By Mike Schnitzel
John Kogut, 41, who was granted a bench retrial at his request by Acting Supreme Court Justice Victor Ort, served 17 years in prison after being convicted of raping and murdering Theresa Fusco in 1986. His conviction, along with those of his accused accomplices, John Restivo and Dennis Halstead, both of Lynbrook, was overturned in 2003 after new DNA evidence suggested that a fourth, unknown party had sexual contact with Fusco.
It is that evidence that Assistant District Attorney Robert Biancavilla attacked in his opening arguments in front of a packed courtroom. Biancavilla argued that Kogut, Restivo and Halstead had been drinking and doing drugs all night, and therefore probably did not ejaculate when they sexually assaulted Fusco. He also said that the DNA found on Fusco's body came from a consensual sex partner, unrelated to the attack.
"It is not the D.A.'s position that the DNA evidence exculpates John Kogut, Dennis Halstead or John Restivo," said Biancavilla.
Kogut's defense attorney, Paul Casteleiro of Hoboken, N.J., argued that the district attorney's office was twisting evidence in order to obtain the conviction of his client. Casteleiro said that Fusco was a virgin, as far as her friends knew, and now, "20 years later, Theresa Fusco is not a virgin because it doesn't explain the state's case."
Casteleiro said that the DNA evidence did, in fact, prove that Kogut was innocent all along, in spite of videotaped and written confessions obtained from him by police. Casteleiro argued that the confessions came from a man under extreme duress who had endured an 18-hour interrogation without benefit of food, water, sleep or legal counsel.
"During the entire confession, detectives did not make one note to memorialize the statements they say John Kogut came up with on his own," said Casteleiro. "These cops knew that he was a vulnerable human being, and that no one was coming for him. [The detectives] put those words in John Kogut's mouth."
According to Biancavilla, the interrogation took so long because Kogut gave police stories that conflicted with the results of his polygraph test, which Casteleiro claims Kogut passed with "flying colors," and that Kogut was allowed to smoke cigarettes and drink coffee during his interrogation, when he waived his right to legal counsel.
"After he signed his confession, he had breakfast with the detectives and then took them to the Lynbrook cemetery where he had participated in the rape and murder of Theresa Fusco," said Biancavilla.
Casteleiro, meanwhile, said he plans to show that two hairs found in the van in which Fusco was allegedly sexually assaulted were taken from her body after her death, and that they were either planted in the van by detectives or mingled with other evidence in an instance of "gross negligence" by investigators. He also charged that the hairs were found in the van six months after the crime and were in pristine condition, which is hard to explain given that the van was used for holding materials for construction work.
Biancavilla argued that a hair microscopist found new hair in a different area of the van that conclusively belonged to Fusco, and that new technologies have strengthened the state's case. He added that he had a new witness who would testify to seeing Kogut, Restivo and Halstead picking up Fusco from Hot Skates in Lynbrook, where she worked, on the night of Dec. 10, 1984, a new witness who saw Kogut leading detectives to the spot in a Lynbrook cemetery where Fusco was raped and murdered in the van, and witnesses who heard Kogut admit to involvement in the crime.
Casteleiro responded that the prosecution was just "rolling out jailhouse snitches with no credibility and calling it new evidence."
Biancavilla told of parts of Kogut's confession in which he described murdering Fusco by strangling her with a length of rope, as Fusco supporters, wearing badges reading "In memory of Theresa Fusco," looked on in disbelief. "When you [see videotape of the confession], listen to his words," said Biancavilla, "and you'll hear Theresa Fusco saying, 'I gotta tell, I gotta tell.' Watch his face when he tells you what he did to Theresa Fusco. John Kogut himself will tell you what he did to Theresa Fusco."
Fusco's father, Thomas Fusco, said he was present at the trial in a show of support for his daughter. "You want to try and move on, but this is just rehashing what we've already been through," said Fusco. "But [the retrial] is part of the system, and I believe in the system."
Fusco's mother, Concetta Napoli, a witness for the prosecution, told the Herald she would reserve comment until after her testimony is complete.
Kogut's retrial was scheduled to resume at 10 a.m. on Thursday at Nassau County Courthouse in Mineola.
Comments about this story? MSchnitzel@liherald.com or (516)569-4000 ext. 265.
