Speaker 1: On December fifth, nineteen eighty four, the naked body of
Speaker 1: a sixteen year old girl was found in a wooded
Speaker 1: area of Lynbrook, Long Island. The victim had been last
Speaker 1: seen leaving her job at a local roller rink about
Speaker 1: a month earlier. The medical examiner determined that the cause
Speaker 1: of death was ligature strangulation and seamen found on her
Speaker 1: Baginal swabs suggested that she had been raped. By March
Speaker 1: nineteen eighty five, authorities believed that this rape and murder
Speaker 1: were connected to similar disappearance as an investigator started focusing
Speaker 1: on Dennis Halstead, who was believed to have been associated
Speaker 1: with another young woman who had disappeared. John Restivo had
Speaker 1: been interviewed as part of this investigation and mentioned that
Speaker 1: he was acquainted with John Cogut, an occasional employee of
Speaker 1: his and his brother's moving business. After cogd was given
Speaker 1: three polygraphs, police asserted that he lied when denying involvement
Speaker 1: with the disappearance of the sixteen year old victim. He
Speaker 1: endured twelve hours of aggressive interrogation and eventually he cracked
Speaker 1: and signed a confession that was handwritten by one of
Speaker 1: the detectives. The sixth version of events given by Cogd,
Speaker 1: containing information all of which was previously known to investigators.
Speaker 2: According to Kogo's false.
Speaker 1: Confession, the victim voluntarily got into Restivo's van, where Cogd
Speaker 1: and Halsted stripped her and Halsted raped her. Further into
Speaker 1: this coerce statement, he said that when they arrived at
Speaker 1: a cemetery, Restivo also raped her and Cogit strangled her.
Speaker 2: When she regained.
Speaker 1: Consciousness and became frantic. With the false confession at a
Speaker 1: number of hairs found in Restivo's band said to have
Speaker 1: matched the victims. The three men were tried over the
Speaker 1: course of nineteen eighty six. John Cogo was tried separately
Speaker 1: and convicted of rape and murder in March, then Is
Speaker 1: Halsted and John Restivo in November. Through the concerted efforts
Speaker 1: of Centurion Ministries, Paced Law School's Post Conviction Clinic, Private Council,
Speaker 1: and the Innocence Project, the defense used police department property
Speaker 1: records to finally locate and test intact baginal swabs for
Speaker 1: DNA in two thousand and three, ultimately excluding the three
Speaker 1: men as the perpetrators. John Restivo spoke with US at
Speaker 1: the Atlanta Innocis Network conference. To tell their horrifying story. Together,
Speaker 1: they spent over half a century in prison for a
Speaker 1: crime they did not commit. This is wrongful Conviction with
Speaker 1: Jason plom Welcome back to Wrongful Conviction. I'm especially excited
Speaker 1: today because I've got a guest who I've wanted to
Speaker 1: have on my podcast from long before I even had
Speaker 1: a podcast. So ever since I read your story in
Speaker 1: The New Yorker, John Restivo, I've been sort of in
Speaker 1: awe of your story, your your case, your everything. So
Speaker 1: I'm really I'm really happy you're here.
Speaker 3: Yeah, what a long, strange trip it's been.
Speaker 2: Yeah, how about it?
Speaker 1: And like I always say, I'm sorry you're here, but
Speaker 1: I'm happy you're here.
Speaker 2: So and with you.
Speaker 1: Nina Morrison is a return guest on this year today.
Speaker 1: Nina is the senior staff attorney at the Innocence Project
Speaker 1: in New York.
Speaker 2: Welcome back, Thank.
Speaker 3: You, Jason.
Speaker 4: It's always so nice to be.
Speaker 1: Here, and this is going to be an amazing experience
Speaker 1: for me, I think for everyone who's listening as well,
Speaker 1: mainly because of you, John. So let's get right into it.
Speaker 1: So and Yours is a New York case, right, which
Speaker 1: makes it personal to me as a New Yorker, a
Speaker 1: lifelong New Yorker and just by way of background, John
Speaker 1: was convicted of a rape murder along with two other
Speaker 1: innocent men and sentenced to thirty three and a half
Speaker 1: years of life. Could well have been executed if not
Speaker 1: for Governor Mario Cuomo blocking repeatedly the death penalty in
Speaker 1: New York State. I think that's an important thing to
Speaker 1: touch on. But let's go back to it. All these
Speaker 1: crimes we talk about are horrible. This one is particularly terrible, right.
Speaker 1: This is the rape and murder of a young girl,
Speaker 1: sixteen year old girl. And obviously everybody wants to see
Speaker 1: those crimes solved, but they don't want to see it
Speaker 1: solved this way.
Speaker 2: I mean, when we get the wrong people.
Speaker 1: Locked up, whoever it is that did this was free
Speaker 1: to commit other heinous crimes. But take us back to
Speaker 1: the crime itself. And how did you first hear about it?
Speaker 1: I mean you were at the time, you were in
Speaker 1: the moving business.
Speaker 2: What were you doing?
Speaker 3: Yeah, I was in a moving business with my brother, right,
Speaker 3: And when young lady disappeared, we had seen articles in
Speaker 3: the newspaper there was missing persons, flies on different store
Speaker 3: windows or telephone polls, so people in the community knew
Speaker 3: that the young lady who was missing, which town was
Speaker 3: this just was in Limbrook, New York, in Nasall County
Speaker 3: all around. Yeah, And there was a couple of articles
Speaker 3: in the newspaper. So approximately three weeks later, a body
Speaker 3: is found and it's identified as being her body. And
Speaker 3: now instead of it being a missing person's case, it's
Speaker 3: a homicide.
Speaker 1: And this case, it's got so many layers because you
Speaker 1: have three guys with makes it really specially tragic because
Speaker 1: the other two guys that were convicted of the same
Speaker 1: time that you were convicted of were just as innocent
Speaker 1: as you were. But one of them confessed, right, and
Speaker 1: we know how that goes as well. But every one
Speaker 1: of those even inside of that false confession, there's a
Speaker 1: lot of nuance to those situations.
Speaker 2: Do you want to talk about that? Because I was
Speaker 2: a guy named Kogut, right.
Speaker 3: Well, part of the problem with the interrogation process that
Speaker 3: he was put through is that the police lied to him.
Speaker 3: And I understand, okay, the police are allowed to lie
Speaker 3: to you, but he took a light detechnist and the
Speaker 3: police told him he failed the light detecttists and we
Speaker 3: had experts that actually viewed the you know, the polycharts,
Speaker 3: and our experts said that, you know, he didn't lie, right,
Speaker 3: that he was telling the truth, but the detectives used
Speaker 3: that as a tool against him. You know, while this
Speaker 3: guy is being you know, he's in a small room
Speaker 3: with a couple of these let's call them thugs, because
Speaker 3: it's that's what they are. Don't get me wrong. I'm
Speaker 3: not calling all police thugs. We need the police, and
Speaker 3: I'm not saying it. And that's yeah, so I'm not
Speaker 3: calling all police bad. But so they held that over
Speaker 3: his head, saying that, okay, you lied during the polygraph test,
Speaker 3: which was an actual lie. I mean they were lying
Speaker 3: to him, right, And their polygraph expert said, well, I
Speaker 3: don't really go buy the charts. I go by the
Speaker 3: person's demeanor while i'm giving them, well, i'm giving them
Speaker 3: the test.
Speaker 4: It's just a tool they're using to interrogate someone. It's
Speaker 4: not and polygraphs are not you know, people can debate
Speaker 4: whether they have any utility for determining if someone is
Speaker 4: or is not telling the truth, but police have used
Speaker 4: them for decades as part of what they the experts
Speaker 4: now call a guilt presumptive interrogation where they bring somebody
Speaker 4: in they've already decided based on these subjective factors, like
Speaker 4: I get a feeling he's not telling me the truth,
Speaker 4: or they think they have other evidence the person did it,
Speaker 4: and once they decide that the person is guilty, the
Speaker 4: interrogation is not a search for the truth, it's a
Speaker 4: search for a confession.
Speaker 3: In the false confession, right, everything that the police had known, right,
Speaker 3: every fact that they knew, right, was incorporated into this confession. Right,
Speaker 3: the young lady disappears in early November of nineteen eighty four.
Speaker 3: They're interrogating COVID in early March of nineteen eighty five.
Speaker 3: And according to the police, in this false confession, this
Speaker 3: fact's coming out of color of pokabook, color of sneakies.
Speaker 3: I mean things that no normal person could ever remember.
Speaker 3: You know, last week? What did you have a breakfast
Speaker 3: last Monday? I mean, like every fact was known, even
Speaker 3: like the piece of jewelry that they recovered that she
Speaker 3: had been wearing. Right, he supposedly remembers the type of jewelry.
Speaker 3: And since it was all fictitious to begin with, right,
Speaker 3: every fact that they knew was incorporated into the false
Speaker 3: confession except one thing. The police didn't know the colored
Speaker 3: blouse or shirt that she was wearing on the night
Speaker 3: she disappeared. And that's the only thing that wasn't incorporated
Speaker 3: into this false confession. So, according to all of the experts,
Speaker 3: they considered as a classic false confession because no normal
Speaker 3: person would be able to actually remember all of these facts.
Speaker 3: There were just too many facts incorporated into this confession
Speaker 3: for it to be reliable.
Speaker 1: Okay, now we know that COVID confessed, but how did
Speaker 1: that lead to your case being brought to where it
Speaker 1: went and ultimately you being con and almost executed.
Speaker 3: The police they incorporate my name and Dennis's name into
Speaker 3: the false confession because in a way, the police had
Speaker 3: us labeled as suspects. I don't believe that we were
Speaker 3: labeled as targets. I personally believed that they were going
Speaker 3: to frame us one way to the other. Right, Dennis,
Speaker 3: I wouldn't have a clue. I wouldn't have a clue
Speaker 3: after COVID confessed falsely confessed. Now my family retained a
Speaker 3: private investigator. We're trying to figure out where I was
Speaker 3: on the night this younger lady disappeared. We figured out
Speaker 3: where I was through receipts because I had just purchased
Speaker 3: the house, and that weekend I was standing the floors.
Speaker 3: I was an ouse all night. That evening, I was
Speaker 3: on the phone with my girlfriend who was pregnant. We
Speaker 3: were putting pollutane on the floor, so she was pregnant.
Speaker 3: She couldn't be in an house. She was out of mother.
Speaker 3: So we had phone right kids, We had receipts, so
Speaker 3: we knew exactly where we were. Where I was right
Speaker 3: and Dennis was with his kids another town, and Kovid
Speaker 3: was at a birthday party in another town. We didn't
Speaker 3: even lay eyes on each other that whole weekend. And
Speaker 3: beyond that, the three of us were never together in
Speaker 3: that van as a threesome ever, and we all had
Speaker 3: independent alibis, And by the time we got the trial,
Speaker 3: they took my independent alibi witness because the guy who
Speaker 3: was helping me, he was a friend at the time.
Speaker 3: He was helping me stand the floors, right, he was
Speaker 3: at the house all night. The cops picked him up
Speaker 3: up the street. They bring him in for ten or
Speaker 3: twelve hours and they tell him that, well, if you
Speaker 3: don't tell us what we want to hear right, you're
Speaker 3: gonna end up in jail with them. So they've actually
Speaker 3: flipped my independent alibi witness from my witness to their witness.
Speaker 3: And he actually gave damage and testimony against me a trial,
Speaker 3: and at the civil trial during his testimony, the judge
Speaker 3: actually stopped the proceedings, had the jury removed and told
Speaker 3: him that you're on the borderline of being charged with
Speaker 3: perjury here because he had changed his testimony so many times, right,
Speaker 3: and when he testified at the criminal trial, he lied, right,
Speaker 3: but they wouldn't give us his original grand jury testimony.
Speaker 3: So it was always my opinion that his testimony was
Speaker 3: different from what he testified at the grand jury to
Speaker 3: what he testified two years later at the criminal trial,
Speaker 3: because during that time span, the cops put so much
Speaker 3: pressure on his dude and flipped them.
Speaker 1: Yeah, I mean, he was in an impossible situation. It
Speaker 1: doesn't excuse what he did.
Speaker 3: No, you're right. In a way, I felt bad for
Speaker 3: him because he was stuck in the middle of this, right,
Speaker 3: and he's under this tremendous amount of pressure by the police,
Speaker 3: and he's being told, well, if you don't tell us
Speaker 3: what we want to hear you're gonna end up in
Speaker 3: jail with him, and he sees innocent people in jail, right,
Speaker 3: and he sees how easy it was for the police
Speaker 3: to do that.
Speaker 2: Exactly.
Speaker 1: He knows what they're capable of because he already knows
Speaker 1: you're innocent, and he knows what they're doing, So there's
Speaker 1: no reason to not believe that they would do the.
Speaker 3: Same thing, right. And then we had the other problem
Speaker 3: with the police planting evidence in the van and the judge.
Speaker 3: That was a bench trial, so the judge concluded that
Speaker 3: the heads that they intimated that were found in my
Speaker 3: van were never in the band, right.
Speaker 1: And you know, let's talk about that because that is
Speaker 1: even by the standards of some of the crazy shit
Speaker 1: that we see in this line of work. That's going
Speaker 1: even beyond some of the misconducts.
Speaker 2: You know, this is so far. They were literally.
Speaker 1: Pulling hairs from the corpse and then taking those hairs
Speaker 1: and putting them in the van.
Speaker 2: Like who does a thing like that, Well.
Speaker 4: Who does it or police who are desperate to solve
Speaker 4: a crime that has the community absolutely terrified and up
Speaker 4: in arms. So what John talked about earlier about the
Speaker 4: flyers around town, I mean, this was the mid eighties,
Speaker 4: you know, bedroom community, suburban Long Island. The young woman
Speaker 4: who was killed in the case that John was falsely convicted,
Speaker 4: and her name is Teresa Fusco, was actually one of
Speaker 4: three young women that went missing around that time, and
Speaker 4: the other two to this day, those crimes have never
Speaker 4: been solved, and for all we know, it may have
Speaker 4: been the same killer or killers in those cases. But
Speaker 4: by the time Teresa disappeared, she was missing for what
Speaker 4: was it John three weeks week, about three weeks before
Speaker 4: her body was found. So the terror and the paranoia
Speaker 4: that they're feeling in this town is only heightening. And
Speaker 4: the parents, the elected officials, the teachers are saying, solve
Speaker 4: this crime, solve this crime. And after she was found naked,
Speaker 4: brutalized in the woods, just a horrible way to go,
Speaker 4: you know. The police spent months basically bringing in every
Speaker 4: working class guy between the ages of eighteen and twenty
Speaker 4: nine in town in and working them over, trying to
Speaker 4: see if they could find a weak spot until they
Speaker 4: get poor John Kogd who had had a really rough
Speaker 4: life grown up in foster care. Nobody to fight for him,
Speaker 4: and even he held out for hours and hours until
Speaker 4: he finally confessed, you know, and gave a false confession that,
Speaker 4: as John said, was a classic false confession and that
Speaker 4: it had no information that the police didn't already know,
Speaker 4: so he couldn't point them to clothing or jewelry or
Speaker 4: fruits of the crime or anything about her that wasn't
Speaker 4: part of the police's knowledge. But everything they did know
Speaker 4: almost too perfectly. But when it came to the hair.
Speaker 4: As part of what was wrong with this case when
Speaker 4: they decided they were going to pin it on John
Speaker 4: and his two friends, is that they had no physical evidence.
Speaker 4: There was no evidence against them, no DNA, no blood typing,
Speaker 4: nothing of hers that was ever found with them, no
Speaker 4: eyewitnesses as far as anybody knew at the time, who
Speaker 4: had seen what vehicles she'd gotten into, and she was
Speaker 4: leaving her job at a roller skating rink. And you know,
Speaker 4: we don't say lightly that police frame people. I mean
Speaker 4: a lot of times police will make bad mistakes, they
Speaker 4: will cut corners, they will interview witnesses in a way
Speaker 4: that's not ethical or permissible. But in this case, there
Speaker 4: is actual scientific evidence that John and his co defendants
Speaker 4: got fnamed, namely Detective Vulty, the lead homicide detective, claimed
Speaker 4: that he found several hairs when he finally got a
Speaker 4: search warrant for John's van when he used for his
Speaker 4: moving jobs. He claimed that he found several hairs that
Speaker 4: were long hairs, looked just like Teresa's and microscopically appeared
Speaker 4: to be the same as Teresa's hairs. We later did
Speaker 4: DNA and confirmed that they were in fact her hairs.
Speaker 3: So that would be pretty bad.
Speaker 4: Evidence, and normally you'd think, well, that makes John guilty.
Speaker 4: The problem was those hairs would have had to be
Speaker 4: deposited in the van during this period when John and
Speaker 4: his friends were alleged to have abducted her for just
Speaker 4: a few minutes. According to the confession, they had given
Speaker 4: her a ride and then raped her, and she was
Speaker 4: in the van for not longer, certainly no more than
Speaker 4: an hour, and then she was missing for several weeks.
Speaker 4: But the hairs came from a corpse. They had this
Speaker 4: decomposition at the roots of the hairs, called post mortem
Speaker 4: root banding, which basically happens when hairs are attached to
Speaker 4: a corpse that's decomposing, and so detective Vult he takes
Speaker 4: these hairs and whether he planted them in the van
Speaker 4: or just put them in an envelope marked hairs from
Speaker 4: van that was back at the lab, we don't know
Speaker 4: and doesn't really matter, but he lied under oath and
Speaker 4: said that these hairs came from the van, and it's
Speaker 4: physically impossible because she had been decomposing for several weeks
Speaker 4: when these when these hairs were collected, they were from
Speaker 4: her autopsy, not from the van.
Speaker 1: I do believe that most people that are doing those
Speaker 1: jobs are doing the best they can, and we need
Speaker 1: police to keep us safe. But when you get somebody
Speaker 1: like this volpee character who does the type of damage
Speaker 1: that he did, they have to be held to account.
Speaker 3: I mean, these detectives actually created a fictitious scenario after
Speaker 3: they actually watched what we think was the actual crime scene.
Speaker 3: And unbeknownst to us, the night she disappeared, a car
Speaker 3: within approximately a mile of where she was last seen
Speaker 3: was stolen, and when this car was recovered approximately a
Speaker 3: weak later, they found a pair of blue striped jeans
Speaker 3: with one of the legs inside out in the back,
Speaker 3: but the stuff underneath the see and on a missing
Speaker 3: persons report when she was last seen. That's what she
Speaker 3: was wearing blue stripe jeans. So the homicide cops grabbed
Speaker 3: this car, right, which was already cleaned by the owner,
Speaker 3: and the blue stripe jeans were thrown out by the
Speaker 3: Limberth Police department. So there was police reports regarding the
Speaker 3: stolen car and the blue striped jeans, right. And then
Speaker 3: there was a piece of rope missing from the car.
Speaker 3: And according to theme, right, there was a piece of
Speaker 3: rope similar used as what would you say, the murder weapon, right,
Speaker 3: and this was missing from the car. When they brought
Speaker 3: the owner back to the area where the car was recovered,
Speaker 3: they found the piece of rope. But they took a
Speaker 3: picture of the piece of rope. And one would think
Speaker 3: that given the significance of that this piece of rope
Speaker 3: would be taken into evidence and vouched, and the police
Speaker 3: say it never was. So this is information that should
Speaker 3: have been turned over to the defense, and it never was.
Speaker 3: And we never found out about this information till we
Speaker 3: were in the civil litigation.
Speaker 2: Stage twenty something years later.
Speaker 4: Correct, I was John's innocence project lawyer. We didn't know
Speaker 4: about this information.
Speaker 1: You know.
Speaker 4: A lot of times, as you know, and a lot
Speaker 4: of your guests have talked about there's evidence pointing to
Speaker 4: someone's innocence, and you know, certainly in this case, this
Speaker 4: is evidence about where the crime occurred and what type
Speaker 4: of vehicle was used, which is a huge objective lead.
Speaker 4: That's different than the entire case that was against John
Speaker 4: and his co defendants, but that is evidence. Often we
Speaker 4: learn about that when we're in post conviction, meaning the
Speaker 4: person's been convicted and we're litigating their appeals and we're
Speaker 4: trying to exonerate them. In John's case, as I'll tell you,
Speaker 4: we cleared him with DNA and other evidence that we
Speaker 4: gathered as part of the Innocence Project and Centurion Ministry's
Speaker 4: investigation of the case. But we didn't even know about
Speaker 4: this other evidence the police had of his innocence until
Speaker 4: after he was exonerated. It only came out when he
Speaker 4: had lawyers representing him in his lawsuit against the police
Speaker 4: department in the county that this all came to light.
Speaker 4: So it's a really stunning fact that you can have
Speaker 4: evidence of innocence that's hidden, possibly even from the DA's
Speaker 4: because it was in the police file, and only come
Speaker 4: out after someone's exonerated. And so his case is a
Speaker 4: DNA exoneration case, but as with so many, there's other
Speaker 4: evidence that could have cleared him even before he went
Speaker 4: to trial.
Speaker 1: As the son of a police officer, this must have
Speaker 1: been totally surreal to you because as much as we
Speaker 1: all grew up and when I was a son, I
Speaker 1: had the ideas that I would become a policeman, right.
Speaker 1: I mean, you know, we all look up to firemen
Speaker 1: and cops. I think most boys do, especially growing up
Speaker 1: right in the year that we grew up in. But
Speaker 1: for you, it was a very personal thing, right. You
Speaker 1: must have been very proud to have a dad who
Speaker 1: was a cop. I would think, right, right, I mean
Speaker 1: I would be. But then at the same time I
Speaker 1: would expect that you must have thought that, because of
Speaker 1: the fact that your dad was in blue, that this
Speaker 1: wouldn't happen to you, right, And was your dad around?
Speaker 2: Was he alive at this time?
Speaker 3: My father passed away in January of eighty four, so
Speaker 3: he wasn't around. But my father said something to me
Speaker 3: at one time while he was on the job, and
Speaker 3: he told me, if you ever have a problem with
Speaker 3: a top, call oil. And when the police brought me
Speaker 3: in and interrogated me for twenty plus hours. Once I
Speaker 3: was released, I immediately called al.
Speaker 2: Why didn't you call oil?
Speaker 3: At first, they wouldn't let me leave, they took my
Speaker 3: clock keys, they would let me hold the lawyer. You
Speaker 3: know I was there. I mean, they weren't letting me
Speaker 3: go anywhere. And finally they let me go, and after
Speaker 3: twenty hours, I was so out of it. They wouldn't
Speaker 3: even let me drive home. They drove me home and
Speaker 3: drove my car.
Speaker 2: There's so many things wrong with this that I'm just like, no.
Speaker 3: This is a complicated case. There's no doubt about it,
Speaker 3: and I'm just glad it's over it. But what the
Speaker 3: cops did to me, right, it's unfortunate that they can
Speaker 3: do to whoever they please. I mean, they could, they
Speaker 3: could pick somebody out of a group, right and make
Speaker 3: them a target, and then they fabricate a case around them,
Speaker 3: and that's exactly what they did to us. But from
Speaker 3: day one, I requested DNA testing, and back in the
Speaker 3: eighties mid eighties, there was no DNA testing, And back
Speaker 3: in ninety three, ninety four, ninety five, we had three
Speaker 3: different DNA tis done. One was inclusive to to well,
Speaker 3: the ones excluded us, and back in ninety five. I
Speaker 3: thought we were going to get cut loose. I thought
Speaker 3: that was going to be the end of the gospel.
Speaker 3: That wasn't the case. The judge should have been one
Speaker 3: of the.
Speaker 4: First DNA gulannomies in the country because he was going
Speaker 4: in pro se and he had a lawyer who was
Speaker 4: helping him out for some of that time, you know,
Speaker 4: early on, and he's incredibly smart, and he was researching
Speaker 4: and filing his own emotions. He had a DNA test
Speaker 4: from sperm from a sixteen year old girl who was
Speaker 4: a virgin that didn't come back to him or Dennis
Speaker 4: or John Cogit, and the DAS said, eh, doesn't matter.
Speaker 4: Could have been a fourth guy, right, fourth guy. There's
Speaker 4: a third guy. There's a second guy.
Speaker 1: There was one guy.
Speaker 4: It was his firm, and it wasn't any of these guys.
Speaker 4: And he goes to court and the judges back then
Speaker 4: weren't as educated as they are now about DNA and
Speaker 4: what it shows, and you know, he had different lawyers
Speaker 4: and they said, sorry, I'm giving you a new trial.
Speaker 4: And so there he was, you know, in the mid nineties,
Speaker 4: starting at square one.
Speaker 2: Again.
Speaker 1: Let's just reflect on that for a second too, So
Speaker 1: you proved with DNA that you were innocent, and they're like, yeah,
Speaker 1: that's right, doesn't matter. I think probably everyone at home
Speaker 1: is experiencing the same or in your car or wherever
Speaker 1: you're listening, the same thing that I'm experiencing, which is
Speaker 1: that wait a minute, that sounds like a misprint or
Speaker 1: a misstatement.
Speaker 2: That can't really be true.
Speaker 3: The prosecutor is actually lying in their papers about the
Speaker 3: reliability of the tests. They insinuated that the test results
Speaker 3: were not reliable, which is ludicrous because there's two independent
Speaker 3: tests done by two independent labs, and they identify the
Speaker 3: same exact DNA profile. So if one lab made a mistake,
Speaker 3: how could the other lab, independent lab make the same
Speaker 3: mistake and identify the exact same DNA profile. So when
Speaker 3: they argued in air papers that the tests weren't reliable,
Speaker 3: I mean, that was totally ludicrous, and the judge adopted
Speaker 3: all it is insanity.
Speaker 4: And then, if I remember correctly, after they realized they
Speaker 4: weren't getting anywhere for a while, the judge was getting
Speaker 4: skeptical of the reliability argument. Then they said, well, the
Speaker 4: only thing that was tested for this last round was
Speaker 4: off of a vaginal slide, which is a glass slide
Speaker 4: that the medical examiner or autopsy makes from the cotton
Speaker 4: swab that was actually had most of the sperm and
Speaker 4: the semen on it, and it was just the one
Speaker 4: part of the slide. So maybe these three guys who
Speaker 4: we convicted, maybe their DNA was on the rest of
Speaker 4: the slide or on the swabs, and we just don't
Speaker 4: have enough material. So you had to believe two things.
Speaker 4: One that the test was missing all of their DNA,
Speaker 4: but also that they had some crime partner this mystery.
Speaker 4: John Doe, who was the fourth guy whose name didn't
Speaker 4: come up in the confession, didn't come up from any
Speaker 4: of the informants, didn't come up from any of the witnesses,
Speaker 4: you know who. Everybody had been covering up for this
Speaker 4: last ten years, which was absurd, but the courts bought it,
Speaker 4: and so then they basically gave John a challenge, which
Speaker 4: was prove us wrong, prove to us that your DNA
Speaker 4: is not really there, And then we.
Speaker 3: Did that right in two thousand and one, there was
Speaker 3: a small portion of sample left and they retested it
Speaker 3: using new methodology where they would be able to run
Speaker 3: that result through the federal and state databases, you know,
Speaker 3: through CODIS. Right, and again when they tested that it
Speaker 3: comes back matching the same DNA profile that came back
Speaker 3: in the nineties.
Speaker 2: Amazing.
Speaker 3: Yeah, And they ran it through CODIS, hoping that they
Speaker 3: would get a hit, right, And since they didn't get
Speaker 3: a hit, they're still maintaining that it's not reliable. Then
Speaker 3: in two thousand and two I met Nina Morrison and
Speaker 3: IP took on more involvement in the case, right, and
Speaker 3: got us all in de pendant lawyers. Right, they got
Speaker 3: lawyers for Dennis, they got lawyers for John And in
Speaker 3: early two thousand and three, Nina and a couple of
Speaker 3: the lawyers went to inventory evidence that the police had
Speaker 3: and lo and behold.
Speaker 4: For photos and maps. We were looking for some old
Speaker 4: photos related to another part of our investigation, and they
Speaker 4: wouldn't just send us the photos. So we said, fine,
Speaker 4: can we come look through the boxes? So we were
Speaker 4: out there with an assistant DA who was new to
Speaker 4: the office, relatively new, and she said, yeah, let's just
Speaker 4: go look through the boxes. Go ahead.
Speaker 3: So Nina and the other lawyers they opened up the
Speaker 3: boxes and they're going through the boxes and all behold,
Speaker 3: they found a plastic envelope with a glass tube in
Speaker 3: it and a swab in it, and it has the
Speaker 3: case number and Teresa fuss Goo's name on it and
Speaker 3: it's vouched by Volpi. And after they insinuated, all the
Speaker 3: mea is that there's no samples left to be tested.
Speaker 3: It was right there in the box, you know, in
Speaker 3: the DA's officer or in the police head quotas wherever
Speaker 3: they were, and Nina scene is and the DA scene is,
Speaker 3: and then now they had to collaborate. Okay, now where
Speaker 3: are we going to send this to have it tested?
Speaker 3: And they sent it out to have it tested. And
Speaker 3: this is a sample that was never touched, so it's
Speaker 3: in pristine condition and alone.
Speaker 4: If anybody had you know, raped her, that DNA is
Speaker 4: going to be on there. So they had said for years,
Speaker 4: well the other guys, you know, John and his co defendants,
Speaker 4: their DNA was there. We just burned all the samples
Speaker 4: so we can't protest it now. And then suddenly we
Speaker 4: had this big intact swab that everybody said was gone
Speaker 4: for fifteen years that was finally available, and not surprising
Speaker 4: to any of us, we tested it and guess what,
Speaker 4: it's the same guy whose profile has been coming up
Speaker 4: again and again, but this time because it was such
Speaker 4: a big sample, the DA's office finally, you know that,
Speaker 4: plus a whole lot of other evidence we gathered, we
Speaker 4: went out and made a presentation to them, a whole
Speaker 4: coalition of people that really did take a village. It
Speaker 4: was my very first innocence project case. I was a
Speaker 4: young lawyer, very motivated, shall we say, and still am,
Speaker 4: but you know, I was very invested in this one,
Speaker 4: and a whole bunch of us enturian ministries, the Unison's project,
Speaker 4: to Delmarnard, and then my old law school classmate Terry Maroney,
Speaker 4: who was a lawyer at a big firm. We all
Speaker 4: did this big presentation with Barry Scheck together and got
Speaker 4: them to finally agree. They actually caved in and agreed
Speaker 4: we didn't have to go to court. They agreed to
Speaker 4: throw out their convictions.
Speaker 1: You had a kind of a bright future at the time.
Speaker 2: Right, you had a pregnant girlfriend. Right, you had a
Speaker 2: good job.
Speaker 1: Right, you had a career that was growing, and all
Speaker 1: of a sudden you're accused and ultimately convicted of the
Speaker 1: worst crime that anyone could be convicted of. Right, I think,
Speaker 1: which is the rape and murder of an underage person,
Speaker 1: child and a teenager or whatever.
Speaker 2: How did you deal with this?
Speaker 1: And then you had to go through this eighteen years
Speaker 1: in the maximum security I mean, can you kick us
Speaker 1: through that?
Speaker 3: In the beginning, I turned my life upside down and
Speaker 3: turned my family's life upside down. But that being said,
Speaker 3: my family always supported me. Right, my original trial lawyer
Speaker 3: always supported me, and everybody always believed in my innocence.
Speaker 3: And I had the one thing going for me that
Speaker 3: I knew that not only was I innocent, that I
Speaker 3: was framed because I watched the evidence come out during
Speaker 3: the course of the trial. Right, so I knew that
Speaker 3: I was framed. Now it was up to me to
Speaker 3: prove all it is. So I ended up in the penitentiary,
Speaker 3: and I started going to the law library, and I
Speaker 3: started teaching myself how to use the books. I taught
Speaker 3: myself how to become a legal writer. I don't want
Speaker 3: to say illegal scholar, but I became a legal writer.
Speaker 3: And I I started writing and writing, and I started
Speaker 3: writing lettus to all kinds of organizations or individuals seeking help.
Speaker 3: And I wrote Century Ministries in nineteen eighty seven and
Speaker 3: started corresponding with them, and then I started corresponding with
Speaker 3: the Innocence Project, and you know, there was a lot
Speaker 3: of setbacks, you know, like because originally, when we extract
Speaker 3: the DNA testing, the dis Returnings Office refused to do it.
Speaker 3: This is no way we're not going to do that.
Speaker 3: And this was in the late eighties because DNA was
Speaker 3: first used in a criminal case. I think it was
Speaker 3: nineteen eighty eight or nineteen eighty nine, something like that,
Speaker 3: and I think it was an Oldding County case. And
Speaker 3: so I wrote my lawyer, I mean, if they're going
Speaker 3: to use this to convict somebody, why can't we use
Speaker 3: this to exonerate us? Right? And I got letters signed
Speaker 3: by John by Dennis agreeing to have this DNA test done.
Speaker 3: My lawyer correct, right, because I'm not doing this just
Speaker 3: for me. I mean, this is a frame job, it's
Speaker 3: not like so we all agree, and my lawyer filed
Speaker 3: the motion. The judge denied it, and then my lawyer
Speaker 3: went on his own writing campaign to the DA and finally,
Speaker 3: on the eve of when New York State legislature was
Speaker 3: getting ready to sign the post Conviction Statute for forty
Speaker 3: to allow DNA testing, the prosecutors or the DA's office
Speaker 3: finally agreed to do the DNA testing, and that's why
Speaker 3: the DNA testing occurred in ninety three, ninety four U
Speaker 3: five or otherwise, if that legislation wasn't going to be
Speaker 3: on the books, they would probably continue to refuse it,
Speaker 3: even though you know, people at that point were being
Speaker 3: exonerated because the results of the DNA tests. These people
Speaker 3: fought tooth and nail against this DNA tests, and then
Speaker 3: when we finally got the DNA test going, the judge
Speaker 3: finds it unreliable, like you mentioned before. But you know,
Speaker 3: I always had this hope, right and then you know,
Speaker 3: things started falling together with more people get involved, and
Speaker 3: the more people that got involved were more confident. I
Speaker 3: felt that I was gonna one day be vindicated.
Speaker 1: But let me ask you, I mean, I guess what
Speaker 1: I'm trying to figure out is it seems like it
Speaker 1: would have been.
Speaker 2: Really easy for you to either give.
Speaker 1: Up or get consumed by anger, because this was not
Speaker 1: a situation where it was a mistake. This was a
Speaker 1: situation where you were deliberately prosecuted and persecuted by people
Speaker 1: who did you incredible harm and also deny justice to
Speaker 1: the family who must have been fucking devastated. I mean, like,
Speaker 1: as a father, I can't imagine you know what they
Speaker 1: went through, and then there's no justice for them either.
Speaker 2: So is there a secret that you could share.
Speaker 1: That allowed you to sort of find this extra gear
Speaker 1: and instead of banging your head against the wall or
Speaker 1: doing whatever you channel This seems.
Speaker 3: Like this is this is gonna sound strange, but I
Speaker 3: still use this line today. It could be worse. Right,
Speaker 3: And I was facing a level of adversity that the
Speaker 3: average person could never understand. Well, I was inside. I
Speaker 3: read a lot, but I didn't read you know, novels.
Speaker 3: I read a lot of nonfiction. I read a lot
Speaker 3: about World War Two. I read a lot about POW's.
Speaker 3: So I'm putting in my brain like, okay, me doing
Speaker 3: his life sentence for somebody I didn't do. How does
Speaker 3: that compare to an eighteen year old kid that is
Speaker 3: pushed onto the beach in Normandy and you know, lives
Speaker 3: for five minutes and he's gone, right, or a Pow
Speaker 3: in the Philippines that is being tortured every day. So
Speaker 3: I'm putting my adversity in and kind of perspective of
Speaker 3: you know adversity that other people in worse situations that
Speaker 3: I was in. Right, at least I was getting three
Speaker 3: meals a day. I wasn't being physically taught you, nobody
Speaker 3: was pulling my fingernails out. I put it all in
Speaker 3: a perspective of you know, a peow in the Philippines
Speaker 3: or a pow in Vietnam, and I got it in
Speaker 3: my brain. Well, at the end of the day, I
Speaker 3: don't belong here, but it could be worse.
Speaker 4: John's too modest to talk about this, but I'm going
Speaker 4: to say he also spent a lot of time when
Speaker 4: he was in prison trying to make it a less
Speaker 4: horrible place for other people, and also helping people on
Speaker 4: the outside. So among the many things he did, like
Speaker 4: when I first talked to his prison counselor, she just
Speaker 4: blew up my phone with oh my god, John, He's
Speaker 4: just incredible. I want him to go home, but what
Speaker 4: are we going to do without him? He was an
Speaker 4: HIV AIDS counselor for other inmates, either on how to
Speaker 4: avoid contracting the disease or helping him deal with their diagnoses,
Speaker 4: even though he was a straight man who was HIV
Speaker 4: negative at a time in the eighties and nineties when
Speaker 4: people were scared to talk about AIDS, much less work
Speaker 4: directly with people who were affected. He'd worked with mentally
Speaker 4: ill and mad, to the guys that everybody thought was
Speaker 4: crazy and were prized at the prison, and he was
Speaker 4: just trying to help them get the medication they needed
Speaker 4: and the support they needed. And then people on the outside,
Speaker 4: I know people who John was like their phone buddy,
Speaker 4: you know, family friends and young nieces and nephews who
Speaker 4: he would just call once a week and like talk
Speaker 4: them through their problems in school, their issues with their families.
Speaker 4: You know, all the while he's facing the most unimaginable
Speaker 4: thing any of us think we could go through, and
Speaker 4: that's just a testament to who he is and how.
Speaker 3: Strong he is.
Speaker 1: I'm glad you said that, because that is an awesome
Speaker 1: thing to hear from me. I'm sure many other people
Speaker 1: who are going through whatever they're going through to hear
Speaker 1: your perspective on that. And here then, Nina, you know,
Speaker 1: adding in what you were too modest or humble to
Speaker 1: talk about, it's incredible. And I got to tell you, John,
Speaker 1: and you know it's true too, that I think I
Speaker 1: can speak for Nina and almost any of the other
Speaker 1: six hundred of us who are here at the Innocence
Speaker 1: Network conference who are part of the network, right the
Speaker 1: activist lawyers, the social workers, the people who are just
Speaker 1: obsessed with this stuff, like me. And the simple reason
Speaker 1: why is because of people like you. When someone's made
Speaker 1: aware of the quality of person that you are, and
Speaker 1: that I would say the overwhelming majority of the people,
Speaker 1: the men and women who've been exonerated, what they're made
Speaker 1: out of, it's like it only inspires us to want
Speaker 1: to do more. And that's why for anyone who's ever
Speaker 1: asked me, you know why you keep doing this, it's
Speaker 1: because of people like you.
Speaker 2: So you know, what can I say? You have all
Speaker 2: my respect?
Speaker 3: Well, I look at it from the other perspective because
Speaker 3: and I appreciate where you're coming from. But to me,
Speaker 3: people in en isshoes, they're my hero. People in your shoes,
Speaker 3: what you do for the movement, you're my hero. And
Speaker 3: everybody who supports this movement, they're my hero. Right Because
Speaker 3: if it wasn't for people like Nina and people like you, right,
Speaker 3: I probably still being at sixty eight.
Speaker 2: John.
Speaker 1: I just want to ask you one more question, though,
Speaker 1: and then I am going to get to the closing.
Speaker 1: So I interviewed Gloria Kelly on on the podcast and
Speaker 1: she said she's an amazing, amazing woman, very powerful presence,
Speaker 1: and wrongfully convicted started seventeen and a half years. I
Speaker 1: encourage people to listen to her episode of the podcast.
Speaker 1: But she said something that I think is important to hear,
Speaker 1: and I want to get your perspective on that. She
Speaker 1: said to anyone listening, if you don't think this can
Speaker 1: happen to you, it can happen to you.
Speaker 2: Would you agree with that most definitely?
Speaker 3: And you could be walking down the street one day,
Speaker 3: just mining your business and get surrounded by cops and
Speaker 3: before you know it, you're thrown into the system and
Speaker 3: you don't have a clue to what's going on until
Speaker 3: all of a sudden you're brought in front of a
Speaker 3: judge and you're being charged with whatever, and you're totally
Speaker 3: clueless as to what happened. And a lot of these
Speaker 3: wrongful conviction cases, that's exactly what occurred. I mean, because
Speaker 3: if so many things that this can't happen to them,
Speaker 3: that's totally wrong, because being wilfully convicted can happen to anybody, anybody,
Speaker 3: and it doesn't have anything to do with race, gender, anything.
Speaker 3: And I wouldn't wish this on my worst enemy to
Speaker 3: have to go through something like this, because no matter
Speaker 3: what you do, after you're exonerated, you carry it for
Speaker 3: the rest of your life. I mean, it doesn't go away.
Speaker 1: Well, yeah, you can't get back those years and all
Speaker 1: the things that you missed, the birthdays, the family stuff,
Speaker 1: just everything.
Speaker 2: I mean, nobody can give you those back. If we could,
Speaker 2: we would.
Speaker 1: But that being said, it's amazing to see you making
Speaker 1: the most out of it. And you're in Florida. You're
Speaker 1: enjoying some sun and some palm trees or whatever it
Speaker 1: is down there, and I'm really glad that things are
Speaker 1: going your way. And now comes my favorite part of
Speaker 1: the show, which is the part of the show where
Speaker 1: I first of all, thank both of you, Nina Morrison
Speaker 1: and John Restivo for joining me sharing your thoughts on
Speaker 1: Wontful Conviction.
Speaker 2: So thank you both for being here.
Speaker 1: And now I get to sit back and listen and
Speaker 1: just leave the microphones on for final thoughts. And I'm
Speaker 1: going to let Nina go first because it would be
Speaker 1: appropriate for you to close the show so you're batting
Speaker 1: clean up, so to speak.
Speaker 2: So anyway, So, Nina, well, all I.
Speaker 4: Want to say is, you know, your listeners have gotten
Speaker 4: a favor for who John is and what he's gone through.
Speaker 4: But one of the things that's really special about John
Speaker 4: is what he's done after he's been out and how
Speaker 4: much he's done. He's done a lot to help get
Speaker 4: people registered to vote in Florida, to feed the homeless,
Speaker 4: to make his community better. And his personal journey is
Speaker 4: told in this beautiful, Beautiful future story in the New
Speaker 4: Yorker magazine by a writer named Ariel Levy, And if
Speaker 4: people google John's name and the title, I think is
Speaker 4: the Price of a life, And it's all about the
Speaker 4: deep pain and suffering that he went through. If your
Speaker 4: listeners are interested in the human toll that wrongful convictions take.
Speaker 4: Ariel told his story in a very revealing and intimate way,
Speaker 4: and I hope folks will check it out.
Speaker 2: Joh It.
Speaker 3: I just take it one day at a time. I
Speaker 3: wake up in the morning and I just say to myself,
Speaker 3: no day in paradise. I'm just glad to be free.
Speaker 3: And if I can do something to help my community,
Speaker 3: or if I feel or if I see something that
Speaker 3: needs to be done, I try to help. And I
Speaker 3: was involved in two thousand and eight in this huge
Speaker 3: voter registration thing that we had going in Florida, and
Speaker 3: we just got passed. We got an amendment past where
Speaker 3: felons are going to be allowed to vote. So now
Speaker 3: we're going to have to start getting felons registered to
Speaker 3: vote for our upcoming election. And when I'm asked, I
Speaker 3: have a group of friends, and when I'm asked to help,
Speaker 3: I'm more than happy to help. And I want to
Speaker 3: thank you for having us here.
Speaker 1: All I can say is thank you both again, and
Speaker 1: thank you all for listening. And I'll see you next
Speaker 1: week on Wraeful Conviction. Don't forget to give us a
Speaker 1: fantastic review wherever you get your podcasts.
Speaker 2: It really helps.
Speaker 1: And I'm a proud donor to the Innocence Project and
Speaker 1: I really hope you'll join me in supporting this very
Speaker 1: important cause and helping to prevent future wrongful convictions. Go
Speaker 1: to Innocence Project dot or org to learn how to
Speaker 1: donate and get involved. I'd like to thank our production team,
Speaker 1: Connor Hall and Kevin Wartis. The music in the show
Speaker 1: is by three Time Oscar nominated composer Jay Ralph.
Speaker 2: Be sure to.
Speaker 1: Follow us on Instagram at Wrongful Conviction and on Facebook
Speaker 1: at Wrongful Conviction podcast. Wrongful Conviction with Jason Flahm is
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