Lessons Not Learned - The Innocence Project

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in the front passenger seat. The two hairs appeared identical to the victim’s from “root to tip, including artificial treatment.” The Trials John Restivo and Dennis Halstead were tried together for rape and murder in November 1986; John Kogut had already been tried separately and convicted of rape and murder in March 1986. The prosecution argued that the two hairs found in Restivo’s van were corroborative of Kogut’s confession. The defense presented the testimony of hair comparison expert Dr. Peter DeForest. Dr. DeForest testified that the hairs found in Restivo’s van displayed “advanced banding,” a condition caused by bacteria eating away at the interior of the hair shaft. Advanced banding occurs only after death and only when the hair is still attached to the decomposing body, meaning that the victim could not have deposited the hairs while she was alive and supposedly in Restivo’s van. At the time of trial, research on advanced banding was relatively new and no studies had been published about it. The state called its own expert, who testified to the limits of contemporary research, and argued in closing that “for all anyone knows, banding occurs right after death, as when the heart stops and the lungs stop working and the blood settles.” In addition to Kogut’s confession and the two hairs, the state presented the testimony of multiple witnesses who alleged that they had heard Restivo and Halstead make incriminating statements. Both men were ultimately convicted. Post-Conviction Centurion Ministries began working on behalf of all three defendants in 1994. The Innocence Project began working on Restivo’s case in 1997. In the postconviction proceedings that secured the defendants’ release, Kogut was represented by Wilmer, Cutler & Pickering and Centurion Ministries and Halstead was represented by Pace Law School’s Postconviction Clinic. DNA testing in this case went through many rounds over a period of ten years, despite repeated exclusions of all three men. The prosecution initially argued that the samples tested (vaginal slides) were not the “best” samples available and could have failed to detect semen 62 THe InnoCenCe PRoJeCT
APPenDIx A from the defendants present on the original swabs. In 2003, however, the defense team obtained property records from the police department which led to the discovery of an intact vaginal swab that had never been tested. STR testing on the spermatozoa on the vaginal swab matched the single unknown male profile from the prior testing and again excluded all three men. In addition, defense attorneys also secured an affidavit from the state’s expert witness, who had testified in 1986 regarding the hairs found in Restivo’s van. The expert concluded, based on 20 years of research and expertise, that the hairs displayed “post-mortem root banding,” a hallmark of decomposition that only occurs while hairs are attached to a corpse that has been dead for at least 8 hours, if not days or weeks. The banding on these hairs was similar to those found on dozens of hairs taken from the autopsy that had been in unsealed envelopes in a police department laboratory for months. Because the victim was only alleged to have been in the van for a few minutes after death, he concluded, the hairs could not have been shed during that time, and were instead autopsy hairs that were commingled with others from the van – whether through negligence or misconduct. Based on these results, all three convictions were vacated in June 2003 and all three defendants were released. John Kogut, however, faced retrial, based largely on his confession. At trial, the prosecution sought to rebut the DNA evidence by arguing that the victim, who was said by her mother and best friend to be a virgin, had consensual sex with an unknown male prior to her rape and murder. Kogut’s lawyer argued that the confession was false, and won a motion to have expert testimony on false confessions admitted for the first time in New York State. After a three-month bench trial, Judge Ort found Kogut not guilty on all counts in December 2005. His verdict included specific findings that numerous aspects of the confession were contradicted by DNA and other forensic evidence, and that that the decomposed hairs from the victim were not shed by her in Restivo’s van. Before the end of the month, Assistant Nassau District Attorney Fred Klein said in court that the case against Halstead and Restivo should be dismissed because he could not prove guilt beyond a reasonable doubt. 63
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Lessons n o t learned neW YoRK sTAT
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exeCUTIVe sUMMARY Throughout New Yo
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Despite the large number of DNA exo
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23 CAses AnD THeIR ConseqUenCes: A
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8 Hector Gonzalez - Brooklyn Convic
Page 11 and 12: 18 Doug Warney - Rochester Convicte
Page 13 and 14: TRYInG To ReBUILD THeIR LIVes All o
Page 15 and 16: ReAL PeRPeTRAToRs CoMMIT ADDITIonAL
Page 17 and 18: THe Lessons THe Lessons CAUses oF W
Page 19 and 20: THe Lessons • The victim identifi
Page 21 and 22: THe Lessons • County rape in 1987
Page 23 and 24: THe Lessons • victed of the 1989
Page 25 and 26: THe LeARnInG THe LeARnInG LeGIsLATI
Page 27 and 28: THe LeARnInG Allow All of the Wrong
Page 29 and 30: THe LeARnInG cessful, New York shou
Page 31 and 32: THe LeARnInG Convictions, composed
Page 33 and 34: FInDInGs oF THe CoMMIssIon The comm
Page 35 and 36: ReCoMMenDATIons oF THe CoMMIssIon A
Page 37 and 38: ConCLUsIon time to research for evi
Page 39 and 40: APPenDIx A APPenDIx A FULL PRoFILes
Page 41 and 42: APPenDIx A ecution for DNA testing
Page 43 and 44: APPenDIx A process. On July 18, 199
Page 45 and 46: APPenDIx A The initial description
Page 47 and 48: APPenDIx A and if it was still avai
Page 49 and 50: APPenDIx A The following year, all
Page 51 and 52: APPenDIx A Eventually, the evidence
Page 53 and 54: APPenDIx A On December 19, 2002, on
Page 55 and 56: APPenDIx A On the night of April 19
Page 57 and 58: APPenDIx A His chance to test the e
Page 59 and 60: APPenDIx A defenses. Prosecutors al
Page 61: APPenDIx A suggested she had been r
Page 65 and 66: APPenDIx A brother’s moving busin
Page 67 and 68: APPenDIx A days or weeks. The bandi
Page 69 and 70: APPenDIx A While the case was being
Page 71 and 72: APPenDIx A watching television, he
Page 73 and 74: APPenDIx A The Office of the Chief
Page 75 and 76: APPenDIx A Deskovic’s alleged con
Page 77 and 78: APPenDIx A consistent” with Brown
Page 79 and 80: APPenDIx B APPenDIx B RePoRT on THe
Page 81 and 82: RePoRT on ConVICTIon oF JeFFReY Des
Page 83 and 84: RePoRT on ConVICTIon oF JeFFReY Des
Page 85 and 86: scientific evidence exonerated him.
Page 87 and 88: It is, of course, theoretically pos
Page 89 and 90: · · a murder that he did not comm
Page 91 and 92: wholly unsupported by anything poli
Page 93 and 94: investigative reports strongly sugg
Page 95 and 96: interrogations of Deskovic on Janua
Page 97 and 98: a confession. 44 During part of thi
Page 99 and 100: emained steadfast. Finally, on Janu
Page 101 and 102: Deskovic’s knowledge of Correa’
Page 103 and 104: As it was, the Grand Jury was denie
Page 105 and 106: he was aware, as the jury was not,
Page 107 and 108: On this record, the trial judge may
Page 109 and 110: without his attorney. 112 There is
Page 111 and 112: Court’s Mid-trial Loss of Evidenc
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arrested. District Attorney DiFiore
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occasions a voice tape recorder was
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The Innocence Project was founded i
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Lessons Not Learned - The Innocence Project

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