|Year of Conviction||1986|
|Year of Exoneration||2005|
|State of Conviction||New York|
|Trial, Bench Trial, or Guilty Plea||Trial|
|Type of Crime||Rape and Murder|
|Gender of Exoneree||Male|
|Race of exoneree||White|
|Type of Innocence Defense|
|Description / Quotes from Testimony Concerning Defense|
● Friends described that he was a birthday party the evening the murder took place. Defendant also described his whereabouts the night of the crime.
|Did the defendant testify at trial?||Yes|
|Quotes from Exoneree Testimony|
“Q: Now, on November 10th or at any time, did you ever pull a girl into a van and help anybody rape her? A: No, I didn’t. Q: Have you ever killed anyone? A: No, I haven’t. Q: Did you kill [the victim]? A: No, I didn’t.
|Types of evidence at trial|
|Were non-public facts alleged?||Yes|
|Type of Forensic Evidence|
|Types of Flawed Forensics|
|Reason why invalid||(4) Invalid statement of hair probability|
|Brief Quote / Description of Testimony|
“I’m saying that in this particular instance that the questioned hair could have originated from the scalp of Theresa Fusco, with a high degree of probability.” No empirical data supports such a statement regarding probability.
|Examples of Non-Public or Corroborated Facts and Inconsistencies|
● Description of victim ● Description of victim’s death by strangling; autopsy confirmed that victim had been killed by a ligature tightened around her throat ● Location of body, which had been hidden in the corner of a cemetery ● Location of victim’s ring, pendant, and cracked heart locket. ● Color of pants, jacket, blankets found at crime scene BUT stated jewelry removed from crime scene, which was not accurate
|Quotes from law enforcement testimony|
A detective stated Kogut “described [the victim] to me at fifteen to sixteen years old, dark hair, medium long hair. She was wearing a blue denim jacket. He thought maybe a dark top and dark pants. And that she had on white hightop sneakers.” Kogut “observed, or he noticed, that she had jewelry on. And he said, on particular item looked like, it appeared to be a heard on a chain. He said there were other charms, but he doesn’t recall what they were like. It looked like a portion of it was broken off.” Detective described Kogut as admitting to burying the victim “in a shallow grave” in a cemetery, and specifically “in the corner of the cemetery.” “He was accurate with the description of the clothing, other than the – well, in his own mind, other than the blouse. He wasn’t sure.” The detective described that blankets from the crime scene were immediately removed for lab analysis and none photographed them at the crime scene.
|Quotes from prosecution arguments|
“[H]e pointed to the exact spot where the body of [the victim] had been…” “So if you believe the defendant, you have to disbelieve… [s]even detectives and police officers…” “Also ask yourselves, if the police wanted to falsely incriminate the defendant, if they wanted to make up a confession, to frame an innocent man, couldn’t they have done a better job? I suggest to you that what’s in that statement is what the defendant said. It’s not Detective Volpe’s words.” “He described that broken heart. Now sure the police knew at the time they interviewed him about that broken heart. . . But they also knew about that unicorn that they found. Why isn’t that in the statement if they made it up, to jive with everything they knew? I suggest it’s not there because the defendant didn’t recall that. But he recalled that double heart.”
|Interrogation Recorded||Video recording of part of interrogation|
|Jailhouse informant, Co-defendant, Incentivized Witness||J|
|Examples of Non-Public or Corroborated Facts and Inconsistencies||● Non-public details included identities of co-defendants and that crime occurred in van|
|Quotes from testimony #3|
“He said he was driving around in the van, him and Dennis and John. They were fucked up, and they did something fucked up.”
|Quotes regarding any deal or leniency with informant, or prior use of informant|
Informant was offered leniency in his case.
|Highest level reached||Appeal|
|Claims Raised During All Appeals and Postconviction|
|Harmless Error Rulings|
|Citations to judicial opinions|
People v. Kogut, 176 A.D.2d 757 (N.Y. App. Div. 2 Dept. 1991)