Lessons Not Learned - The Innocence Project

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
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
66 THe InnoCenCe PRoJeCT