Kogut v. Cnty. of Nassau
| Decision Date | 14 May 2015 |
| Docket Number | No. 13–3130.,13–3130. |
| Citation | 789 F.3d 36 |
| Parties | John KOGUT, Plaintiff–Appellant, v. The COUNTY OF NASSAU, Police Commissioner Donald Kane, Police Commissioner William J. Willett (2005), Police Commissioner James Lawrence, Detective Sean Spillane (Head Of Homicide 1985), Detective Dennis Farrell (Head of Homicide 2005), Carolann Hesseman, as Executrix for the Estate of Joseph Volpe, Detective Robert Dempsey, Detective Albert Martino, Detective Wayne Birdsall, Detective Milton G. Gruber, Detective Charles Fraas, Detective Frank Sirianni, Detective Harry Waltman, P.O. Michael Connaughton, P.O. William Diehl, and John Does 1–5, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Paul Casteleiro, Hoboken, N.J. (Anthony M. Grandinette, Mirel Fisch, The Law Office of Anthony M. Grandinette, Mineola, New York, Rachel Schulman, Great Neck, N.Y., on the brief), for Plaintiff–Appellant.
Robert F. Van Der Waag, Appeals Bureau Chief, Office of the County Attorney of Nassau County, Mineola, N.Y. (Carnell T. Foskey, County Attorney of Nassau County, Mineola, N.Y., on the brief), for Defendants–Appellees.
Before: KEARSE, STRAUB, and WESLEY, Circuit Judges.
Plaintiff John Kogut, convicted of rape and murder in 1986 but retried and acquitted of those charges in 2005, appeals from a final judgment entered in the United States District Court for the Eastern District of New York following a jury trial before Joanna Seybert, Judge, dismissing his claims brought pursuant to 42 U.S.C. § 1983 and state law against defendants County of Nassau (the “County”) and individual employees or former employees of the Nassau County Police Department (“NCPD”) for, inter alia, due process violations and malicious prosecution. Kogut's claims were tried jointly with the similar claims asserted in an action brought by John Restivo and Dennis Halstead, who also had been convicted in 1986 of rape and murder of the same victim and whose convictions had also eventually been vacated. At the joint trial here, the jury found in favor of the defendants. On appeal, Kogut contends principally that the district court erred (1) in denying his motion for a separate trial of his claims, at which certain evidence that was admitted at the joint trial would, he argues, have been inadmissible, and (2) in denying his motion for a new trial after unadmitted and inadmissible evidence was given to the jury at the joint trial. For the reasons that follow, we affirm.
On November 10, 1984, sixteen-year-old Theresa Fusco failed to return home after leaving work in Lynbrook, New York. Her body was found on December 5, 1984. An autopsy revealed that her death was caused by ligature strangulation; a vaginal swab produced seminal fluids.
During the investigation by Detective Joseph Volpe and other NCPD detectives, Kogut, Halstead, and Restivo allegedly made various incriminating statements. On March 5, 1985, NCPD brought Restivo to NCPD headquarters for questioning. On March 6, 1985, Restivo signed a two-page statement (the “Restivo Statement”), written out for him by Volpe, which stated in part as follows:
I would like to say that sometime back, possibly Nov or Dec., 1984 I stopped by my friend Dennis Halstead's apartment.... We were talking for about 10 or 15 minutes. At this point and kinda of [sic ] out of the blue, Dennis started to talk strange. He started talking about a broad. Dennis said he was with a broad (girl), and that he was either by a cemetary [sic ], in a cemetary [sic ] or across from a cemetary [sic ]. He said he tried to fuck her, then he had to fuck her up, but when he said that he didn't tell me how he fucked her up. He then told me that he strangled her and killed her.
Two weeks later, Kogut was brought in for questioning. After being questioned, and denying knowledge about the crimes against Fusco, Kogut agreed to return on a later date to take a polygraph examination. Kogut took the polygraph exam on March 25; he was then interrogated by Volpe and defendant Detective Robert Dempsey throughout the night. On March 26, Kogut signed a detailed seven-page confession, written out for him by Volpe, in which he implicated himself as well as Halstead and Restivo in the crimes against Fusco (the “Kogut Confession” or “Confession”). Acknowledging at the outset that he had been informed of his rights to remain silent and to have an attorney present (see Kogut Confession at 1), Kogut stated, inter alia, that on a night in November 1984, he, Restivo, and Halstead had been driving along in Restivo's van; they saw “a girl,” “about 15 or 16 years old,” walking along the road by the cemetery and offered her a ride home, which she accepted (id. at 2, 3). After the girl declined an invitation to have sex, Restivo drove the van into the cemetery; Halstead raped the girl while Kogut held her down; then Restivo raped her. (See id. at 3–4.) Restivo and Halstead carried the then-unconscious girl out of the van; when she began to revive and started saying she would “tell,” the men decided that she must die, and Kogut strangled her to death with a nylon rope. (Id. at 4–6.) Kogut took the girl's body back to the van and the men then drove from the cemetery to a wooded area, where they left the body in deep brush, covered with leaves and wooden pallets. (See id. at 6–7.)
A videotape was made, in which an Assistant District Attorney (“ADA”) advised Kogut of his constitutional rights; Kogut acknowledged that he understood them; and he repeated the above story. Kogut was promptly arrested. He was indicted on three counts: first-degree rape, second-degree murder in the course of rape; and intentional second-degree murder. Following additional investigation, Restivo and Halstead were also arrested and were indicted on the same charges.
At Kogut's trial in 1986, the written and videotaped iterations of his Confession were admitted in evidence. The prosecution also introduced hairs of Fusco that were allegedly found in Restivo's van. Kogut denied any involvement in the crime; he testified that the Confession was the creation of Volpe and Dempsey and was coerced. Kogut was found guilty on all counts. He was sentenced to serve 37 ½ years to life in prison.
Thereafter, Halstead and Restivo were tried together. Neither the Kogut Confession nor the Restivo Statement to the police was admitted at their trial. The prosecution introduced the hair evidence and evidence as to statements allegedly made by Restivo or Halstead to third parties. The latter evidence included a statement by Halstead that Halstead, Restivo, and Kogut had raped Fusco; and statements by Restivo that Restivo, Halstead, and Kogut had raped Fusco, that Restivo knew who had killed Fusco, and—prior to the discovery of her body—that the police would find that Fusco had been strangled. Restivo and Halstead were convicted on all counts; each was sentenced to serve 33–1/3 years to life in prison.
Beginning in 1993, samples of semen that had been recovered from Fusco's body at autopsy were subjected to DNA testing, along with DNA samples taken, by consent, from Kogut, Restivo, and Halstead. Tests conducted in 1994 and 1995 excluded all three men as the source of male DNA found in the samples recovered from Fusco's body. Based on these results, Kogut, Restivo, and Halstead promptly moved to vacate their convictions, but their motions were denied. In 2001–2003, new DNA testing was done by three laboratories. These tests identified the same single, intact DNA profile of a male who was “unknown”—i.e., was not Kogut, Restivo, or Halstead, or anyone in law enforcement's Combined DNA Index System database—as the source of the semen recovered from Fusco's body. In the spring of 2003, the County agreed to have the convictions of all three men vacated. Halstead and Restivo were not retried, and the charges against them were ultimately dismissed. Kogut, “based on his written and video confession” (Kogut brief on appeal at 3), was retried. Following a bench trial in 2005, he was acquitted.
Kogut commenced the present action in December 2006 pursuant to 42 U.S.C. § 1983 against numerous defendants, including the detectives involved in the investigation, alleging, inter alia, malicious prosecution with respect to his prosecution in 1985–1986 and his retrial in 2005. Two days later, Restivo and Halstead (or “Restivo/Halstead”) commenced a similar action pursuant to § 1983 against many of the same defendants, alleging, inter alia, malicious prosecution with respect to the events in 1985–1986.
Kogut's complaint asserted, in addition to malicious prosecution, numerous claims, including denial of due process, false arrest, and false imprisonment. It alleged that the Confession attributed to him was entirely fictitious; that he was coerced into signing the Confession after some 15 continuous hours of questioning, during which he was repeatedly abused, verbally and physically; and that he was coerced into repeating the fictitious account on videotape. (See, e.g., Kogut Complaint ¶¶ 56, 58, 63.) Kogut alleged, inter alia, that he in fact was not informed of his constitutional rights (see id. ¶ 51), although he repeatedly asserted those rights (see id. ¶ 58); that he persistently denied any involvement in or knowledge of the events involving Fusco ; that the facts set out in the Confession had been learned by Volpe and Dempsey during the course of their investigation, were not provided by Kogut, and were put in the Confession “to create the illusion that KOGUT had specific personal knowledge about the victim, her manner of death, and the location of the body, amongst other things” (id. ¶ 60); and that defendants had conspired and agreed to lie about the interrogation events, both before the grand jury and at Kogut's criminal trials (see id. ¶ 65).
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