Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Second Circuit Upholds $36 Million Jury Award, $5 Million in Fees in Wrongful Conviction Case

by Matt Clarke

On January 19, 2017, the Second Circuit Court of Appeals upheld the award of $36 million in damages and nearly $5 million in attorney fees to two New York men who were wrongly convicted of rape and murder, and spent 18 years in prison.

In January 1985, Nassau County homicide detective Joseph Volpe heard that a man had made suspicious statements about the 1984 murder and rape of a sixteen-year-old girl, Theresa Fusco. Following an eleven-hour interrogation, the man said John Restivo had made suspicious statements to him. Restivo was picked up, held and interrogated for 24 hours, and allegedly physically assaulted. He eventually signed a statement that he had heard Dennis Halstead talk about the crime.

Police then interrogated John Kogut, who worked with Restivo and Halstead. Following multiple, lengthy interrogations during which Volpe allegedly threatened him and falsely said they already had scientific evidence of his guilt, Kogut signed a confession that implicated Restivo and Halstead.

Kogut was convicted of the rape and murder but refused to testify at Restivo and Halstead’s trial, rendering his confession inadmissible against them under New York state law. Nonetheless, Restivo and Halstead were jointly tried and convicted; the main evidence against them was hairs from Fusco that were allegedly found in Restivo’s van. They received sentences ranging from 30 years to life.

After spending 18 years in prison, all three were exonerated by DNA testing. They filed federal civil rights actions pursuant to 42 U.S.C. § 1983 against Volpe and others involved in their wrongful convictions. Kogut’s confession was admitted into evidence and the jury found in favor of the defendants. Restivo and Halstead’s motion for a new trial was granted because the confession had been improperly admitted into evidence against them. The dismissal of Kogut’s claims was affirmed by the Second Circuit. See: Kogut v. County of Nassau, 789 F.3d 36 (2d Cir. 2015).

Following a second trial in April 2014, the jury deliberated for just two hours before returning a verdict in favor of Restivo and Halstead and awarding them $18 million each against Volpe’s estate. [See: PLN, Oct. 2015, p.27]. The district court then granted $4,997,914.55 in attorney fees to the New York City law firm of Neufeld Scheck & Brustin (NSB), which had represented the men. NSB attorneys Anna Benvenutti Hoffmann and Alexandera Lampert represented them on appeal.

The chief evidence against Volpe was post-mortem root banding (PMRB) on the hairs allegedly recovered from Restivo’s van, which seemed to prove they actually came from the victim’s body during the autopsy and had been planted into the evidence bag containing hairs found in the van. Further, it appeared Volpe failed to turn over exculpatory evidence that what may have been the victim’s pants were found under the seat of a recovered stolen car soon after the murder.

PMRB was shown to appear at least 8 hours – usually several days – after a body begins to decompose. It could not have happened within the few minutes the body was alleged to have been in the van. Further, the hairs showed no mechanical damage as one would expect of hairs recovered from the floor of a vehicle.

Volpe’s estate appealed, attacking the use of PMRB and raising other issues. The Second Circuit upheld the district court’s limited admission of PMRB evidence and overruled all of Volpe’s challenges, including an attempt by the county to renege on its agreement to indemnify Volpe and to have the $2.2 million that Restivo and Halstead had previously received from the State of New York as statutory compensation for their wrongful convictions deducted from the jury award. The judgment of the district court was affirmed. See: Restivo v. Hessemann, 846 F.3d 547 (2d Cir. 2017), petition for cert. filed.

“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 after the 2014 jury verdict. “The most important thing to me was that the county is finally held accountable for ruining my life.” 

Additional source:

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal cases

Restivo v. Hessemann

Kogut v. County of Nassau