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Throwing out a videotaped confession, a Nassau County, N.Y. judge Wednesday acquitted a Long Island man in the 1984 rape and murder of a Lynbrook teen. First convicted in 1986, defendant John Kogut, now 43, had won a new trial in 2003 after DNA analysis of semen taken from the dead girl’s body proved that the semen was not his. The samples also did not match two other men alleged to have been Kogut’s accomplices. Without the sophisticated DNA analysis, which was not yet developed at the time of the first trial, prosecutors won a conviction based largely on the strength of a 15-minute videotaped confession by Kogut after more than 13 hours in custody. Delivering his ruling after a four- month bench trial, acting Supreme Court Justice Victor M. Ort said the confession, taken by then-Assistant District Attorney George Peck, varied too much from actual facts to be truthful. Peck is now a County Court judge. Ort read his decision before a crowded courtroom packed with members of the victim’s family and friends, prosecutors and police. A small cadre of Kogut’s supporters let out audible sighs of relief, while the defendant stood up and threw his arms around his attorney, Paul Casteleiro of Hoboken, N.J. Outside the courtroom, there were tears and recriminations from the murder victim’s family. The victim, Theresa Fusco, 16, disappeared as she walked home from her job at a local roller rink on a November night in 1984. Her partially decomposed body was found in a nearby cemetery 25 days later. Authorities picked up Kogut four months later for questioning about another crime and held him in custody from 6:30 p.m. until 9 a.m. Police began questioning him about Fusco’s murder and, when some of his answers heightened their suspicions, continued to chip away at his story. In his summation, prosecutor Robert Biancavilla said Kogut told five different versions of the story before tripping himself up and admitting to the crime. Biancavilla insisted that Kogut recited facts that only the killer would have known. In a tape shown during the summation, Kogut described how his companions, John Restivo and Dennis Halstead, recognized Fusco on the street, invited her to smoke marijuana with them and, when she declined, offered to drive her home in their van. Once inside, Kogut said at the time, he struck the girl in the face before the other two men took turns raping her. Kogut added that once the girl sobbed, “I gotta tell,” he and his companions all agreed “she had to die.” Kogut confessed in the video that he strangled Fusco with a nylon rope before the others dumped her body. Despite that video, Casteleiro hammered at the prosecution’s theories during his two-hour summation. Returning again to the lack of DNA evidence, which had forced Biancavilla to posit that Fusco must have had consensual sex earlier in the day with an unknown man, Casteleiro called the case against his client “outrageous.” He insisted that the district attorney’s office had omitted inconvenient facts and resorted to speculation to account for gaps in its theory. That speculation, he said, meant there was reasonable doubt of his client’s guilt. Casteleiro repeatedly came back to the videotaped confession, calling it a “television production,” achieved only after repeatedly going over the events of that night with Kogut. FALSE CONFESSION EXPERT In a September pretrial ruling, Ort decided to admit testimony from a false confessions expert, Saul Kassin, a professor of psychology at Williams College in Williamstown, Mass. Earlier this month, Kassin said in an interview that videotaped confessions can be unreliable because a finder of fact has no way of knowing what happened off-camera. “There is too much about the process by which they’re taken, which is just unknown,” he said. The absence of context, he said, was tantamount to “asking a coroner to determine a cause of death without seeing the body.” Nonetheless, he added, such confessions are routinely believed by judges and juries. Unless the entire process is videotaped, a trier of fact cannot know if it was voluntary, Kassin said. From the stand, Kassin told the court that 25 percent of DNA exonerations come in false confession cases, and that they are most common in murder cases. He also said the goal of a long, custodial interrogation like that of Kogut was to isolate a suspect and question him repeatedly until he admits guilt. Once that admission is made, Kassin said the next step is to reduce that admission to a confession. Biancavilla said, however, that criminals never come into a police precinct and announce their guilt and that confessions are only obtained through interrogation. Ort, however, felt differently. One of Restivo’s attorneys, Harry H. Kutner Jr. of Mineola, was in the courtroom when the decision was read. He said afterward that he did not see how the prosecution could now go now forward with cases against his client or Halstead. This will be Biancavilla’s last trial for the District Attorney’s Office. Earlier this month, District Attorney-elect Kathleen M. Rice told him he will not be retained. After the trial, Theresa Fusco’s father, Thomas, said he still believes Kogut is guilty. Outside the courthouse, Kogut described his newfound freedom as “beautiful.”

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