Brustin, Anna B. Hoffman, Leon Friedman, David Graff, Rachael Ann Kierych, Alexandra L. Lampert, Peter Jon Neufeld, Barry C. Scheck, Monica R. Shah and Joshua E. Dubin. The case remains pending on appeal. See: Restivo v. Nassau County, U.S.D.C. (E.D. NY), Case No. 2:06-cv-06720-JS-SIL.

Additional sources: Newsday,,



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Related legal cases

Kogut v. County of Nassau

Restivo v. Nassau County