January 29, 2020 • 42 mins
On December 5th, 1984, the naked body of Theresa Fusco was pulled out of a wooded area in Lynbrook, NY - the 3rd in a string of recent disappearances, putting pressure on police to find the monster among them. The medical examiner determined that a rape lkely occurred and the cause of death was ligature strangulation. Dennis Halstead had been linked to one of the victims, and in a police interview about Halstead, John Restivo inadvertently mentioned an occasional employee John Kogut.
When police interrogated Kogut for 12 hours, during which interrogators lied to him about his failing a polygraph, Kogut signed a confession that was hand-written by one of the detectives. With the false confession, the trio were convicted and sentenced to 33 and a half years in prison.
John Restivo and Innocence Project Senior Staff Attorney Nina Morrison joined Jason at the Atlanta Innocence Network Conference to tell this amazing and terrifying tale.
https://www.wrongfulconvictionpodcast.com/with-jason-flom
Wrongful Conviction is a production of Lava for Good™ Podcasts in association with Signal Co. No1.
See omnystudio.com/listener for privacy information.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
On December fifth, nineteen eighty four, the naked body of
a sixteen year old girl was found in a wooded
area of Lynbrook, Long Island. The victim had been last
seen leaving her job at a local roller rink about
a month earlier. The medical examiner determined that the cause
of death was ligature strangulation and seamen found on her
Baginal swabs suggested that she had been raped. By March
(00:23):
nineteen eighty five, authorities believed that this rape and murder
were connected to similar disappearance as an investigator started focusing
on Dennis Halstead, who was believed to have been associated
with another young woman who had disappeared. John Restivo had
been interviewed as part of this investigation and mentioned that
he was acquainted with John Cogut, an occasional employee of
his and his brother's moving business. After cogd was given
(00:46):
three polygraphs, police asserted that he lied when denying involvement
with the disappearance of the sixteen year old victim. He
endured twelve hours of aggressive interrogation and eventually he cracked
and signed a confession that was handwritten by one of
the detectives. The sixth version of events given by Cogd,
containing information all of which was previously known to investigators.
Speaker 2 (01:07):
According to Kogo's false.
Speaker 1 (01:09):
Confession, the victim voluntarily got into Restivo's van, where Cogd
and Halsted stripped her and Halsted raped her. Further into
this coerce statement, he said that when they arrived at
a cemetery, Restivo also raped her and Cogit strangled her.
Speaker 2 (01:23):
When she regained.
Speaker 1 (01:24):
Consciousness and became frantic. With the false confession at a
number of hairs found in Restivo's band said to have
matched the victims. The three men were tried over the
course of nineteen eighty six. John Cogo was tried separately
and convicted of rape and murder in March, then Is
Halsted and John Restivo in November. Through the concerted efforts
(01:44):
of Centurion Ministries, Paced Law School's Post Conviction Clinic, Private Council,
and the Innocence Project, the defense used police department property
records to finally locate and test intact baginal swabs for
DNA in two thousand and three, ultimately excluding the three
men as the perpetrators. John Restivo spoke with US at
the Atlanta Innocis Network conference. To tell their horrifying story. Together,
(02:09):
they spent over half a century in prison for a
crime they did not commit. This is wrongful Conviction with
Jason plom Welcome back to Wrongful Conviction. I'm especially excited
(02:29):
today because I've got a guest who I've wanted to
have on my podcast from long before I even had
a podcast. So ever since I read your story in
The New Yorker, John Restivo, I've been sort of in
awe of your story, your your case, your everything. So
I'm really I'm really happy you're here.
Speaker 3 (02:49):
Yeah, what a long, strange trip it's been.
Speaker 2 (02:51):
Yeah, how about it?
Speaker 1 (02:52):
And like I always say, I'm sorry you're here, but
I'm happy you're here.
Speaker 2 (02:55):
So and with you.
Speaker 1 (02:57):
Nina Morrison is a return guest on this year today.
Nina is the senior staff attorney at the Innocence Project
in New York.
Speaker 2 (03:04):
Welcome back, Thank.
Speaker 3 (03:06):
You, Jason.
Speaker 4 (03:06):
It's always so nice to be.
Speaker 1 (03:08):
Here, and this is going to be an amazing experience
for me, I think for everyone who's listening as well,
mainly because of you, John. So let's get right into it.
So and Yours is a New York case, right, which
makes it personal to me as a New Yorker, a
lifelong New Yorker and just by way of background, John
was convicted of a rape murder along with two other
(03:30):
innocent men and sentenced to thirty three and a half
years of life. Could well have been executed if not
for Governor Mario Cuomo blocking repeatedly the death penalty in
New York State. I think that's an important thing to
touch on. But let's go back to it. All these
crimes we talk about are horrible. This one is particularly terrible, right.
This is the rape and murder of a young girl,
(03:51):
sixteen year old girl. And obviously everybody wants to see
those crimes solved, but they don't want to see it
solved this way.
Speaker 2 (03:59):
I mean, when we get the wrong people.
Speaker 1 (04:01):
Locked up, whoever it is that did this was free
to commit other heinous crimes. But take us back to
the crime itself. And how did you first hear about it?
I mean you were at the time, you were in
the moving business.
Speaker 2 (04:12):
What were you doing?
Speaker 3 (04:13):
Yeah, I was in a moving business with my brother, right,
And when young lady disappeared, we had seen articles in
the newspaper there was missing persons, flies on different store
windows or telephone polls, so people in the community knew
that the young lady who was missing, which town was
this just was in Limbrook, New York, in Nasall County
(04:35):
all around. Yeah, And there was a couple of articles
in the newspaper. So approximately three weeks later, a body
is found and it's identified as being her body. And
now instead of it being a missing person's case, it's
a homicide.
Speaker 1 (04:53):
And this case, it's got so many layers because you
have three guys with makes it really specially tragic because
the other two guys that were convicted of the same
time that you were convicted of were just as innocent
as you were. But one of them confessed, right, and
we know how that goes as well. But every one
of those even inside of that false confession, there's a
(05:14):
lot of nuance to those situations.
Speaker 2 (05:17):
Do you want to talk about that? Because I was
a guy named Kogut, right.
Speaker 3 (05:20):
Well, part of the problem with the interrogation process that
he was put through is that the police lied to him.
And I understand, okay, the police are allowed to lie
to you, but he took a light detechnist and the
police told him he failed the light detecttists and we
had experts that actually viewed the you know, the polycharts,
(05:46):
and our experts said that, you know, he didn't lie, right,
that he was telling the truth, but the detectives used
that as a tool against him. You know, while this
guy is being you know, he's in a small room
with a couple of these let's call them thugs, because
it's that's what they are. Don't get me wrong. I'm
not calling all police thugs. We need the police, and
(06:08):
I'm not saying it. And that's yeah, so I'm not
calling all police bad. But so they held that over
his head, saying that, okay, you lied during the polygraph test,
which was an actual lie. I mean they were lying
to him, right, And their polygraph expert said, well, I
(06:30):
don't really go buy the charts. I go by the
person's demeanor while i'm giving them, well, i'm giving them
the test.
Speaker 4 (06:38):
It's just a tool they're using to interrogate someone. It's
not and polygraphs are not you know, people can debate
whether they have any utility for determining if someone is
or is not telling the truth, but police have used
them for decades as part of what they the experts
now call a guilt presumptive interrogation where they bring somebody
(06:59):
in they've already decided based on these subjective factors, like
I get a feeling he's not telling me the truth,
or they think they have other evidence the person did it,
and once they decide that the person is guilty, the
interrogation is not a search for the truth, it's a
search for a confession.
Speaker 3 (07:15):
In the false confession, right, everything that the police had known, right,
every fact that they knew, right, was incorporated into this confession. Right,
the young lady disappears in early November of nineteen eighty four.
They're interrogating COVID in early March of nineteen eighty five.
(07:40):
And according to the police, in this false confession, this
fact's coming out of color of pokabook, color of sneakies.
I mean things that no normal person could ever remember.
You know, last week? What did you have a breakfast
last Monday? I mean, like every fact was known, even
(08:01):
like the piece of jewelry that they recovered that she
had been wearing. Right, he supposedly remembers the type of jewelry.
And since it was all fictitious to begin with, right,
every fact that they knew was incorporated into the false
confession except one thing. The police didn't know the colored
(08:25):
blouse or shirt that she was wearing on the night
she disappeared. And that's the only thing that wasn't incorporated
into this false confession. So, according to all of the experts,
they considered as a classic false confession because no normal
person would be able to actually remember all of these facts.
There were just too many facts incorporated into this confession
(08:48):
for it to be reliable.
Speaker 1 (08:49):
Okay, now we know that COVID confessed, but how did
that lead to your case being brought to where it
went and ultimately you being con and almost executed.
Speaker 3 (09:01):
The police they incorporate my name and Dennis's name into
the false confession because in a way, the police had
us labeled as suspects. I don't believe that we were
labeled as targets. I personally believed that they were going
to frame us one way to the other. Right, Dennis,
(09:22):
I wouldn't have a clue. I wouldn't have a clue
after COVID confessed falsely confessed. Now my family retained a
private investigator. We're trying to figure out where I was
on the night this younger lady disappeared. We figured out
where I was through receipts because I had just purchased
the house, and that weekend I was standing the floors.
(09:43):
I was an ouse all night. That evening, I was
on the phone with my girlfriend who was pregnant. We
were putting pollutane on the floor, so she was pregnant.
She couldn't be in an house. She was out of mother.
So we had phone right kids, We had receipts, so
we knew exactly where we were. Where I was right
and Dennis was with his kids another town, and Kovid
was at a birthday party in another town. We didn't
(10:04):
even lay eyes on each other that whole weekend. And
beyond that, the three of us were never together in
that van as a threesome ever, and we all had
independent alibis, And by the time we got the trial,
they took my independent alibi witness because the guy who
was helping me, he was a friend at the time.
(10:24):
He was helping me stand the floors, right, he was
at the house all night. The cops picked him up
up the street. They bring him in for ten or
twelve hours and they tell him that, well, if you
don't tell us what we want to hear right, you're
gonna end up in jail with them. So they've actually
flipped my independent alibi witness from my witness to their witness.
(10:48):
And he actually gave damage and testimony against me a trial,
and at the civil trial during his testimony, the judge
actually stopped the proceedings, had the jury removed and told
him that you're on the borderline of being charged with
perjury here because he had changed his testimony so many times, right,
(11:12):
and when he testified at the criminal trial, he lied, right,
but they wouldn't give us his original grand jury testimony.
So it was always my opinion that his testimony was
different from what he testified at the grand jury to
what he testified two years later at the criminal trial,
because during that time span, the cops put so much
(11:33):
pressure on his dude and flipped them.
Speaker 1 (11:35):
Yeah, I mean, he was in an impossible situation. It
doesn't excuse what he did.
Speaker 3 (11:39):
No, you're right. In a way, I felt bad for
him because he was stuck in the middle of this, right,
and he's under this tremendous amount of pressure by the police,
and he's being told, well, if you don't tell us
what we want to hear you're gonna end up in
jail with him, and he sees innocent people in jail, right,
and he sees how easy it was for the police
(12:00):
to do that.
Speaker 2 (12:01):
Exactly.
Speaker 1 (12:02):
He knows what they're capable of because he already knows
you're innocent, and he knows what they're doing, So there's
no reason to not believe that they would do the.
Speaker 3 (12:07):
Same thing, right. And then we had the other problem
with the police planting evidence in the van and the judge.
That was a bench trial, so the judge concluded that
the heads that they intimated that were found in my
van were never in the band, right.
Speaker 1 (12:25):
And you know, let's talk about that because that is
even by the standards of some of the crazy shit
that we see in this line of work. That's going
even beyond some of the misconducts.
Speaker 2 (12:39):
You know, this is so far. They were literally.
Speaker 1 (12:41):
Pulling hairs from the corpse and then taking those hairs
and putting them in the van.
Speaker 2 (12:47):
Like who does a thing like that, Well.
Speaker 4 (12:49):
Who does it or police who are desperate to solve
a crime that has the community absolutely terrified and up
in arms. So what John talked about earlier about the
flyers around town, I mean, this was the mid eighties,
you know, bedroom community, suburban Long Island. The young woman
who was killed in the case that John was falsely convicted,
and her name is Teresa Fusco, was actually one of
(13:11):
three young women that went missing around that time, and
the other two to this day, those crimes have never
been solved, and for all we know, it may have
been the same killer or killers in those cases. But
by the time Teresa disappeared, she was missing for what
was it John three weeks week, about three weeks before
her body was found. So the terror and the paranoia
that they're feeling in this town is only heightening. And
(13:34):
the parents, the elected officials, the teachers are saying, solve
this crime, solve this crime. And after she was found naked,
brutalized in the woods, just a horrible way to go,
you know. The police spent months basically bringing in every
working class guy between the ages of eighteen and twenty
nine in town in and working them over, trying to
see if they could find a weak spot until they
(13:55):
get poor John Kogd who had had a really rough
life grown up in foster care. Nobody to fight for him,
and even he held out for hours and hours until
he finally confessed, you know, and gave a false confession that,
as John said, was a classic false confession and that
it had no information that the police didn't already know,
so he couldn't point them to clothing or jewelry or
(14:16):
fruits of the crime or anything about her that wasn't
part of the police's knowledge. But everything they did know
almost too perfectly. But when it came to the hair.
As part of what was wrong with this case when
they decided they were going to pin it on John
and his two friends, is that they had no physical evidence.
There was no evidence against them, no DNA, no blood typing,
(14:36):
nothing of hers that was ever found with them, no
eyewitnesses as far as anybody knew at the time, who
had seen what vehicles she'd gotten into, and she was
leaving her job at a roller skating rink. And you know,
we don't say lightly that police frame people. I mean
a lot of times police will make bad mistakes, they
will cut corners, they will interview witnesses in a way
that's not ethical or permissible. But in this case, there
(14:59):
is actual scientific evidence that John and his co defendants
got fnamed, namely Detective Vulty, the lead homicide detective, claimed
that he found several hairs when he finally got a
search warrant for John's van when he used for his
moving jobs. He claimed that he found several hairs that
were long hairs, looked just like Teresa's and microscopically appeared
(15:22):
to be the same as Teresa's hairs. We later did
DNA and confirmed that they were in fact her hairs.
Speaker 3 (15:26):
So that would be pretty bad.
Speaker 4 (15:27):
Evidence, and normally you'd think, well, that makes John guilty.
The problem was those hairs would have had to be
deposited in the van during this period when John and
his friends were alleged to have abducted her for just
a few minutes. According to the confession, they had given
her a ride and then raped her, and she was
in the van for not longer, certainly no more than
an hour, and then she was missing for several weeks.
But the hairs came from a corpse. They had this
(15:50):
decomposition at the roots of the hairs, called post mortem
root banding, which basically happens when hairs are attached to
a corpse that's decomposing, and so detective Vult he takes
these hairs and whether he planted them in the van
or just put them in an envelope marked hairs from
van that was back at the lab, we don't know
and doesn't really matter, but he lied under oath and
said that these hairs came from the van, and it's
(16:12):
physically impossible because she had been decomposing for several weeks
when these when these hairs were collected, they were from
her autopsy, not from the van.
Speaker 1 (16:20):
I do believe that most people that are doing those
jobs are doing the best they can, and we need
police to keep us safe. But when you get somebody
like this volpee character who does the type of damage
that he did, they have to be held to account.
Speaker 3 (16:34):
I mean, these detectives actually created a fictitious scenario after
they actually watched what we think was the actual crime scene.
And unbeknownst to us, the night she disappeared, a car
within approximately a mile of where she was last seen
was stolen, and when this car was recovered approximately a
(16:58):
weak later, they found a pair of blue striped jeans
with one of the legs inside out in the back,
but the stuff underneath the see and on a missing
persons report when she was last seen. That's what she
was wearing blue stripe jeans. So the homicide cops grabbed
(17:18):
this car, right, which was already cleaned by the owner,
and the blue stripe jeans were thrown out by the
Limberth Police department. So there was police reports regarding the
stolen car and the blue striped jeans, right. And then
there was a piece of rope missing from the car.
And according to theme, right, there was a piece of
(17:41):
rope similar used as what would you say, the murder weapon, right,
and this was missing from the car. When they brought
the owner back to the area where the car was recovered,
they found the piece of rope. But they took a
picture of the piece of rope. And one would think
that given the significance of that this piece of rope
(18:02):
would be taken into evidence and vouched, and the police
say it never was. So this is information that should
have been turned over to the defense, and it never was.
And we never found out about this information till we
were in the civil litigation.
Speaker 2 (18:18):
Stage twenty something years later.
Speaker 4 (18:21):
Correct, I was John's innocence project lawyer. We didn't know
about this information.
Speaker 1 (18:26):
You know.
Speaker 4 (18:26):
A lot of times, as you know, and a lot
of your guests have talked about there's evidence pointing to
someone's innocence, and you know, certainly in this case, this
is evidence about where the crime occurred and what type
of vehicle was used, which is a huge objective lead.
That's different than the entire case that was against John
and his co defendants, but that is evidence. Often we
(18:49):
learn about that when we're in post conviction, meaning the
person's been convicted and we're litigating their appeals and we're
trying to exonerate them. In John's case, as I'll tell you,
we cleared him with DNA and other evidence that we
gathered as part of the Innocence Project and Centurion Ministry's
investigation of the case. But we didn't even know about
this other evidence the police had of his innocence until
(19:11):
after he was exonerated. It only came out when he
had lawyers representing him in his lawsuit against the police
department in the county that this all came to light.
So it's a really stunning fact that you can have
evidence of innocence that's hidden, possibly even from the DA's
because it was in the police file, and only come
out after someone's exonerated. And so his case is a
DNA exoneration case, but as with so many, there's other
(19:33):
evidence that could have cleared him even before he went
to trial.
Speaker 1 (19:49):
As the son of a police officer, this must have
been totally surreal to you because as much as we
all grew up and when I was a son, I
had the ideas that I would become a policeman, right.
I mean, you know, we all look up to firemen
and cops. I think most boys do, especially growing up
right in the year that we grew up in. But
for you, it was a very personal thing, right. You
(20:09):
must have been very proud to have a dad who
was a cop. I would think, right, right, I mean
I would be. But then at the same time I
would expect that you must have thought that, because of
the fact that your dad was in blue, that this
wouldn't happen to you, right, And was your dad around?
Speaker 2 (20:27):
Was he alive at this time?
Speaker 3 (20:28):
My father passed away in January of eighty four, so
he wasn't around. But my father said something to me
at one time while he was on the job, and
he told me, if you ever have a problem with
a top, call oil. And when the police brought me
in and interrogated me for twenty plus hours. Once I
(20:53):
was released, I immediately called al.
Speaker 2 (20:55):
Why didn't you call oil?
Speaker 3 (20:56):
At first, they wouldn't let me leave, they took my
clock keys, they would let me hold the lawyer. You
know I was there. I mean, they weren't letting me
go anywhere. And finally they let me go, and after
twenty hours, I was so out of it. They wouldn't
even let me drive home. They drove me home and
drove my car.
Speaker 2 (21:14):
There's so many things wrong with this that I'm just like, no.
Speaker 3 (21:17):
This is a complicated case. There's no doubt about it,
and I'm just glad it's over it. But what the
cops did to me, right, it's unfortunate that they can
do to whoever they please. I mean, they could, they
(21:39):
could pick somebody out of a group, right and make
them a target, and then they fabricate a case around them,
and that's exactly what they did to us. But from
day one, I requested DNA testing, and back in the
eighties mid eighties, there was no DNA testing, And back
in ninety three, ninety four, ninety five, we had three
different DNA tis done. One was inclusive to to well,
(22:02):
the ones excluded us, and back in ninety five. I
thought we were going to get cut loose. I thought
that was going to be the end of the gospel.
That wasn't the case. The judge should have been one
of the.
Speaker 4 (22:11):
First DNA gulannomies in the country because he was going
in pro se and he had a lawyer who was
helping him out for some of that time, you know,
early on, and he's incredibly smart, and he was researching
and filing his own emotions. He had a DNA test
from sperm from a sixteen year old girl who was
a virgin that didn't come back to him or Dennis
(22:33):
or John Cogit, and the DAS said, eh, doesn't matter.
Could have been a fourth guy, right, fourth guy. There's
a third guy. There's a second guy.
Speaker 1 (22:42):
There was one guy.
Speaker 4 (22:43):
It was his firm, and it wasn't any of these guys.
And he goes to court and the judges back then
weren't as educated as they are now about DNA and
what it shows, and you know, he had different lawyers
and they said, sorry, I'm giving you a new trial.
And so there he was, you know, in the mid nineties,
starting at square one.
Speaker 2 (23:02):
Again.
Speaker 1 (23:02):
Let's just reflect on that for a second too, So
you proved with DNA that you were innocent, and they're like, yeah,
that's right, doesn't matter. I think probably everyone at home
is experiencing the same or in your car or wherever
you're listening, the same thing that I'm experiencing, which is
that wait a minute, that sounds like a misprint or
a misstatement.
Speaker 2 (23:20):
That can't really be true.
Speaker 3 (23:22):
The prosecutor is actually lying in their papers about the
reliability of the tests. They insinuated that the test results
were not reliable, which is ludicrous because there's two independent
tests done by two independent labs, and they identify the
same exact DNA profile. So if one lab made a mistake,
(23:46):
how could the other lab, independent lab make the same
mistake and identify the exact same DNA profile. So when
they argued in air papers that the tests weren't reliable,
I mean, that was totally ludicrous, and the judge adopted
all it is insanity.
Speaker 4 (24:05):
And then, if I remember correctly, after they realized they
weren't getting anywhere for a while, the judge was getting
skeptical of the reliability argument. Then they said, well, the
only thing that was tested for this last round was
off of a vaginal slide, which is a glass slide
that the medical examiner or autopsy makes from the cotton
swab that was actually had most of the sperm and
(24:26):
the semen on it, and it was just the one
part of the slide. So maybe these three guys who
we convicted, maybe their DNA was on the rest of
the slide or on the swabs, and we just don't
have enough material. So you had to believe two things.
One that the test was missing all of their DNA,
but also that they had some crime partner this mystery.
(24:47):
John Doe, who was the fourth guy whose name didn't
come up in the confession, didn't come up from any
of the informants, didn't come up from any of the witnesses,
you know who. Everybody had been covering up for this
last ten years, which was absurd, but the courts bought it,
and so then they basically gave John a challenge, which
was prove us wrong, prove to us that your DNA
is not really there, And then we.
Speaker 3 (25:09):
Did that right in two thousand and one, there was
a small portion of sample left and they retested it
using new methodology where they would be able to run
that result through the federal and state databases, you know,
through CODIS. Right, and again when they tested that it
(25:31):
comes back matching the same DNA profile that came back
in the nineties.
Speaker 2 (25:36):
Amazing.
Speaker 3 (25:37):
Yeah, And they ran it through CODIS, hoping that they
would get a hit, right, And since they didn't get
a hit, they're still maintaining that it's not reliable. Then
in two thousand and two I met Nina Morrison and
IP took on more involvement in the case, right, and
(25:58):
got us all in de pendant lawyers. Right, they got
lawyers for Dennis, they got lawyers for John And in
early two thousand and three, Nina and a couple of
the lawyers went to inventory evidence that the police had
and lo and behold.
Speaker 4 (26:16):
For photos and maps. We were looking for some old
photos related to another part of our investigation, and they
wouldn't just send us the photos. So we said, fine,
can we come look through the boxes? So we were
out there with an assistant DA who was new to
the office, relatively new, and she said, yeah, let's just
go look through the boxes. Go ahead.
Speaker 3 (26:32):
So Nina and the other lawyers they opened up the
boxes and they're going through the boxes and all behold,
they found a plastic envelope with a glass tube in
it and a swab in it, and it has the
case number and Teresa fuss Goo's name on it and
it's vouched by Volpi. And after they insinuated, all the
mea is that there's no samples left to be tested.
(26:54):
It was right there in the box, you know, in
the DA's officer or in the police head quotas wherever
they were, and Nina scene is and the DA scene is,
and then now they had to collaborate. Okay, now where
are we going to send this to have it tested?
And they sent it out to have it tested. And
this is a sample that was never touched, so it's
in pristine condition and alone.
Speaker 4 (27:17):
If anybody had you know, raped her, that DNA is
going to be on there. So they had said for years,
well the other guys, you know, John and his co defendants,
their DNA was there. We just burned all the samples
so we can't protest it now. And then suddenly we
had this big intact swab that everybody said was gone
for fifteen years that was finally available, and not surprising
(27:38):
to any of us, we tested it and guess what,
it's the same guy whose profile has been coming up
again and again, but this time because it was such
a big sample, the DA's office finally, you know that,
plus a whole lot of other evidence we gathered, we
went out and made a presentation to them, a whole
coalition of people that really did take a village. It
was my very first innocence project case. I was a
(27:59):
young lawyer, very motivated, shall we say, and still am,
but you know, I was very invested in this one,
and a whole bunch of us enturian ministries, the Unison's project,
to Delmarnard, and then my old law school classmate Terry Maroney,
who was a lawyer at a big firm. We all
did this big presentation with Barry Scheck together and got
them to finally agree. They actually caved in and agreed
(28:21):
we didn't have to go to court. They agreed to
throw out their convictions.
Speaker 1 (28:31):
You had a kind of a bright future at the time.
Speaker 2 (28:34):
Right, you had a pregnant girlfriend. Right, you had a
good job.
Speaker 1 (28:38):
Right, you had a career that was growing, and all
of a sudden you're accused and ultimately convicted of the
worst crime that anyone could be convicted of. Right, I think,
which is the rape and murder of an underage person,
child and a teenager or whatever.
Speaker 2 (28:54):
How did you deal with this?
Speaker 1 (28:55):
And then you had to go through this eighteen years
in the maximum security I mean, can you kick us
through that?
Speaker 3 (29:02):
In the beginning, I turned my life upside down and
turned my family's life upside down. But that being said,
my family always supported me. Right, my original trial lawyer
always supported me, and everybody always believed in my innocence.
And I had the one thing going for me that
(29:23):
I knew that not only was I innocent, that I
was framed because I watched the evidence come out during
the course of the trial. Right, so I knew that
I was framed. Now it was up to me to
prove all it is. So I ended up in the penitentiary,
(29:44):
and I started going to the law library, and I
started teaching myself how to use the books. I taught
myself how to become a legal writer. I don't want
to say illegal scholar, but I became a legal writer.
And I I started writing and writing, and I started
writing lettus to all kinds of organizations or individuals seeking help.
(30:08):
And I wrote Century Ministries in nineteen eighty seven and
started corresponding with them, and then I started corresponding with
the Innocence Project, and you know, there was a lot
of setbacks, you know, like because originally, when we extract
the DNA testing, the dis Returnings Office refused to do it.
(30:28):
This is no way we're not going to do that.
And this was in the late eighties because DNA was
first used in a criminal case. I think it was
nineteen eighty eight or nineteen eighty nine, something like that,
and I think it was an Oldding County case. And
so I wrote my lawyer, I mean, if they're going
to use this to convict somebody, why can't we use
(30:49):
this to exonerate us? Right? And I got letters signed
by John by Dennis agreeing to have this DNA test done.
My lawyer correct, right, because I'm not doing this just
for me. I mean, this is a frame job, it's
not like so we all agree, and my lawyer filed
(31:10):
the motion. The judge denied it, and then my lawyer
went on his own writing campaign to the DA and finally,
on the eve of when New York State legislature was
getting ready to sign the post Conviction Statute for forty
to allow DNA testing, the prosecutors or the DA's office
(31:32):
finally agreed to do the DNA testing, and that's why
the DNA testing occurred in ninety three, ninety four U
five or otherwise, if that legislation wasn't going to be
on the books, they would probably continue to refuse it,
even though you know, people at that point were being
exonerated because the results of the DNA tests. These people
fought tooth and nail against this DNA tests, and then
(31:54):
when we finally got the DNA test going, the judge
finds it unreliable, like you mentioned before. But you know,
I always had this hope, right and then you know,
things started falling together with more people get involved, and
the more people that got involved were more confident. I
felt that I was gonna one day be vindicated.
Speaker 1 (32:15):
But let me ask you, I mean, I guess what
I'm trying to figure out is it seems like it
would have been.
Speaker 2 (32:22):
Really easy for you to either give.
Speaker 1 (32:24):
Up or get consumed by anger, because this was not
a situation where it was a mistake. This was a
situation where you were deliberately prosecuted and persecuted by people
who did you incredible harm and also deny justice to
the family who must have been fucking devastated. I mean, like,
(32:45):
as a father, I can't imagine you know what they
went through, and then there's no justice for them either.
Speaker 2 (32:50):
So is there a secret that you could share.
Speaker 1 (32:53):
That allowed you to sort of find this extra gear
and instead of banging your head against the wall or
doing whatever you channel This seems.
Speaker 3 (33:00):
Like this is this is gonna sound strange, but I
still use this line today. It could be worse. Right,
And I was facing a level of adversity that the
average person could never understand. Well, I was inside. I
read a lot, but I didn't read you know, novels.
(33:23):
I read a lot of nonfiction. I read a lot
about World War Two. I read a lot about POW's.
So I'm putting in my brain like, okay, me doing
his life sentence for somebody I didn't do. How does
that compare to an eighteen year old kid that is
pushed onto the beach in Normandy and you know, lives
(33:43):
for five minutes and he's gone, right, or a Pow
in the Philippines that is being tortured every day. So
I'm putting my adversity in and kind of perspective of
you know adversity that other people in worse situations that
I was in. Right, at least I was getting three
(34:04):
meals a day. I wasn't being physically taught you, nobody
was pulling my fingernails out. I put it all in
a perspective of you know, a peow in the Philippines
or a pow in Vietnam, and I got it in
my brain. Well, at the end of the day, I
don't belong here, but it could be worse.
Speaker 4 (34:21):
John's too modest to talk about this, but I'm going
to say he also spent a lot of time when
he was in prison trying to make it a less
horrible place for other people, and also helping people on
the outside. So among the many things he did, like
when I first talked to his prison counselor, she just
blew up my phone with oh my god, John, He's
just incredible. I want him to go home, but what
(34:42):
are we going to do without him? He was an
HIV AIDS counselor for other inmates, either on how to
avoid contracting the disease or helping him deal with their diagnoses,
even though he was a straight man who was HIV
negative at a time in the eighties and nineties when
people were scared to talk about AIDS, much less work
directly with people who were affected. He'd worked with mentally
ill and mad, to the guys that everybody thought was
(35:02):
crazy and were prized at the prison, and he was
just trying to help them get the medication they needed
and the support they needed. And then people on the outside,
I know people who John was like their phone buddy,
you know, family friends and young nieces and nephews who
he would just call once a week and like talk
them through their problems in school, their issues with their families.
You know, all the while he's facing the most unimaginable
(35:23):
thing any of us think we could go through, and
that's just a testament to who he is and how.
Speaker 3 (35:28):
Strong he is.
Speaker 1 (35:29):
I'm glad you said that, because that is an awesome
thing to hear from me. I'm sure many other people
who are going through whatever they're going through to hear
your perspective on that. And here then, Nina, you know,
adding in what you were too modest or humble to
talk about, it's incredible. And I got to tell you, John,
and you know it's true too, that I think I
can speak for Nina and almost any of the other
(35:52):
six hundred of us who are here at the Innocence
Network conference who are part of the network, right the
activist lawyers, the social workers, the people who are just
obsessed with this stuff, like me. And the simple reason
why is because of people like you. When someone's made
aware of the quality of person that you are, and
that I would say the overwhelming majority of the people,
(36:13):
the men and women who've been exonerated, what they're made
out of, it's like it only inspires us to want
to do more. And that's why for anyone who's ever
asked me, you know why you keep doing this, it's
because of people like you.
Speaker 2 (36:28):
So you know, what can I say? You have all
my respect?
Speaker 3 (36:32):
Well, I look at it from the other perspective because
and I appreciate where you're coming from. But to me,
people in en isshoes, they're my hero. People in your shoes,
what you do for the movement, you're my hero. And
everybody who supports this movement, they're my hero. Right Because
(36:55):
if it wasn't for people like Nina and people like you, right,
I probably still being at sixty eight.
Speaker 2 (37:02):
John.
Speaker 1 (37:02):
I just want to ask you one more question, though,
and then I am going to get to the closing.
So I interviewed Gloria Kelly on on the podcast and
she said she's an amazing, amazing woman, very powerful presence,
and wrongfully convicted started seventeen and a half years. I
encourage people to listen to her episode of the podcast.
(37:24):
But she said something that I think is important to hear,
and I want to get your perspective on that. She
said to anyone listening, if you don't think this can
happen to you, it can happen to you.
Speaker 2 (37:35):
Would you agree with that most definitely?
Speaker 3 (37:38):
And you could be walking down the street one day,
just mining your business and get surrounded by cops and
before you know it, you're thrown into the system and
you don't have a clue to what's going on until
all of a sudden you're brought in front of a
judge and you're being charged with whatever, and you're totally
(37:59):
clueless as to what happened. And a lot of these
wrongful conviction cases, that's exactly what occurred. I mean, because
if so many things that this can't happen to them,
that's totally wrong, because being wilfully convicted can happen to anybody, anybody,
and it doesn't have anything to do with race, gender, anything.
(38:21):
And I wouldn't wish this on my worst enemy to
have to go through something like this, because no matter
what you do, after you're exonerated, you carry it for
the rest of your life. I mean, it doesn't go away.
Speaker 1 (38:34):
Well, yeah, you can't get back those years and all
the things that you missed, the birthdays, the family stuff,
just everything.
Speaker 2 (38:41):
I mean, nobody can give you those back. If we could,
we would.
Speaker 1 (38:44):
But that being said, it's amazing to see you making
the most out of it. And you're in Florida. You're
enjoying some sun and some palm trees or whatever it
is down there, and I'm really glad that things are
going your way. And now comes my favorite part of
the show, which is the part of the show where
(39:06):
I first of all, thank both of you, Nina Morrison
and John Restivo for joining me sharing your thoughts on
Wontful Conviction.
Speaker 2 (39:16):
So thank you both for being here.
Speaker 1 (39:18):
And now I get to sit back and listen and
just leave the microphones on for final thoughts. And I'm
going to let Nina go first because it would be
appropriate for you to close the show so you're batting
clean up, so to speak.
Speaker 2 (39:35):
So anyway, So, Nina, well, all I.
Speaker 4 (39:38):
Want to say is, you know, your listeners have gotten
a favor for who John is and what he's gone through.
But one of the things that's really special about John
is what he's done after he's been out and how
much he's done. He's done a lot to help get
people registered to vote in Florida, to feed the homeless,
to make his community better. And his personal journey is
(39:59):
told in this beautiful, Beautiful future story in the New
Yorker magazine by a writer named Ariel Levy, And if
people google John's name and the title, I think is
the Price of a life, And it's all about the
deep pain and suffering that he went through. If your
listeners are interested in the human toll that wrongful convictions take.
Ariel told his story in a very revealing and intimate way,
(40:22):
and I hope folks will check it out.
Speaker 2 (40:24):
Joh It.
Speaker 3 (40:25):
I just take it one day at a time. I
wake up in the morning and I just say to myself,
no day in paradise. I'm just glad to be free.
And if I can do something to help my community,
or if I feel or if I see something that
needs to be done, I try to help. And I
(40:46):
was involved in two thousand and eight in this huge
voter registration thing that we had going in Florida, and
we just got passed. We got an amendment past where
felons are going to be allowed to vote. So now
we're going to have to start getting felons registered to
(41:09):
vote for our upcoming election. And when I'm asked, I
have a group of friends, and when I'm asked to help,
I'm more than happy to help. And I want to
thank you for having us here.
Speaker 1 (41:24):
All I can say is thank you both again, and
thank you all for listening. And I'll see you next
week on Wraeful Conviction. Don't forget to give us a
fantastic review wherever you get your podcasts.
Speaker 2 (41:42):
It really helps.
Speaker 1 (41:43):
And I'm a proud donor to the Innocence Project and
I really hope you'll join me in supporting this very
important cause and helping to prevent future wrongful convictions. Go
to Innocence Project dot or org to learn how to
donate and get involved. I'd like to thank our production team,
Connor Hall and Kevin Wartis. The music in the show
is by three Time Oscar nominated composer Jay Ralph.
Speaker 2 (42:05):
Be sure to.
Speaker 1 (42:06):
Follow us on Instagram at Wrongful Conviction and on Facebook
at Wrongful Conviction podcast. Wrongful Conviction with Jason Flahm is
a production of Lava for Good Podcasts and association with
Signal Company Number one
On December fifth, nineteen eighty four, the naked body of
a sixteen year old girl was found in a wooded
area of Lynbrook, Long Island. The victim had been last
seen leaving her job at a local roller rink about
a month earlier. The medical examiner determined that the cause
of death was ligature strangulation and seamen found on her
Baginal swabs suggested that she had been raped. By March
(00:23):
nineteen eighty five, authorities believed that this rape and murder
were connected to similar disappearance as an investigator started focusing
on Dennis Halstead, who was believed to have been associated
with another young woman who had disappeared. John Restivo had
been interviewed as part of this investigation and mentioned that
he was acquainted with John Cogut, an occasional employee of
his and his brother's moving business. After cogd was given
(00:46):
three polygraphs, police asserted that he lied when denying involvement
with the disappearance of the sixteen year old victim. He
endured twelve hours of aggressive interrogation and eventually he cracked
and signed a confession that was handwritten by one of
the detectives. The sixth version of events given by Cogd,
containing information all of which was previously known to investigators.
Speaker 2 (01:07):
According to Kogo's false.
Speaker 1 (01:09):
Confession, the victim voluntarily got into Restivo's van, where Cogd
and Halsted stripped her and Halsted raped her. Further into
this coerce statement, he said that when they arrived at
a cemetery, Restivo also raped her and Cogit strangled her.
Speaker 2 (01:23):
When she regained.
Speaker 1 (01:24):
Consciousness and became frantic. With the false confession at a
number of hairs found in Restivo's band said to have
matched the victims. The three men were tried over the
course of nineteen eighty six. John Cogo was tried separately
and convicted of rape and murder in March, then Is
Halsted and John Restivo in November. Through the concerted efforts
(01:44):
of Centurion Ministries, Paced Law School's Post Conviction Clinic, Private Council,
and the Innocence Project, the defense used police department property
records to finally locate and test intact baginal swabs for
DNA in two thousand and three, ultimately excluding the three
men as the perpetrators. John Restivo spoke with US at
the Atlanta Innocis Network conference. To tell their horrifying story. Together,
(02:09):
they spent over half a century in prison for a
crime they did not commit. This is wrongful Conviction with
Jason plom Welcome back to Wrongful Conviction. I'm especially excited
(02:29):
today because I've got a guest who I've wanted to
have on my podcast from long before I even had
a podcast. So ever since I read your story in
The New Yorker, John Restivo, I've been sort of in
awe of your story, your your case, your everything. So
I'm really I'm really happy you're here.
Speaker 3 (02:49):
Yeah, what a long, strange trip it's been.
Speaker 2 (02:51):
Yeah, how about it?
Speaker 1 (02:52):
And like I always say, I'm sorry you're here, but
I'm happy you're here.
Speaker 2 (02:55):
So and with you.
Speaker 1 (02:57):
Nina Morrison is a return guest on this year today.
Nina is the senior staff attorney at the Innocence Project
in New York.
Speaker 2 (03:04):
Welcome back, Thank.
Speaker 3 (03:06):
You, Jason.
Speaker 4 (03:06):
It's always so nice to be.
Speaker 1 (03:08):
Here, and this is going to be an amazing experience
for me, I think for everyone who's listening as well,
mainly because of you, John. So let's get right into it.
So and Yours is a New York case, right, which
makes it personal to me as a New Yorker, a
lifelong New Yorker and just by way of background, John
was convicted of a rape murder along with two other
(03:30):
innocent men and sentenced to thirty three and a half
years of life. Could well have been executed if not
for Governor Mario Cuomo blocking repeatedly the death penalty in
New York State. I think that's an important thing to
touch on. But let's go back to it. All these
crimes we talk about are horrible. This one is particularly terrible, right.
This is the rape and murder of a young girl,
(03:51):
sixteen year old girl. And obviously everybody wants to see
those crimes solved, but they don't want to see it
solved this way.
Speaker 2 (03:59):
I mean, when we get the wrong people.
Speaker 1 (04:01):
Locked up, whoever it is that did this was free
to commit other heinous crimes. But take us back to
the crime itself. And how did you first hear about it?
I mean you were at the time, you were in
the moving business.
Speaker 2 (04:12):
What were you doing?
Speaker 3 (04:13):
Yeah, I was in a moving business with my brother, right,
And when young lady disappeared, we had seen articles in
the newspaper there was missing persons, flies on different store
windows or telephone polls, so people in the community knew
that the young lady who was missing, which town was
this just was in Limbrook, New York, in Nasall County
(04:35):
all around. Yeah, And there was a couple of articles
in the newspaper. So approximately three weeks later, a body
is found and it's identified as being her body. And
now instead of it being a missing person's case, it's
a homicide.
Speaker 1 (04:53):
And this case, it's got so many layers because you
have three guys with makes it really specially tragic because
the other two guys that were convicted of the same
time that you were convicted of were just as innocent
as you were. But one of them confessed, right, and
we know how that goes as well. But every one
of those even inside of that false confession, there's a
(05:14):
lot of nuance to those situations.
Speaker 2 (05:17):
Do you want to talk about that? Because I was
a guy named Kogut, right.
Speaker 3 (05:20):
Well, part of the problem with the interrogation process that
he was put through is that the police lied to him.
And I understand, okay, the police are allowed to lie
to you, but he took a light detechnist and the
police told him he failed the light detecttists and we
had experts that actually viewed the you know, the polycharts,
(05:46):
and our experts said that, you know, he didn't lie, right,
that he was telling the truth, but the detectives used
that as a tool against him. You know, while this
guy is being you know, he's in a small room
with a couple of these let's call them thugs, because
it's that's what they are. Don't get me wrong. I'm
not calling all police thugs. We need the police, and
(06:08):
I'm not saying it. And that's yeah, so I'm not
calling all police bad. But so they held that over
his head, saying that, okay, you lied during the polygraph test,
which was an actual lie. I mean they were lying
to him, right, And their polygraph expert said, well, I
(06:30):
don't really go buy the charts. I go by the
person's demeanor while i'm giving them, well, i'm giving them
the test.
Speaker 4 (06:38):
It's just a tool they're using to interrogate someone. It's
not and polygraphs are not you know, people can debate
whether they have any utility for determining if someone is
or is not telling the truth, but police have used
them for decades as part of what they the experts
now call a guilt presumptive interrogation where they bring somebody
(06:59):
in they've already decided based on these subjective factors, like
I get a feeling he's not telling me the truth,
or they think they have other evidence the person did it,
and once they decide that the person is guilty, the
interrogation is not a search for the truth, it's a
search for a confession.
Speaker 3 (07:15):
In the false confession, right, everything that the police had known, right,
every fact that they knew, right, was incorporated into this confession. Right,
the young lady disappears in early November of nineteen eighty four.
They're interrogating COVID in early March of nineteen eighty five.
(07:40):
And according to the police, in this false confession, this
fact's coming out of color of pokabook, color of sneakies.
I mean things that no normal person could ever remember.
You know, last week? What did you have a breakfast
last Monday? I mean, like every fact was known, even
(08:01):
like the piece of jewelry that they recovered that she
had been wearing. Right, he supposedly remembers the type of jewelry.
And since it was all fictitious to begin with, right,
every fact that they knew was incorporated into the false
confession except one thing. The police didn't know the colored
(08:25):
blouse or shirt that she was wearing on the night
she disappeared. And that's the only thing that wasn't incorporated
into this false confession. So, according to all of the experts,
they considered as a classic false confession because no normal
person would be able to actually remember all of these facts.
There were just too many facts incorporated into this confession
(08:48):
for it to be reliable.
Speaker 1 (08:49):
Okay, now we know that COVID confessed, but how did
that lead to your case being brought to where it
went and ultimately you being con and almost executed.
Speaker 3 (09:01):
The police they incorporate my name and Dennis's name into
the false confession because in a way, the police had
us labeled as suspects. I don't believe that we were
labeled as targets. I personally believed that they were going
to frame us one way to the other. Right, Dennis,
(09:22):
I wouldn't have a clue. I wouldn't have a clue
after COVID confessed falsely confessed. Now my family retained a
private investigator. We're trying to figure out where I was
on the night this younger lady disappeared. We figured out
where I was through receipts because I had just purchased
the house, and that weekend I was standing the floors.
(09:43):
I was an ouse all night. That evening, I was
on the phone with my girlfriend who was pregnant. We
were putting pollutane on the floor, so she was pregnant.
She couldn't be in an house. She was out of mother.
So we had phone right kids, We had receipts, so
we knew exactly where we were. Where I was right
and Dennis was with his kids another town, and Kovid
was at a birthday party in another town. We didn't
(10:04):
even lay eyes on each other that whole weekend. And
beyond that, the three of us were never together in
that van as a threesome ever, and we all had
independent alibis, And by the time we got the trial,
they took my independent alibi witness because the guy who
was helping me, he was a friend at the time.
(10:24):
He was helping me stand the floors, right, he was
at the house all night. The cops picked him up
up the street. They bring him in for ten or
twelve hours and they tell him that, well, if you
don't tell us what we want to hear right, you're
gonna end up in jail with them. So they've actually
flipped my independent alibi witness from my witness to their witness.
(10:48):
And he actually gave damage and testimony against me a trial,
and at the civil trial during his testimony, the judge
actually stopped the proceedings, had the jury removed and told
him that you're on the borderline of being charged with
perjury here because he had changed his testimony so many times, right,
(11:12):
and when he testified at the criminal trial, he lied, right,
but they wouldn't give us his original grand jury testimony.
So it was always my opinion that his testimony was
different from what he testified at the grand jury to
what he testified two years later at the criminal trial,
because during that time span, the cops put so much
(11:33):
pressure on his dude and flipped them.
Speaker 1 (11:35):
Yeah, I mean, he was in an impossible situation. It
doesn't excuse what he did.
Speaker 3 (11:39):
No, you're right. In a way, I felt bad for
him because he was stuck in the middle of this, right,
and he's under this tremendous amount of pressure by the police,
and he's being told, well, if you don't tell us
what we want to hear you're gonna end up in
jail with him, and he sees innocent people in jail, right,
and he sees how easy it was for the police
(12:00):
to do that.
Speaker 2 (12:01):
Exactly.
Speaker 1 (12:02):
He knows what they're capable of because he already knows
you're innocent, and he knows what they're doing, So there's
no reason to not believe that they would do the.
Speaker 3 (12:07):
Same thing, right. And then we had the other problem
with the police planting evidence in the van and the judge.
That was a bench trial, so the judge concluded that
the heads that they intimated that were found in my
van were never in the band, right.
Speaker 1 (12:25):
And you know, let's talk about that because that is
even by the standards of some of the crazy shit
that we see in this line of work. That's going
even beyond some of the misconducts.
Speaker 2 (12:39):
You know, this is so far. They were literally.
Speaker 1 (12:41):
Pulling hairs from the corpse and then taking those hairs
and putting them in the van.
Speaker 2 (12:47):
Like who does a thing like that, Well.
Speaker 4 (12:49):
Who does it or police who are desperate to solve
a crime that has the community absolutely terrified and up
in arms. So what John talked about earlier about the
flyers around town, I mean, this was the mid eighties,
you know, bedroom community, suburban Long Island. The young woman
who was killed in the case that John was falsely convicted,
and her name is Teresa Fusco, was actually one of
(13:11):
three young women that went missing around that time, and
the other two to this day, those crimes have never
been solved, and for all we know, it may have
been the same killer or killers in those cases. But
by the time Teresa disappeared, she was missing for what
was it John three weeks week, about three weeks before
her body was found. So the terror and the paranoia
that they're feeling in this town is only heightening. And
(13:34):
the parents, the elected officials, the teachers are saying, solve
this crime, solve this crime. And after she was found naked,
brutalized in the woods, just a horrible way to go,
you know. The police spent months basically bringing in every
working class guy between the ages of eighteen and twenty
nine in town in and working them over, trying to
see if they could find a weak spot until they
(13:55):
get poor John Kogd who had had a really rough
life grown up in foster care. Nobody to fight for him,
and even he held out for hours and hours until
he finally confessed, you know, and gave a false confession that,
as John said, was a classic false confession and that
it had no information that the police didn't already know,
so he couldn't point them to clothing or jewelry or
(14:16):
fruits of the crime or anything about her that wasn't
part of the police's knowledge. But everything they did know
almost too perfectly. But when it came to the hair.
As part of what was wrong with this case when
they decided they were going to pin it on John
and his two friends, is that they had no physical evidence.
There was no evidence against them, no DNA, no blood typing,
(14:36):
nothing of hers that was ever found with them, no
eyewitnesses as far as anybody knew at the time, who
had seen what vehicles she'd gotten into, and she was
leaving her job at a roller skating rink. And you know,
we don't say lightly that police frame people. I mean
a lot of times police will make bad mistakes, they
will cut corners, they will interview witnesses in a way
that's not ethical or permissible. But in this case, there
(14:59):
is actual scientific evidence that John and his co defendants
got fnamed, namely Detective Vulty, the lead homicide detective, claimed
that he found several hairs when he finally got a
search warrant for John's van when he used for his
moving jobs. He claimed that he found several hairs that
were long hairs, looked just like Teresa's and microscopically appeared
(15:22):
to be the same as Teresa's hairs. We later did
DNA and confirmed that they were in fact her hairs.
Speaker 3 (15:26):
So that would be pretty bad.
Speaker 4 (15:27):
Evidence, and normally you'd think, well, that makes John guilty.
The problem was those hairs would have had to be
deposited in the van during this period when John and
his friends were alleged to have abducted her for just
a few minutes. According to the confession, they had given
her a ride and then raped her, and she was
in the van for not longer, certainly no more than
an hour, and then she was missing for several weeks.
But the hairs came from a corpse. They had this
(15:50):
decomposition at the roots of the hairs, called post mortem
root banding, which basically happens when hairs are attached to
a corpse that's decomposing, and so detective Vult he takes
these hairs and whether he planted them in the van
or just put them in an envelope marked hairs from
van that was back at the lab, we don't know
and doesn't really matter, but he lied under oath and
said that these hairs came from the van, and it's
(16:12):
physically impossible because she had been decomposing for several weeks
when these when these hairs were collected, they were from
her autopsy, not from the van.
Speaker 1 (16:20):
I do believe that most people that are doing those
jobs are doing the best they can, and we need
police to keep us safe. But when you get somebody
like this volpee character who does the type of damage
that he did, they have to be held to account.
Speaker 3 (16:34):
I mean, these detectives actually created a fictitious scenario after
they actually watched what we think was the actual crime scene.
And unbeknownst to us, the night she disappeared, a car
within approximately a mile of where she was last seen
was stolen, and when this car was recovered approximately a
(16:58):
weak later, they found a pair of blue striped jeans
with one of the legs inside out in the back,
but the stuff underneath the see and on a missing
persons report when she was last seen. That's what she
was wearing blue stripe jeans. So the homicide cops grabbed
(17:18):
this car, right, which was already cleaned by the owner,
and the blue stripe jeans were thrown out by the
Limberth Police department. So there was police reports regarding the
stolen car and the blue striped jeans, right. And then
there was a piece of rope missing from the car.
And according to theme, right, there was a piece of
(17:41):
rope similar used as what would you say, the murder weapon, right,
and this was missing from the car. When they brought
the owner back to the area where the car was recovered,
they found the piece of rope. But they took a
picture of the piece of rope. And one would think
that given the significance of that this piece of rope
(18:02):
would be taken into evidence and vouched, and the police
say it never was. So this is information that should
have been turned over to the defense, and it never was.
And we never found out about this information till we
were in the civil litigation.
Speaker 2 (18:18):
Stage twenty something years later.
Speaker 4 (18:21):
Correct, I was John's innocence project lawyer. We didn't know
about this information.
Speaker 1 (18:26):
You know.
Speaker 4 (18:26):
A lot of times, as you know, and a lot
of your guests have talked about there's evidence pointing to
someone's innocence, and you know, certainly in this case, this
is evidence about where the crime occurred and what type
of vehicle was used, which is a huge objective lead.
That's different than the entire case that was against John
and his co defendants, but that is evidence. Often we
(18:49):
learn about that when we're in post conviction, meaning the
person's been convicted and we're litigating their appeals and we're
trying to exonerate them. In John's case, as I'll tell you,
we cleared him with DNA and other evidence that we
gathered as part of the Innocence Project and Centurion Ministry's
investigation of the case. But we didn't even know about
this other evidence the police had of his innocence until
(19:11):
after he was exonerated. It only came out when he
had lawyers representing him in his lawsuit against the police
department in the county that this all came to light.
So it's a really stunning fact that you can have
evidence of innocence that's hidden, possibly even from the DA's
because it was in the police file, and only come
out after someone's exonerated. And so his case is a
DNA exoneration case, but as with so many, there's other
(19:33):
evidence that could have cleared him even before he went
to trial.
Speaker 1 (19:49):
As the son of a police officer, this must have
been totally surreal to you because as much as we
all grew up and when I was a son, I
had the ideas that I would become a policeman, right.
I mean, you know, we all look up to firemen
and cops. I think most boys do, especially growing up
right in the year that we grew up in. But
for you, it was a very personal thing, right. You
(20:09):
must have been very proud to have a dad who
was a cop. I would think, right, right, I mean
I would be. But then at the same time I
would expect that you must have thought that, because of
the fact that your dad was in blue, that this
wouldn't happen to you, right, And was your dad around?
Speaker 2 (20:27):
Was he alive at this time?
Speaker 3 (20:28):
My father passed away in January of eighty four, so
he wasn't around. But my father said something to me
at one time while he was on the job, and
he told me, if you ever have a problem with
a top, call oil. And when the police brought me
in and interrogated me for twenty plus hours. Once I
(20:53):
was released, I immediately called al.
Speaker 2 (20:55):
Why didn't you call oil?
Speaker 3 (20:56):
At first, they wouldn't let me leave, they took my
clock keys, they would let me hold the lawyer. You
know I was there. I mean, they weren't letting me
go anywhere. And finally they let me go, and after
twenty hours, I was so out of it. They wouldn't
even let me drive home. They drove me home and
drove my car.
Speaker 2 (21:14):
There's so many things wrong with this that I'm just like, no.
Speaker 3 (21:17):
This is a complicated case. There's no doubt about it,
and I'm just glad it's over it. But what the
cops did to me, right, it's unfortunate that they can
do to whoever they please. I mean, they could, they
(21:39):
could pick somebody out of a group, right and make
them a target, and then they fabricate a case around them,
and that's exactly what they did to us. But from
day one, I requested DNA testing, and back in the
eighties mid eighties, there was no DNA testing, And back
in ninety three, ninety four, ninety five, we had three
different DNA tis done. One was inclusive to to well,
(22:02):
the ones excluded us, and back in ninety five. I
thought we were going to get cut loose. I thought
that was going to be the end of the gospel.
That wasn't the case. The judge should have been one
of the.
Speaker 4 (22:11):
First DNA gulannomies in the country because he was going
in pro se and he had a lawyer who was
helping him out for some of that time, you know,
early on, and he's incredibly smart, and he was researching
and filing his own emotions. He had a DNA test
from sperm from a sixteen year old girl who was
a virgin that didn't come back to him or Dennis
(22:33):
or John Cogit, and the DAS said, eh, doesn't matter.
Could have been a fourth guy, right, fourth guy. There's
a third guy. There's a second guy.
Speaker 1 (22:42):
There was one guy.
Speaker 4 (22:43):
It was his firm, and it wasn't any of these guys.
And he goes to court and the judges back then
weren't as educated as they are now about DNA and
what it shows, and you know, he had different lawyers
and they said, sorry, I'm giving you a new trial.
And so there he was, you know, in the mid nineties,
starting at square one.
Speaker 2 (23:02):
Again.
Speaker 1 (23:02):
Let's just reflect on that for a second too, So
you proved with DNA that you were innocent, and they're like, yeah,
that's right, doesn't matter. I think probably everyone at home
is experiencing the same or in your car or wherever
you're listening, the same thing that I'm experiencing, which is
that wait a minute, that sounds like a misprint or
a misstatement.
Speaker 2 (23:20):
That can't really be true.
Speaker 3 (23:22):
The prosecutor is actually lying in their papers about the
reliability of the tests. They insinuated that the test results
were not reliable, which is ludicrous because there's two independent
tests done by two independent labs, and they identify the
same exact DNA profile. So if one lab made a mistake,
(23:46):
how could the other lab, independent lab make the same
mistake and identify the exact same DNA profile. So when
they argued in air papers that the tests weren't reliable,
I mean, that was totally ludicrous, and the judge adopted
all it is insanity.
Speaker 4 (24:05):
And then, if I remember correctly, after they realized they
weren't getting anywhere for a while, the judge was getting
skeptical of the reliability argument. Then they said, well, the
only thing that was tested for this last round was
off of a vaginal slide, which is a glass slide
that the medical examiner or autopsy makes from the cotton
swab that was actually had most of the sperm and
(24:26):
the semen on it, and it was just the one
part of the slide. So maybe these three guys who
we convicted, maybe their DNA was on the rest of
the slide or on the swabs, and we just don't
have enough material. So you had to believe two things.
One that the test was missing all of their DNA,
but also that they had some crime partner this mystery.
(24:47):
John Doe, who was the fourth guy whose name didn't
come up in the confession, didn't come up from any
of the informants, didn't come up from any of the witnesses,
you know who. Everybody had been covering up for this
last ten years, which was absurd, but the courts bought it,
and so then they basically gave John a challenge, which
was prove us wrong, prove to us that your DNA
is not really there, And then we.
Speaker 3 (25:09):
Did that right in two thousand and one, there was
a small portion of sample left and they retested it
using new methodology where they would be able to run
that result through the federal and state databases, you know,
through CODIS. Right, and again when they tested that it
(25:31):
comes back matching the same DNA profile that came back
in the nineties.
Speaker 2 (25:36):
Amazing.
Speaker 3 (25:37):
Yeah, And they ran it through CODIS, hoping that they
would get a hit, right, And since they didn't get
a hit, they're still maintaining that it's not reliable. Then
in two thousand and two I met Nina Morrison and
IP took on more involvement in the case, right, and
(25:58):
got us all in de pendant lawyers. Right, they got
lawyers for Dennis, they got lawyers for John And in
early two thousand and three, Nina and a couple of
the lawyers went to inventory evidence that the police had
and lo and behold.
Speaker 4 (26:16):
For photos and maps. We were looking for some old
photos related to another part of our investigation, and they
wouldn't just send us the photos. So we said, fine,
can we come look through the boxes? So we were
out there with an assistant DA who was new to
the office, relatively new, and she said, yeah, let's just
go look through the boxes. Go ahead.
Speaker 3 (26:32):
So Nina and the other lawyers they opened up the
boxes and they're going through the boxes and all behold,
they found a plastic envelope with a glass tube in
it and a swab in it, and it has the
case number and Teresa fuss Goo's name on it and
it's vouched by Volpi. And after they insinuated, all the
mea is that there's no samples left to be tested.
(26:54):
It was right there in the box, you know, in
the DA's officer or in the police head quotas wherever
they were, and Nina scene is and the DA scene is,
and then now they had to collaborate. Okay, now where
are we going to send this to have it tested?
And they sent it out to have it tested. And
this is a sample that was never touched, so it's
in pristine condition and alone.
Speaker 4 (27:17):
If anybody had you know, raped her, that DNA is
going to be on there. So they had said for years,
well the other guys, you know, John and his co defendants,
their DNA was there. We just burned all the samples
so we can't protest it now. And then suddenly we
had this big intact swab that everybody said was gone
for fifteen years that was finally available, and not surprising
(27:38):
to any of us, we tested it and guess what,
it's the same guy whose profile has been coming up
again and again, but this time because it was such
a big sample, the DA's office finally, you know that,
plus a whole lot of other evidence we gathered, we
went out and made a presentation to them, a whole
coalition of people that really did take a village. It
was my very first innocence project case. I was a
(27:59):
young lawyer, very motivated, shall we say, and still am,
but you know, I was very invested in this one,
and a whole bunch of us enturian ministries, the Unison's project,
to Delmarnard, and then my old law school classmate Terry Maroney,
who was a lawyer at a big firm. We all
did this big presentation with Barry Scheck together and got
them to finally agree. They actually caved in and agreed
(28:21):
we didn't have to go to court. They agreed to
throw out their convictions.
Speaker 1 (28:31):
You had a kind of a bright future at the time.
Speaker 2 (28:34):
Right, you had a pregnant girlfriend. Right, you had a
good job.
Speaker 1 (28:38):
Right, you had a career that was growing, and all
of a sudden you're accused and ultimately convicted of the
worst crime that anyone could be convicted of. Right, I think,
which is the rape and murder of an underage person,
child and a teenager or whatever.
Speaker 2 (28:54):
How did you deal with this?
Speaker 1 (28:55):
And then you had to go through this eighteen years
in the maximum security I mean, can you kick us
through that?
Speaker 3 (29:02):
In the beginning, I turned my life upside down and
turned my family's life upside down. But that being said,
my family always supported me. Right, my original trial lawyer
always supported me, and everybody always believed in my innocence.
And I had the one thing going for me that
(29:23):
I knew that not only was I innocent, that I
was framed because I watched the evidence come out during
the course of the trial. Right, so I knew that
I was framed. Now it was up to me to
prove all it is. So I ended up in the penitentiary,
(29:44):
and I started going to the law library, and I
started teaching myself how to use the books. I taught
myself how to become a legal writer. I don't want
to say illegal scholar, but I became a legal writer.
And I I started writing and writing, and I started
writing lettus to all kinds of organizations or individuals seeking help.
(30:08):
And I wrote Century Ministries in nineteen eighty seven and
started corresponding with them, and then I started corresponding with
the Innocence Project, and you know, there was a lot
of setbacks, you know, like because originally, when we extract
the DNA testing, the dis Returnings Office refused to do it.
(30:28):
This is no way we're not going to do that.
And this was in the late eighties because DNA was
first used in a criminal case. I think it was
nineteen eighty eight or nineteen eighty nine, something like that,
and I think it was an Oldding County case. And
so I wrote my lawyer, I mean, if they're going
to use this to convict somebody, why can't we use
(30:49):
this to exonerate us? Right? And I got letters signed
by John by Dennis agreeing to have this DNA test done.
My lawyer correct, right, because I'm not doing this just
for me. I mean, this is a frame job, it's
not like so we all agree, and my lawyer filed
(31:10):
the motion. The judge denied it, and then my lawyer
went on his own writing campaign to the DA and finally,
on the eve of when New York State legislature was
getting ready to sign the post Conviction Statute for forty
to allow DNA testing, the prosecutors or the DA's office
(31:32):
finally agreed to do the DNA testing, and that's why
the DNA testing occurred in ninety three, ninety four U
five or otherwise, if that legislation wasn't going to be
on the books, they would probably continue to refuse it,
even though you know, people at that point were being
exonerated because the results of the DNA tests. These people
fought tooth and nail against this DNA tests, and then
(31:54):
when we finally got the DNA test going, the judge
finds it unreliable, like you mentioned before. But you know,
I always had this hope, right and then you know,
things started falling together with more people get involved, and
the more people that got involved were more confident. I
felt that I was gonna one day be vindicated.
Speaker 1 (32:15):
But let me ask you, I mean, I guess what
I'm trying to figure out is it seems like it
would have been.
Speaker 2 (32:22):
Really easy for you to either give.
Speaker 1 (32:24):
Up or get consumed by anger, because this was not
a situation where it was a mistake. This was a
situation where you were deliberately prosecuted and persecuted by people
who did you incredible harm and also deny justice to
the family who must have been fucking devastated. I mean, like,
(32:45):
as a father, I can't imagine you know what they
went through, and then there's no justice for them either.
Speaker 2 (32:50):
So is there a secret that you could share.
Speaker 1 (32:53):
That allowed you to sort of find this extra gear
and instead of banging your head against the wall or
doing whatever you channel This seems.
Speaker 3 (33:00):
Like this is this is gonna sound strange, but I
still use this line today. It could be worse. Right,
And I was facing a level of adversity that the
average person could never understand. Well, I was inside. I
read a lot, but I didn't read you know, novels.
(33:23):
I read a lot of nonfiction. I read a lot
about World War Two. I read a lot about POW's.
So I'm putting in my brain like, okay, me doing
his life sentence for somebody I didn't do. How does
that compare to an eighteen year old kid that is
pushed onto the beach in Normandy and you know, lives
(33:43):
for five minutes and he's gone, right, or a Pow
in the Philippines that is being tortured every day. So
I'm putting my adversity in and kind of perspective of
you know adversity that other people in worse situations that
I was in. Right, at least I was getting three
(34:04):
meals a day. I wasn't being physically taught you, nobody
was pulling my fingernails out. I put it all in
a perspective of you know, a peow in the Philippines
or a pow in Vietnam, and I got it in
my brain. Well, at the end of the day, I
don't belong here, but it could be worse.
Speaker 4 (34:21):
John's too modest to talk about this, but I'm going
to say he also spent a lot of time when
he was in prison trying to make it a less
horrible place for other people, and also helping people on
the outside. So among the many things he did, like
when I first talked to his prison counselor, she just
blew up my phone with oh my god, John, He's
just incredible. I want him to go home, but what
(34:42):
are we going to do without him? He was an
HIV AIDS counselor for other inmates, either on how to
avoid contracting the disease or helping him deal with their diagnoses,
even though he was a straight man who was HIV
negative at a time in the eighties and nineties when
people were scared to talk about AIDS, much less work
directly with people who were affected. He'd worked with mentally
ill and mad, to the guys that everybody thought was
(35:02):
crazy and were prized at the prison, and he was
just trying to help them get the medication they needed
and the support they needed. And then people on the outside,
I know people who John was like their phone buddy,
you know, family friends and young nieces and nephews who
he would just call once a week and like talk
them through their problems in school, their issues with their families.
You know, all the while he's facing the most unimaginable
(35:23):
thing any of us think we could go through, and
that's just a testament to who he is and how.
Speaker 3 (35:28):
Strong he is.
Speaker 1 (35:29):
I'm glad you said that, because that is an awesome
thing to hear from me. I'm sure many other people
who are going through whatever they're going through to hear
your perspective on that. And here then, Nina, you know,
adding in what you were too modest or humble to
talk about, it's incredible. And I got to tell you, John,
and you know it's true too, that I think I
can speak for Nina and almost any of the other
(35:52):
six hundred of us who are here at the Innocence
Network conference who are part of the network, right the
activist lawyers, the social workers, the people who are just
obsessed with this stuff, like me. And the simple reason
why is because of people like you. When someone's made
aware of the quality of person that you are, and
that I would say the overwhelming majority of the people,
(36:13):
the men and women who've been exonerated, what they're made
out of, it's like it only inspires us to want
to do more. And that's why for anyone who's ever
asked me, you know why you keep doing this, it's
because of people like you.
Speaker 2 (36:28):
So you know, what can I say? You have all
my respect?
Speaker 3 (36:32):
Well, I look at it from the other perspective because
and I appreciate where you're coming from. But to me,
people in en isshoes, they're my hero. People in your shoes,
what you do for the movement, you're my hero. And
everybody who supports this movement, they're my hero. Right Because
(36:55):
if it wasn't for people like Nina and people like you, right,
I probably still being at sixty eight.
Speaker 2 (37:02):
John.
Speaker 1 (37:02):
I just want to ask you one more question, though,
and then I am going to get to the closing.
So I interviewed Gloria Kelly on on the podcast and
she said she's an amazing, amazing woman, very powerful presence,
and wrongfully convicted started seventeen and a half years. I
encourage people to listen to her episode of the podcast.
(37:24):
But she said something that I think is important to hear,
and I want to get your perspective on that. She
said to anyone listening, if you don't think this can
happen to you, it can happen to you.
Speaker 2 (37:35):
Would you agree with that most definitely?
Speaker 3 (37:38):
And you could be walking down the street one day,
just mining your business and get surrounded by cops and
before you know it, you're thrown into the system and
you don't have a clue to what's going on until
all of a sudden you're brought in front of a
judge and you're being charged with whatever, and you're totally
(37:59):
clueless as to what happened. And a lot of these
wrongful conviction cases, that's exactly what occurred. I mean, because
if so many things that this can't happen to them,
that's totally wrong, because being wilfully convicted can happen to anybody, anybody,
and it doesn't have anything to do with race, gender, anything.
(38:21):
And I wouldn't wish this on my worst enemy to
have to go through something like this, because no matter
what you do, after you're exonerated, you carry it for
the rest of your life. I mean, it doesn't go away.
Speaker 1 (38:34):
Well, yeah, you can't get back those years and all
the things that you missed, the birthdays, the family stuff,
just everything.
Speaker 2 (38:41):
I mean, nobody can give you those back. If we could,
we would.
Speaker 1 (38:44):
But that being said, it's amazing to see you making
the most out of it. And you're in Florida. You're
enjoying some sun and some palm trees or whatever it
is down there, and I'm really glad that things are
going your way. And now comes my favorite part of
the show, which is the part of the show where
(39:06):
I first of all, thank both of you, Nina Morrison
and John Restivo for joining me sharing your thoughts on
Wontful Conviction.
Speaker 2 (39:16):
So thank you both for being here.
Speaker 1 (39:18):
And now I get to sit back and listen and
just leave the microphones on for final thoughts. And I'm
going to let Nina go first because it would be
appropriate for you to close the show so you're batting
clean up, so to speak.
Speaker 2 (39:35):
So anyway, So, Nina, well, all I.
Speaker 4 (39:38):
Want to say is, you know, your listeners have gotten
a favor for who John is and what he's gone through.
But one of the things that's really special about John
is what he's done after he's been out and how
much he's done. He's done a lot to help get
people registered to vote in Florida, to feed the homeless,
to make his community better. And his personal journey is
(39:59):
told in this beautiful, Beautiful future story in the New
Yorker magazine by a writer named Ariel Levy, And if
people google John's name and the title, I think is
the Price of a life, And it's all about the
deep pain and suffering that he went through. If your
listeners are interested in the human toll that wrongful convictions take.
Ariel told his story in a very revealing and intimate way,
(40:22):
and I hope folks will check it out.
Speaker 2 (40:24):
Joh It.
Speaker 3 (40:25):
I just take it one day at a time. I
wake up in the morning and I just say to myself,
no day in paradise. I'm just glad to be free.
And if I can do something to help my community,
or if I feel or if I see something that
needs to be done, I try to help. And I
(40:46):
was involved in two thousand and eight in this huge
voter registration thing that we had going in Florida, and
we just got passed. We got an amendment past where
felons are going to be allowed to vote. So now
we're going to have to start getting felons registered to
(41:09):
vote for our upcoming election. And when I'm asked, I
have a group of friends, and when I'm asked to help,
I'm more than happy to help. And I want to
thank you for having us here.
Speaker 1 (41:24):
All I can say is thank you both again, and
thank you all for listening. And I'll see you next
week on Wraeful Conviction. Don't forget to give us a
fantastic review wherever you get your podcasts.
Speaker 2 (41:42):
It really helps.
Speaker 1 (41:43):
And I'm a proud donor to the Innocence Project and
I really hope you'll join me in supporting this very
important cause and helping to prevent future wrongful convictions. Go
to Innocence Project dot or org to learn how to
donate and get involved. I'd like to thank our production team,
Connor Hall and Kevin Wartis. The music in the show
is by three Time Oscar nominated composer Jay Ralph.
Speaker 2 (42:05):
Be sure to.
Speaker 1 (42:06):
Follow us on Instagram at Wrongful Conviction and on Facebook
at Wrongful Conviction podcast. Wrongful Conviction with Jason Flahm is
a production of Lava for Good Podcasts and association with
Signal Company Number one
Hosts And Creators
Lauren Bright Pacheco
Maggie Freleng
Jason Flom
Popular Podcasts
Las Culturistas with Matt Rogers and Bowen Yang
Ding dong! Join your culture consultants, Matt Rogers and Bowen Yang, on an unforgettable journey into the beating heart of CULTURE. Alongside sizzling special guests, they GET INTO the hottest pop-culture moments of the day and the formative cultural experiences that turned them into Culturistas. Produced by the Big Money Players Network and iHeartRadio.
The Joe Rogan Experience
The official podcast of comedian Joe Rogan.
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.