False Conviction Claim Hinges on Victim’s Hair

CENTRAL ISLIP, N.Y. (CN) - In 1986, the hairs of a 16-year-old who was brutally raped and murdered falsely tied three men to the heinous crime, but forensic testing might help prove that the damning evidence was planted in their van, a federal judge ruled.

"It's truly a very significant ruling for the plaintiffs and it once again supports their complete and total innocence," their attorney Anthony Grandinette told Courthouse News in a phone interview. "These guys deserve the world to know that they had nothing to do with this crime."

Nassau County authorities fingered John Restivo, Dennis Halstead and John Kogut in the murder of Theresa Fusco, whose nude body was found in the woods of Long Island five weeks after she disappeared on Nov. 10, 1984.

Roughly three months later, county police found two "questioned," or Q8, hairs matching Fusco's in Restivo's blue van, which served as the only evidence connecting the men to the crime.

U.S. District Judge Joanna Seybert briefly recounts the course of the trial in her most recent order.

"At Restivo and Halstead's 1986 trial, prosecutors argued that the presence of the Q8 hairs in Restivo's van proved that Restivo, Halstead, and Kogut used the van to abduct Fusco, rape her, and then, after strangling her in a cemetery, dump her body in the woods near the railroad tracks in Lynbrook-all within a span of a few hours," the order states.

In 2005, Kogut was retried and acquitted after DNA testing excluded the men as the source of the semen collected from Fusco's body. The indictments against Restivo and Halstead were also subsequently dismissed.

A year later, they filed wrongful conviction cases, which will head to trial next month.

On Wednesday, Judge Seybert allowed them to call three expert witnesses to testify that traces of "post-mortem root banding," or PMRB, found on the hairs is a compelling indicator that evidence originated from the autopsy room.

Those experts are Max Houck, a forensic anthropologist who has worked for the FBI's Laboratory Division and a director of the University of West Virginia's Forensic Science Initiative; Nicholas Petraco, a former trace evidence analyst for the New York City Police Department; and Peter De Forest, a professor at John Jay College.

Grandinette said in the interview that these experts would show that the presence of PMRB on the victim's hairs proved their case.

"It's never been seen ever on a live person," Grandinette said, referring to PMRB.

Still, Seybert indicated that the science surrounding PMRB is not conclusive.

"The idea that PMRB takes several days to develop (and thus that it could not have developed in the short time Ms. Fusco was alleged to be in Restivo's van) has not yet been established by scientific standards of proof," Seybert wrote in Wednesday's order.

The judge pointed to research indicated that the development of PMRB could vary depending on race, age, climate and exposure to radiation. She also cited scientific studies researching the development of PMRB on dead gorillas, whose hair is similar to that of humans.

"In sum, the idea that PMRB needs multiple days to develop cannot withstand the rigors of scientific proof, and it goes too far for plaintiffs' experts to testify that their conclusions are sound to a 'reasonable degree of scientific certainty,'" the order states.

The plaintiffs' experts can testify as long as they do not make such representations.

But Seybert refused to let county call Joseph Kadane, a statistician at Carnegie Mellon with no experience studying human hair, to question their conclusions.

"Although there is no dispute that Kadane is an accomplished statistician, it is equally beyond debate that he lacks more than a passing familiarity with hair microscopy and forensic science," the order states. "His expertise is simply not useful in attempting to refute plaintiffs' experts' opinions about PMRB."

Jury selection will begin on Sept. 4, and trial is expected to begin with witness testimony on Sept. 10.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit