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 the presence of semen implied that a rape had 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 and contained all of the information authorities knew at the time, looping in the 3 men as the perpetrators.
With the false confession, a coerced and flipped alibi witness, evidence tampering, and the victim’s hair said to have been found in Restivo’s van, the trio were convicted and sentenced to 33 and a half years in prison. Despite years of obstruction, DNA testing would later exclude all three men and repeatedly implicate a still unknown assailant. 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.
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Episode Transcript
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Speaker 1 (00:02):
On December fifth, four, the naked body of a sixteen
year old girl was found in a wooded area of
lynn Brook, 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 nine five,
(00:24):
authorities believed that this rape and murder were connected to
similar disappearances, and investigators started focusing on Dennis Halsted, 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 Cooked, an occasional employee of his and his brother's
moving business. After COVID was given three polygraphs, police asserted
(00:48):
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 COVID, containing information all of
which was previously known to investigators. According to COVID's false confession,
(01:09):
the victim voluntarily got into Restivo's van, where Covid and
Halsted stripped her and Halsted raped her. Further into this
coerced statement, he said that when they arrived at a cemetery,
Restivo also raped her and Covid strangled her. When she
regained consciousness and became frantic. With the false confession, that
a number of hairs found in Restivo's band said to
(01:30):
have matched the victims, the three men were tried over
the course of nine six John Covid was tried separately
and convicted of rape and murder in March, Thenis Halsted
and John Restivo in November. Through the concerted efforts of
Centurion Ministries, Paced Law School's Post Conviction Clinic, Private Council,
and the Innocence Project, that defense used police department property
(01:52):
records to finally locate and test intact vaginal swaps for
DNA in two thousand and three, ultimately excluding the three
men as the perpetrators. John Restivo spoke with US at
the Atlanta Innocence Network conference to tell their horrifying story. Together,
they spent over half a century in prison for a
crime they did not commit. This is rawful Conviction with
(02:16):
Jason plom Welcome back to Wrongful Conviction. I'm especially excited
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 um, ever since I read your story
(02:38):
in The New Yorker, John Restivo, I've been sort of
in awe of your your story, your your case, your everything.
So I'm really I'm really happy you're here. Yeah, what
a long, strange trip has been. Yeah, how about it?
And like I always say, I'm sorry you're here, but
I'm happy you're here. So um and with you. Nina
Morrison is a return guest on this Year Is Today.
(03:00):
Nina is the senior staff attorney at the Innocence Project
in New York. Um, welcome back, Thank you, Jason. It's
always so nice to be here, and this is gonna
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 is which makes it personal
(03:22):
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 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
(03:43):
let's go back to it. All these crimes we talked
about are horrible. This one is particularly terrible, right. This
is the rape and murder of a young girl, sixteen
year old girl. And obviously everybody wants to see those
crimes solved, but they don't want to see it solved
this way. I mean, when we get the wrong people
locked up. Whoever it is that did this was free
(04:04):
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. What were you doing? Yeah, I was
inna moving business with my brother, right, And when young
lady disappeared, we had seen articles in newspaper there was
missing persons flyes on different store windows or telephone poles.
(04:27):
So people in the community knew that the young lady
who was a mission which town was this just was
in Linbrook, New York, in Nashville County, all Ang Island. 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
(04:50):
being a missing person's case, it's a homicide. And this case,
it's got so many layers because you have three guys
with makes it really especially 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, and we know how that
goes as well. But every one of those even inside
(05:12):
of that false confession, there's a lot of nuance to
those situations. Do you want to talk about that? Because
I was a guy named Kogut right, Well, part of
the problem with the introgation 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 lie detective test and the police told him
(05:36):
he failed the lie detective tests. And we had experts
that actually viewed the you know, the Polly charge, 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
(05:57):
guy is being you know, he's in a small room
with a couple of these let's call him thugs because
that's what they are. Don't get me wrong. I'm not
calling all police thugs. We need the police, and I'm
not saying that and and that's yeah, so I'm not
a calling roll police bad. But so they held that
over his head, saying that, okay, you lied during the
(06:19):
polygraph test, which was an actual lie. I mean, they
will lie into him, right, and they're polygraph expert said, well,
I don't really go by the charts. I go by
the person's demeanor while i'm giving them, while I'm giving
them the test. It's just it's just a tool they're
(06:40):
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 it guilt presumptive interrogation
where they bring somebody in they've already decided based on
(07:01):
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. In
the false confession, right, everything that the police had known, right,
every fact that they knew, right, was incorporated into this confession. Right,
(07:28):
the young lady disappears in early November. They're interrogating COVID
in early March of night five, And according to the police,
in this false confession, this facts coming out of color
of pocket book, color of sneakers. I mean things that
(07:51):
no normal person could ever remember. You know, last week,
what did you have for breakfast last Monday? I mean,
like every fact was known, even 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
(08:16):
they knew was incorporated into the false confession except one thing.
The police didn't know. The color 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
(08:38):
classic false confession because no normal person would be able
to actually remember all of these facts. There was just
too many facts incorporated into this confession for it to
be reliable. Okay, now we know that COVID confessed, but
how did that lead to your case being brought to
where it went and ultimately to you being that it
(09:00):
almost executed 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 believe that they
were going to frame us one way to other. Right
(09:21):
when Dennis 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 a 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
(09:42):
in the floors. I was an house all night, died evening.
I was on the phone with my girlfriend, who was pregnant.
We were putting Polly, you're thing on the floor, so
she was pregnant. She putn't be an house. She was
out of mother. So we had phone records, we had receipts,
so we knew exactly where we were where I was right,
and Dennis was with his kids and another town, and
Kobe was at a birthday party in another town. We
(10:04):
didn't 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 sand 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 today witness,
(10:48):
and he actually gave damage and testimony against me at
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
(11:10):
many times, right, 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
(11:32):
put so much pressure on his dude and flipped them. Yeah,
I mean, he was in an impossible situation. It doesn't
excuse what he did, No, you're right in the 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,
(11:53):
you're gonna end up in jail with him, and he
sees innocent people in jail, right, and he sees how
easy was but the police to do that. Exactly. He
knows what they're capable of because he already knows you're
innocent and he knows what they're doing to you. So
there's no reason to not believe that they would do
the same thing, right. And then we had the other
problem with the police planting evidence in the van, and
(12:15):
the judge was that it was a bench trial, so
the judge concluded that the hedge that they intimated that
were found in my van would never in the van, right.
And you know, let's talk about that because that is
even by the standards of some of the crazy ship
that we see in this line of work. That's going
(12:35):
even beyond some of the misconduct, you know, this is
so far. They were literally pulling hairs from the corpse
and then taking those hairs and putting them in the van.
Like who does a thing like that? Well, who does it?
Are police who are desperate to solve a crime that
has the community absolutely terrified and up in arms. So
(12:56):
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 in her
name is Teresa Fusco. Was actually one of three young
women that went missing around that time, and the other
two to this day, those crimes have never been solved,
(13:17):
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 every 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 the
parents that elected officials, the teachers are saying, solve this crime,
(13:37):
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 get poor
John Kovid, who had had a really rough life grown
up in foster care. Nobody to fight for him, and
(14:00):
even he held out for hours and hours till 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
fruits to the crime, or anything about her that wasn't
part of the police's knowledge. But everything they did know
(14:22):
almost two 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,
nothing of hers that was ever found with them, no
eyewitnesses as far as anybody knew at the time, who
had seen one vehicle she'd gotten into, and she was
(14:44):
leaving her job at a roller skating rink. And you know,
we don't say lightly that police framed 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
is actual scientific evidence that John and his co defendants
got framed, namely Detective Vulpie to lead homicide detective claimed
(15:07):
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
to be the same as Teresa's hairs. I mean, later
tod DNA and confirmed that they were in factor hairs.
So that would be pretty bad evidence, and normally you'd think, well,
(15:28):
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.
(15:49):
They had this 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
all he takes these hairs and whether he planted them
in the van or just put him in an envelope
marked hairs from van that was back at the lab.
We don't know, it doesn't really matter, but he lied
under oath and said that these hairs came from the van,
(16:11):
and it's physically impossible because she had been decomposing for
several weeks when these when these hairs were collective, they
were from her autopsy, not from the van. 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
vulpy character who does the type of damage that he did,
(16:32):
they have to be held to account. I mean, these
detectives actually created a fictitious scenario after they actually botched
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,
(16:54):
and when this car was recovered approximately a week later,
they found a pair of blue striped jeans with one
of the legs inside out in the back, but the
stuffed underneath the sea and on the missing persons report
when she was last seen, that's what she was wearing.
(17:15):
Blue stripe jeans. So the homicide cops grabbed his car, right,
which was already cleaned by the owner, and the blue
stripe jeans were thrown out by the Limber police department.
So there was police reports regarding the stolen car and
the blue striped jeans, right, And then there was a
(17:35):
piece of rope missing from the car. And according to
the m E. Right, there was a piece of 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 we had the car
were recovered, they found the piece of rope, but they
took a picture of the piece of rope. And one
(17:58):
would think that given the significance of that this piece
of rope would be taken into evidence and vouching, and
the police say it never was. So this is information
that should have been turned over to the defense, and
the never was. And we never found out about this
information until we were in the civil litigation stage twenty
(18:20):
something years later. Correct, I was John's Innocence project lawyer.
We didn't know about this information. You know. 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
(18:43):
than the entire case that was against John and his
co defendants, but that is evidence. Often we learned about
that when we're in post conviction, meaning the person has
been convicted and we're litigating their appeals and we're trying
to exonerate them. In John's cases, 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
(19:05):
of the case, But we didn't even know about this
other evidence the police had of his innocence until 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 d a's
(19:25):
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
evidence that could have cleared him even before he went
to trial. As the son of a police officer, this
(19:52):
must have been totally surreal to you because as much
as we all grew up and when I was a son,
I had, you know, 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, um,
in the year that we grew up in. But for you,
it was a very personal thing, right. You must have
been very proud to have a dad it was a cop,
I would think, right, I mean I would be. But
(20:15):
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? Was he alive at this time?
My father passed away in January four so he wasn't around.
But my father said something to me at one time
(20:36):
while he was on the job, and he told me,
if you ever have a problem with the top coal oil.
And when the police brought me in and interrogated me
for twenty plus hours, Once I was released, I immediately
why don't you call her? At first, they wouldn't let
(20:58):
me leave, they took my cockeys. I mean, they would
let me call the layer. 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 call. There's so
many things wrong with this that I'm just like, no,
this is a complicated case. There's no doubt about it,
(21:20):
and uh, 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 could pick somebody out of a group, right and
(21:42):
make them a target, and then they fabricated case around them,
and that's exactly what they did to us. But but
from day one, I requested DNA testing, and back in
the eighties mid eighties, there was no DNA testing, and
back in we had three different d N eight has done.
One was inclusive, the two other ones excluded us. And
(22:04):
back in I thought we were going to get loose.
I thought that was going to be the end of
the gospel. That wasn't the case. The judges should have
been one of the first DNA gulantarmies in the country
because he was going in pro sae 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
(22:24):
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 or John Cookeett, and the d
A said, it doesn't matter. It could have been a
fourth guy, right, fourth guy, there's a third guy. There's
no second guy. There was one guy. It was his
sperm and it wasn't any of these guys. And he
(22:46):
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,
not giving you a new trial. And so there he was,
you know, the mid nineties, starting at square one again.
Let's just reflect on that for a second too. So
you prove with DNA that you were innocent and They're like,
(23:09):
that's right, doesn't matter. I think probably everyone at home
is experiencing the same or in your car orerever you're
listening the same thing that I'm experiencing, which is that
wait a minute, that sounds like a misprint or a
misstatement that can't really be true. The prosecute is actually lied.
In their papers about the reliability of tests. They insinuated
that the test results were not reliable, which is ludicrous
(23:32):
because there's two independent tests done by two independent labs,
and they identify the same exact DNA profile. So if
one layer made a mistake, how could the other lab,
independent lab make the same mistake and identify the exact
(23:53):
same DNA profile. So when they argued in their papers
that the tests weren't reliable, I mean, that was totally ludicrous,
and the judge adopted older is insanity. And then 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
(24:14):
that was tested for this last round was off of
a vaginal slide, which is a glass slide that the
medical examiner autopsy makes from the cotton swab that was
actually had most of the sperm and 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
(24:36):
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 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
(24:56):
had been covering up for this last ten years, which
was absurd um, but the courts bought it. And so
then they basically gave John a challenge which was proved
us wrong, proved to us that your DNA is not
really there, And then we 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
(25:21):
would be able to run that result through the federal
and state databases, you know, through quotas, right, and again
when they tested that it comes back matching the same
DNA profile that came back in the nineties. Yeah, and
they ran it through code is hoping that they would
get a hit, right, And since they didn't get a hit,
(25:43):
they're still maintaining that it's not reliable. Then in two
thousand and two, I met Nina Marson, and I p
took on more involvement in the case right and got
us old in pendant lawyer's right. They got lay's for Dennis,
they got lawyer's for John. And in early two thousands
(26:06):
and three and Nina and a couple of the lawyers
went to inventory evidence that the police had and lo
and behold 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,
find can we come look through the boxes? So we're
out there with an assistant to a who was near
(26:27):
to the office, relatively new and she said, YEA, let's
just go look through the boxes. It's go ahead time.
So Nina or Neil Deloise they opened up the boxes
and they're going through the boxes and will 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 fust goes name on it, and it's
(26:48):
vouched by Volpi and after day insinuated all of them
is that there's no samples left to be tested. It
was right there in the box, you know, in the
d a's officer and a police headquarters wherever they were,
and Nina scene is and the acene is and and
now they had to collaborate. Okay, now where are we
going to send this to have it tested? And they
(27:08):
sent it out to have it tested. And this is
a sample that was never touched, so it's in pristine condition.
And if anybody had raped her that that DNA is
going to be on there. So they 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
(27:30):
then suddenly we had this big intact swab that everybody
said was gone for fifteen years. It was finally available,
and not surprising 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 an example the D's office. Finally, you
know that, plus a whole lot of other evidence we gathered. Um,
(27:52):
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 young lawyer, very motivated, shall we say, and I
still am, but you know I was. I was very
invested in this one, and a whole bunch of US
Centurion ministries even since project to del Bernard and then
my old law school classmate Terry Moroney, who was a
(28:14):
lawyer at a big firm. We all we all did
this big presentation with Barry check together and got them
to finally agree. They actually caved in and agreed we
didn't have to go to court. They agreed to throw
out their convictions. You had a kind of a bright
future at the time, right, you had a pregnant girlfriend. Right,
(28:37):
you had a good job. Right, Um, 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 up right, I think, which is the
rape and murder of an underage person child at a
teenager or whatever. How did you deal with this? And
then you had to go through this eighteen years in
(28:58):
the maximum security is I mean, can you chick us
through that in the beginning? And turned my life upside down.
I 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.
(29:20):
And I had the one thing going for me that
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 end up in a 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 a legal scholar, but I became a legal writer.
And I started writing and writing, and I started writing
lettuce to all kinds of organizations or individuals seeking help.
(30:08):
And I wrote since showing ministries in 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 expect the DNA
testing that this returns office refused to do it. This
(30:29):
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 or
nineteen eighty nine, something like that, and I think it
was an old Encounty case. And so I wrote my lawyer,
I mean, if they're gonna use this to convict somebody,
why can't we use this to exonerate us? Right? And
(30:53):
I got letters signed by John by Dennis agreeing to
have this DNA test done in 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 emotion. The judge denied it,
and then my lawyer went on his own writing campaign
(31:16):
to the d A 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 d A S office finally agreed
to do the DNA testing, and that's why the DNA
(31:36):
testing occurred in Otherwise, if that legislation wasn't gonna be
on the books, that would probably continue to refuse it,
even though you know, people at that point were being
exonerated because of the results of DNA tests. These people
fought tooth and nail against this DNA tests, and then
we finally got the DNA test of going that justud
(31:57):
finds it unreliable, like we've mentioned before. But you know,
I always had this hope, right and then you know,
things started full and together with more people who getting involved,
and the more people that I got involved were more confident.
I felt that I was gonna one day be vindicated.
But let me ask it. I mean, I guess what
I'm trying to figure out is it seems like it
(32:20):
would have been really easy for you to either give
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 denied justice to
(32:40):
the family who must have been fucking devastated. I mean, like,
as a father, can't imagine you know what they went through,
and then there's no justice for them either. So is
there a secret that you could share that allowed you
to sort of find this extra gear and instead of
banging your head against the wall or doing whatever you
you channeled. This seems like this is gonna this is
(33:01):
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. I read a lot of nonfiction.
(33:25):
I read a lot about World War Two. I read
a lot about POWs. So I'm putting in my brain like, okay,
me doing his life sentence to somebody didn't do, how
does that compare to an eighteen year old kid that
is pushed onto the beach Normandy and you know, lives
for five minutes and he's gone, right, or a pow
(33:48):
in the Philippines that is being tortured every day. So
I'm putting my adversity and kind of in kind of
perspective of, you know, adversity that other people in worse
situations that I was in. Right at least I was getting,
you know, three meals a day. I wasn't being physically taught.
You nobody was pulling my fingernails out. I put it
(34:10):
all on perspective of you know, appere W and the
Philippines or appeal W and Vietnam and and I got
it in my brain. Well, at the end of the day,
I don't belong here, but it could be worse. 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.
(34:33):
So among the many things he did, like when I
first talked his prison counselor, she would just blew up
my phone with oh my god, John, He's just incredible.
I want him to go home, but what are we
gonna do without him? He was a 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 band who was HIV negative. At
(34:53):
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 worked with mentally ill and
made the guys that everybody thought was crazy and we're
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,
(35:13):
family friends and young nieces and nephews who he would
just call once a week and like talk them through
their problems in school and their issues with their families.
You know, all the while he's facing the most unimaginable
thing any of us I think we could go through
um and that's just a testament to who he is
and how strong he is. I'm glad you said that,
because that is an awesome thing to hear from me.
(35:33):
I'm sure many other people who are gone 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 gotta tell you, John, you know it's true too
that I think I can speak for Nina and almost
any of the other six hundred of us who are
here at the Innocence Network conference. Who are part of
(35:56):
the 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,
and someone's made aware of the quality of person that
you are, and that I would say the overwhelming majority
of the people, the men and women who have been exonerated,
(36:17):
what they're made out of. It's like it only inspires
us to want to do more. And and 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. So
you know, Um, what can I say? You have all
my respect? Well, I look at it from the other
perspective because and I appreciate where you're coming from. But
(36:40):
to me, people who need issues, they're my hero. People
in your shoes where you do for the movement, you're
my hero. And everybody who supports this movement, Da're my hero.
Right because if it wasn't for people like Nina and
people like you, write, I probably still being at six
(37:01):
eight John. I just want to ask you one more
question though, and then I am going to get to
the closing. So Um interviewed Gloria Kelly on on the
podcast and she said, um, she's an amazing, amazing woman,
very powerful presence and wrongly convicted seventeen and a half years.
I encourage people to listen to her episode of the podcast.
(37:24):
But she said something that, UM, 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. Would
you agree with that most definitely? And you could be
walking down the street one day, just minding your business
and get surrounded by cops and before you know it,
(37:46):
you're thrown into the system and you don't have a
clue as 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 clueless as to
what happened. And and a lot of these wrongful conviction cases,
that's exactly what occurred. I mean, because if so many
(38:07):
things that this can't happen to them, that's totally wrong.
Because being woefully convicted can happen to anybody, anybody, and
it doesn't have anything to do with raise gender anything.
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
(38:31):
the rest of your life. I mean, it doesn't go away.
Well yeah, you can't get back those years and all
the things that you missed, the birthdays, the family stuff,
just everything. I mean, nobody can give you those back.
If we could, we would. But that being said, um,
it's amazing to see you making the most out of
it and you're in Florida. You're enjoying some sun and
(38:53):
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
that part of the show where I first of all,
thank both of you, Nina Morrison and John Restivo for
joining me sharing your thoughts on Rawful Conviction. So thank
(39:16):
you both for being here. And now I get to
sit back and listen and just leave the microphones on
for final thoughts. And I'm gonna let Nina go first
because it would be appropriate for you to close the
the show, so you're bat and clean up, so to speak.
So anyway, So Nina, Well I want to say, is
(39:39):
you know your listeners have gotten a flavor 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 um 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 told in this beautiful,
(40:00):
beautiful feature 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 if your listeners are interested in
the human toll that wrongful convictions take. Ariel told his
story in a in a very revealing, an intimate way,
(40:22):
and I hope folks will check it out. John. I
just take you one day at the 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
(40:42):
needs to be done, I tried to help, and I
was involved in two thousand and eight in this huge
voter registration the 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
(41:06):
now we're gonna have to start getting felons registered to
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. Yet all I can say
is thank you both again, and thank you all for listening,
(41:28):
and I'll see you next week on Wrangful Conviction. Don't
forget to give us a fantastic review wherever you get
your podcasts, it really helps. 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
(41:51):
prevent future wrong of convictions. Go to Innocence Project dot
org to learn how to donate and get involved. I'd
like to thank our production team, Connor Hall and Kevin Wardis.
The music in the show is by three time OSCAR
nominated composer Jay Ralph. Be sure to follow us on
Instagram at Wrongful Conviction and on Facebook at Wrongful Conviction podcast.
(42:11):
Wrongful Conviction with Jason Flam is a production of Lava
for Good Podcasts and association with Signal Company Number one
On December fifth, four, the naked body of a sixteen
year old girl was found in a wooded area of
lynn Brook, 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 nine five,
(00:24):
authorities believed that this rape and murder were connected to
similar disappearances, and investigators started focusing on Dennis Halsted, 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 Cooked, an occasional employee of his and his brother's
moving business. After COVID was given three polygraphs, police asserted
(00:48):
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 COVID, containing information all of
which was previously known to investigators. According to COVID's false confession,
(01:09):
the victim voluntarily got into Restivo's van, where Covid and
Halsted stripped her and Halsted raped her. Further into this
coerced statement, he said that when they arrived at a cemetery,
Restivo also raped her and Covid strangled her. When she
regained consciousness and became frantic. With the false confession, that
a number of hairs found in Restivo's band said to
(01:30):
have matched the victims, the three men were tried over
the course of nine six John Covid was tried separately
and convicted of rape and murder in March, Thenis Halsted
and John Restivo in November. Through the concerted efforts of
Centurion Ministries, Paced Law School's Post Conviction Clinic, Private Council,
and the Innocence Project, that defense used police department property
(01:52):
records to finally locate and test intact vaginal swaps for
DNA in two thousand and three, ultimately excluding the three
men as the perpetrators. John Restivo spoke with US at
the Atlanta Innocence Network conference to tell their horrifying story. Together,
they spent over half a century in prison for a
crime they did not commit. This is rawful Conviction with
(02:16):
Jason plom Welcome back to Wrongful Conviction. I'm especially excited
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 um, ever since I read your story
(02:38):
in The New Yorker, John Restivo, I've been sort of
in awe of your your story, your your case, your everything.
So I'm really I'm really happy you're here. Yeah, what
a long, strange trip has been. Yeah, how about it?
And like I always say, I'm sorry you're here, but
I'm happy you're here. So um and with you. Nina
Morrison is a return guest on this Year Is Today.
(03:00):
Nina is the senior staff attorney at the Innocence Project
in New York. Um, welcome back, Thank you, Jason. It's
always so nice to be here, and this is gonna
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 is which makes it personal
(03:22):
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 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
(03:43):
let's go back to it. All these crimes we talked
about are horrible. This one is particularly terrible, right. This
is the rape and murder of a young girl, sixteen
year old girl. And obviously everybody wants to see those
crimes solved, but they don't want to see it solved
this way. I mean, when we get the wrong people
locked up. Whoever it is that did this was free
(04:04):
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. What were you doing? Yeah, I was
inna moving business with my brother, right, And when young
lady disappeared, we had seen articles in newspaper there was
missing persons flyes on different store windows or telephone poles.
(04:27):
So people in the community knew that the young lady
who was a mission which town was this just was
in Linbrook, New York, in Nashville County, all Ang Island. 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
(04:50):
being a missing person's case, it's a homicide. And this case,
it's got so many layers because you have three guys
with makes it really especially 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, and we know how that
goes as well. But every one of those even inside
(05:12):
of that false confession, there's a lot of nuance to
those situations. Do you want to talk about that? Because
I was a guy named Kogut right, Well, part of
the problem with the introgation 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 lie detective test and the police told him
(05:36):
he failed the lie detective tests. And we had experts
that actually viewed the you know, the Polly charge, 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
(05:57):
guy is being you know, he's in a small room
with a couple of these let's call him thugs because
that's what they are. Don't get me wrong. I'm not
calling all police thugs. We need the police, and I'm
not saying that and and that's yeah, so I'm not
a calling roll police bad. But so they held that
over his head, saying that, okay, you lied during the
(06:19):
polygraph test, which was an actual lie. I mean, they
will lie into him, right, and they're polygraph expert said, well,
I don't really go by the charts. I go by
the person's demeanor while i'm giving them, while I'm giving
them the test. It's just it's just a tool they're
(06:40):
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 it guilt presumptive interrogation
where they bring somebody in they've already decided based on
(07:01):
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. In
the false confession, right, everything that the police had known, right,
every fact that they knew, right, was incorporated into this confession. Right,
(07:28):
the young lady disappears in early November. They're interrogating COVID
in early March of night five, And according to the police,
in this false confession, this facts coming out of color
of pocket book, color of sneakers. I mean things that
(07:51):
no normal person could ever remember. You know, last week,
what did you have for breakfast last Monday? I mean,
like every fact was known, even 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
(08:16):
they knew was incorporated into the false confession except one thing.
The police didn't know. The color 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
(08:38):
classic false confession because no normal person would be able
to actually remember all of these facts. There was just
too many facts incorporated into this confession for it to
be reliable. Okay, now we know that COVID confessed, but
how did that lead to your case being brought to
where it went and ultimately to you being that it
(09:00):
almost executed 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 believe that they
were going to frame us one way to other. Right
(09:21):
when Dennis 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 a 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
(09:42):
in the floors. I was an house all night, died evening.
I was on the phone with my girlfriend, who was pregnant.
We were putting Polly, you're thing on the floor, so
she was pregnant. She putn't be an house. She was
out of mother. So we had phone records, we had receipts,
so we knew exactly where we were where I was right,
and Dennis was with his kids and another town, and
Kobe was at a birthday party in another town. We
(10:04):
didn't 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 sand 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 today witness,
(10:48):
and he actually gave damage and testimony against me at
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
(11:10):
many times, right, 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
(11:32):
put so much pressure on his dude and flipped them. Yeah,
I mean, he was in an impossible situation. It doesn't
excuse what he did, No, you're right in the 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,
(11:53):
you're gonna end up in jail with him, and he
sees innocent people in jail, right, and he sees how
easy was but the police to do that. Exactly. He
knows what they're capable of because he already knows you're
innocent and he knows what they're doing to you. So
there's no reason to not believe that they would do
the same thing, right. And then we had the other
problem with the police planting evidence in the van, and
(12:15):
the judge was that it was a bench trial, so
the judge concluded that the hedge that they intimated that
were found in my van would never in the van, right.
And you know, let's talk about that because that is
even by the standards of some of the crazy ship
that we see in this line of work. That's going
(12:35):
even beyond some of the misconduct, you know, this is
so far. They were literally pulling hairs from the corpse
and then taking those hairs and putting them in the van.
Like who does a thing like that? Well, who does it?
Are police who are desperate to solve a crime that
has the community absolutely terrified and up in arms. So
(12:56):
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 in her
name is Teresa Fusco. Was actually one of three young
women that went missing around that time, and the other
two to this day, those crimes have never been solved,
(13:17):
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 every 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 the
parents that elected officials, the teachers are saying, solve this crime,
(13:37):
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 get poor
John Kovid, who had had a really rough life grown
up in foster care. Nobody to fight for him, and
(14:00):
even he held out for hours and hours till 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
fruits to the crime, or anything about her that wasn't
part of the police's knowledge. But everything they did know
(14:22):
almost two 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,
nothing of hers that was ever found with them, no
eyewitnesses as far as anybody knew at the time, who
had seen one vehicle she'd gotten into, and she was
(14:44):
leaving her job at a roller skating rink. And you know,
we don't say lightly that police framed 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
is actual scientific evidence that John and his co defendants
got framed, namely Detective Vulpie to lead homicide detective claimed
(15:07):
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
to be the same as Teresa's hairs. I mean, later
tod DNA and confirmed that they were in factor hairs.
So that would be pretty bad evidence, and normally you'd think, well,
(15:28):
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.
(15:49):
They had this 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
all he takes these hairs and whether he planted them
in the van or just put him in an envelope
marked hairs from van that was back at the lab.
We don't know, it doesn't really matter, but he lied
under oath and said that these hairs came from the van,
(16:11):
and it's physically impossible because she had been decomposing for
several weeks when these when these hairs were collective, they
were from her autopsy, not from the van. 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
vulpy character who does the type of damage that he did,
(16:32):
they have to be held to account. I mean, these
detectives actually created a fictitious scenario after they actually botched
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,
(16:54):
and when this car was recovered approximately a week later,
they found a pair of blue striped jeans with one
of the legs inside out in the back, but the
stuffed underneath the sea and on the missing persons report
when she was last seen, that's what she was wearing.
(17:15):
Blue stripe jeans. So the homicide cops grabbed his car, right,
which was already cleaned by the owner, and the blue
stripe jeans were thrown out by the Limber police department.
So there was police reports regarding the stolen car and
the blue striped jeans, right, And then there was a
(17:35):
piece of rope missing from the car. And according to
the m E. Right, there was a piece of 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 we had the car
were recovered, they found the piece of rope, but they
took a picture of the piece of rope. And one
(17:58):
would think that given the significance of that this piece
of rope would be taken into evidence and vouching, and
the police say it never was. So this is information
that should have been turned over to the defense, and
the never was. And we never found out about this
information until we were in the civil litigation stage twenty
(18:20):
something years later. Correct, I was John's Innocence project lawyer.
We didn't know about this information. You know. 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
(18:43):
than the entire case that was against John and his
co defendants, but that is evidence. Often we learned about
that when we're in post conviction, meaning the person has
been convicted and we're litigating their appeals and we're trying
to exonerate them. In John's cases, 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
(19:05):
of the case, But we didn't even know about this
other evidence the police had of his innocence until 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 d a's
(19:25):
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
evidence that could have cleared him even before he went
to trial. As the son of a police officer, this
(19:52):
must have been totally surreal to you because as much
as we all grew up and when I was a son,
I had, you know, 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, um,
in the year that we grew up in. But for you,
it was a very personal thing, right. You must have
been very proud to have a dad it was a cop,
I would think, right, I mean I would be. But
(20:15):
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? Was he alive at this time?
My father passed away in January four so he wasn't around.
But my father said something to me at one time
(20:36):
while he was on the job, and he told me,
if you ever have a problem with the top coal oil.
And when the police brought me in and interrogated me
for twenty plus hours, Once I was released, I immediately
why don't you call her? At first, they wouldn't let
(20:58):
me leave, they took my cockeys. I mean, they would
let me call the layer. 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 call. There's so
many things wrong with this that I'm just like, no,
this is a complicated case. There's no doubt about it,
(21:20):
and uh, 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 could pick somebody out of a group, right and
(21:42):
make them a target, and then they fabricated case around them,
and that's exactly what they did to us. But but
from day one, I requested DNA testing, and back in
the eighties mid eighties, there was no DNA testing, and
back in we had three different d N eight has done.
One was inclusive, the two other ones excluded us. And
(22:04):
back in I thought we were going to get loose.
I thought that was going to be the end of
the gospel. That wasn't the case. The judges should have
been one of the first DNA gulantarmies in the country
because he was going in pro sae 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
(22:24):
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 or John Cookeett, and the d
A said, it doesn't matter. It could have been a
fourth guy, right, fourth guy, there's a third guy. There's
no second guy. There was one guy. It was his
sperm and it wasn't any of these guys. And he
(22:46):
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,
not giving you a new trial. And so there he was,
you know, the mid nineties, starting at square one again.
Let's just reflect on that for a second too. So
you prove with DNA that you were innocent and They're like,
(23:09):
that's right, doesn't matter. I think probably everyone at home
is experiencing the same or in your car orerever you're
listening the same thing that I'm experiencing, which is that
wait a minute, that sounds like a misprint or a
misstatement that can't really be true. The prosecute is actually lied.
In their papers about the reliability of tests. They insinuated
that the test results were not reliable, which is ludicrous
(23:32):
because there's two independent tests done by two independent labs,
and they identify the same exact DNA profile. So if
one layer made a mistake, how could the other lab,
independent lab make the same mistake and identify the exact
(23:53):
same DNA profile. So when they argued in their papers
that the tests weren't reliable, I mean, that was totally ludicrous,
and the judge adopted older is insanity. And then 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
(24:14):
that was tested for this last round was off of
a vaginal slide, which is a glass slide that the
medical examiner autopsy makes from the cotton swab that was
actually had most of the sperm and 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
(24:36):
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 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
(24:56):
had been covering up for this last ten years, which
was absurd um, but the courts bought it. And so
then they basically gave John a challenge which was proved
us wrong, proved to us that your DNA is not
really there, And then we 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
(25:21):
would be able to run that result through the federal
and state databases, you know, through quotas, right, and again
when they tested that it comes back matching the same
DNA profile that came back in the nineties. Yeah, and
they ran it through code is hoping that they would
get a hit, right, And since they didn't get a hit,
(25:43):
they're still maintaining that it's not reliable. Then in two
thousand and two, I met Nina Marson, and I p
took on more involvement in the case right and got
us old in pendant lawyer's right. They got lay's for Dennis,
they got lawyer's for John. And in early two thousands
(26:06):
and three and Nina and a couple of the lawyers
went to inventory evidence that the police had and lo
and behold 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,
find can we come look through the boxes? So we're
out there with an assistant to a who was near
(26:27):
to the office, relatively new and she said, YEA, let's
just go look through the boxes. It's go ahead time.
So Nina or Neil Deloise they opened up the boxes
and they're going through the boxes and will 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 fust goes name on it, and it's
(26:48):
vouched by Volpi and after day insinuated all of them
is that there's no samples left to be tested. It
was right there in the box, you know, in the
d a's officer and a police headquarters wherever they were,
and Nina scene is and the acene is and and
now they had to collaborate. Okay, now where are we
going to send this to have it tested? And they
(27:08):
sent it out to have it tested. And this is
a sample that was never touched, so it's in pristine condition.
And if anybody had raped her that that DNA is
going to be on there. So they 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
(27:30):
then suddenly we had this big intact swab that everybody
said was gone for fifteen years. It was finally available,
and not surprising 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 an example the D's office. Finally, you
know that, plus a whole lot of other evidence we gathered. Um,
(27:52):
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 young lawyer, very motivated, shall we say, and I
still am, but you know I was. I was very
invested in this one, and a whole bunch of US
Centurion ministries even since project to del Bernard and then
my old law school classmate Terry Moroney, who was a
(28:14):
lawyer at a big firm. We all we all did
this big presentation with Barry check together and got them
to finally agree. They actually caved in and agreed we
didn't have to go to court. They agreed to throw
out their convictions. You had a kind of a bright
future at the time, right, you had a pregnant girlfriend. Right,
(28:37):
you had a good job. Right, Um, 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 up right, I think, which is the
rape and murder of an underage person child at a
teenager or whatever. How did you deal with this? And
then you had to go through this eighteen years in
(28:58):
the maximum security is I mean, can you chick us
through that in the beginning? And turned my life upside down.
I 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.
(29:20):
And I had the one thing going for me that
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 end up in a 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 a legal scholar, but I became a legal writer.
And I started writing and writing, and I started writing
lettuce to all kinds of organizations or individuals seeking help.
(30:08):
And I wrote since showing ministries in 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 expect the DNA
testing that this returns office refused to do it. This
(30:29):
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 or
nineteen eighty nine, something like that, and I think it
was an old Encounty case. And so I wrote my lawyer,
I mean, if they're gonna use this to convict somebody,
why can't we use this to exonerate us? Right? And
(30:53):
I got letters signed by John by Dennis agreeing to
have this DNA test done in 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 emotion. The judge denied it,
and then my lawyer went on his own writing campaign
(31:16):
to the d A 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 d A S office finally agreed
to do the DNA testing, and that's why the DNA
(31:36):
testing occurred in Otherwise, if that legislation wasn't gonna be
on the books, that would probably continue to refuse it,
even though you know, people at that point were being
exonerated because of the results of DNA tests. These people
fought tooth and nail against this DNA tests, and then
we finally got the DNA test of going that justud
(31:57):
finds it unreliable, like we've mentioned before. But you know,
I always had this hope, right and then you know,
things started full and together with more people who getting involved,
and the more people that I got involved were more confident.
I felt that I was gonna one day be vindicated.
But let me ask it. I mean, I guess what
I'm trying to figure out is it seems like it
(32:20):
would have been really easy for you to either give
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 denied justice to
(32:40):
the family who must have been fucking devastated. I mean, like,
as a father, can't imagine you know what they went through,
and then there's no justice for them either. So is
there a secret that you could share that allowed you
to sort of find this extra gear and instead of
banging your head against the wall or doing whatever you
you channeled. This seems like this is gonna this is
(33:01):
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. I read a lot of nonfiction.
(33:25):
I read a lot about World War Two. I read
a lot about POWs. So I'm putting in my brain like, okay,
me doing his life sentence to somebody didn't do, how
does that compare to an eighteen year old kid that
is pushed onto the beach Normandy and you know, lives
for five minutes and he's gone, right, or a pow
(33:48):
in the Philippines that is being tortured every day. So
I'm putting my adversity and kind of in kind of
perspective of, you know, adversity that other people in worse
situations that I was in. Right at least I was getting,
you know, three meals a day. I wasn't being physically taught.
You nobody was pulling my fingernails out. I put it
(34:10):
all on perspective of you know, appere W and the
Philippines or appeal W and Vietnam and and I got
it in my brain. Well, at the end of the day,
I don't belong here, but it could be worse. 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.
(34:33):
So among the many things he did, like when I
first talked his prison counselor, she would just blew up
my phone with oh my god, John, He's just incredible.
I want him to go home, but what are we
gonna do without him? He was a 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 band who was HIV negative. At
(34:53):
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 worked with mentally ill and
made the guys that everybody thought was crazy and we're
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,
(35:13):
family friends and young nieces and nephews who he would
just call once a week and like talk them through
their problems in school and their issues with their families.
You know, all the while he's facing the most unimaginable
thing any of us I think we could go through
um and that's just a testament to who he is
and how strong he is. I'm glad you said that,
because that is an awesome thing to hear from me.
(35:33):
I'm sure many other people who are gone 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 gotta tell you, John, you know it's true too
that I think I can speak for Nina and almost
any of the other six hundred of us who are
here at the Innocence Network conference. Who are part of
(35:56):
the 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,
and someone's made aware of the quality of person that
you are, and that I would say the overwhelming majority
of the people, the men and women who have been exonerated,
(36:17):
what they're made out of. It's like it only inspires
us to want to do more. And and 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. So
you know, Um, what can I say? You have all
my respect? Well, I look at it from the other
perspective because and I appreciate where you're coming from. But
(36:40):
to me, people who need issues, they're my hero. People
in your shoes where you do for the movement, you're
my hero. And everybody who supports this movement, Da're my hero.
Right because if it wasn't for people like Nina and
people like you, write, I probably still being at six
(37:01):
eight John. I just want to ask you one more
question though, and then I am going to get to
the closing. So Um interviewed Gloria Kelly on on the
podcast and she said, um, she's an amazing, amazing woman,
very powerful presence and wrongly convicted seventeen and a half years.
I encourage people to listen to her episode of the podcast.
(37:24):
But she said something that, UM, 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. Would
you agree with that most definitely? And you could be
walking down the street one day, just minding your business
and get surrounded by cops and before you know it,
(37:46):
you're thrown into the system and you don't have a
clue as 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 clueless as to
what happened. And and a lot of these wrongful conviction cases,
that's exactly what occurred. I mean, because if so many
(38:07):
things that this can't happen to them, that's totally wrong.
Because being woefully convicted can happen to anybody, anybody, and
it doesn't have anything to do with raise gender anything.
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
(38:31):
the rest of your life. I mean, it doesn't go away.
Well yeah, you can't get back those years and all
the things that you missed, the birthdays, the family stuff,
just everything. I mean, nobody can give you those back.
If we could, we would. But that being said, um,
it's amazing to see you making the most out of
it and you're in Florida. You're enjoying some sun and
(38:53):
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
that part of the show where I first of all,
thank both of you, Nina Morrison and John Restivo for
joining me sharing your thoughts on Rawful Conviction. So thank
(39:16):
you both for being here. And now I get to
sit back and listen and just leave the microphones on
for final thoughts. And I'm gonna let Nina go first
because it would be appropriate for you to close the
the show, so you're bat and clean up, so to speak.
So anyway, So Nina, Well I want to say, is
(39:39):
you know your listeners have gotten a flavor 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 um 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 told in this beautiful,
(40:00):
beautiful feature 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 if your listeners are interested in
the human toll that wrongful convictions take. Ariel told his
story in a in a very revealing, an intimate way,
(40:22):
and I hope folks will check it out. John. I
just take you one day at the 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
(40:42):
needs to be done, I tried to help, and I
was involved in two thousand and eight in this huge
voter registration the 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
(41:06):
now we're gonna have to start getting felons registered to
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. Yet all I can say
is thank you both again, and thank you all for listening,
(41:28):
and I'll see you next week on Wrangful Conviction. Don't
forget to give us a fantastic review wherever you get
your podcasts, it really helps. 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
(41:51):
prevent future wrong of convictions. Go to Innocence Project dot
org to learn how to donate and get involved. I'd
like to thank our production team, Connor Hall and Kevin Wardis.
The music in the show is by three time OSCAR
nominated composer Jay Ralph. Be sure to follow us on
Instagram at Wrongful Conviction and on Facebook at Wrongful Conviction podcast.
(42:11):
Wrongful Conviction with Jason Flam 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
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