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John Kogut v. the County of Nassau

August 15, 2012

JOHN KOGUT, PLAINTIFF,
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.
JOHN RESTIVO, DENNIS HALSTEAD, MELISSA LULLO, JASON HALSTEAD, HEATHER HALSTEAD, AND TAYLOR HALSTEAD, PLAINTIFFS,
v.
NASSAU COUNTY, CAROLANN HESSMAN, AS EXECUTRIX FOR THE ESTATE OF JOSEPH VOLPE, IN HIS INDIVIDUAL CAPACITY, ROBERT DEMPSEY, IN HIS INDIVIDUAL CAPACITY, FRANK SIRIANNI, IN HIS INDIVIDUAL CAPACITY, MILTON GRUBER, IN HIS INDIVIDUAL CAPACITY, HARRY WALTMAN IN HIS INDIVIDUAL CAPACITY, ALBERT MARTINO, IN HIS INDIVIDUAL CAPACITY, CHARLIE FRAAS, IN HIS INDIVIDUAL CAPACITY, THOMAS ALLEN IN HIS INDIVIDUAL CAPACITY, RICHARD BRUSA, IN HIS INDIVIDUAL CAPACITY, VINCENT DONNELLY,
IN HIS INDIVIDUAL CAPACITY, MICHAEL CONNAUGHTON, IN HIS INDIVIDUAL CAPACITY, WAYNE BIRDSALL, IN HIS INDIVIDUAL CAPACITY, WILLIAM DIEHL, IN HIS INDIVIDUAL CAPACITY, JACK SHARKEY, IN HIS INDIVIDUAL CAPACITY, DANIEL PERRINO, IN HIS INDIVIDUAL CAPACITY, ANTHONY KOZIER, IN HIS INDIVIDUAL CAPACITY, DETECTIVE SERGEANT CAMPBELL, (SHIELD #48), IN HIS INDIVIDUAL CAPACITY, SEAN SPILLANE, IN HIS INDIVIDUAL CAPACITY, RICHARD ROE SUPERVISORS #1-10, IN THEIR INDIVIDUAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge:

MEMORANDUM & ORDER

This Memorandum and Order addresses only Defendants' motion to exclude Plaintiffs' hair experts and Plaintiffs' motion to exclude Defendants' statistician. For the reasons that follow, Defendants' motion (Docket Entry 205) is DENIED except to the extent discussed below, and Plaintiffs' motion (Docket Entry 204) is GRANTED.

BACKGROUND

These Daubert motions principally concern the phenomenon that the Court will refer to as "post-mortem root banding" ("PMRB"). The Court will discuss PMRB and its relevance in detail, but it first turns to the crime and prosecution underlying this wrongful conviction case.

I. The Fusco Homicide

On November 10, 1984, Theresa Fusco disappeared after

leaving work at approximately 9:50 p.m. Her nude body was discovered five weeks later in a wooded area on Long Island, New York. In 1986, Plaintiffs John Restivo, Dennis Halstead, and John Kogut were tried and convicted of Fusco's rape and murder. (See generally Pls. Opp. 2.)*fn2

The only forensic evidence linking Restivo, Halstead, or Kogut to the Fusco Homicide at their 1986 criminal trials were two "questioned" hairs (the "Q8 hairs") that Nassau County Police Department ("NCPD") investigators purportedly recovered during a search of Restivo's blue van on March 26, 1985, almost five months after the murder. An NCPD analyst, Detective Charles Fraas, testified that the Q8 hairs were consistent with "known" hairs that were collected during Fusco's autopsy. (See generally Pls. Opp. 2.) 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. All three hair experts at that trial--Fraas and hair microscopist Nicholas Petraco for the prosecution and Peter De Forest for the defense--testified that they observed PMRB in the Q8 hairs.

DNA testing eventually excluded Restivo, Halstead, and Kogut as the source of the semen that was collected from Fusco's body, and all three men had their 1986 convictions vacated. Plaintiff Kogut was re-tried in 2005. At the re-trial, prosecutors offered DNA evidence matching the Q8 hairs and a third hair also ostensibly collected from Restivo's van (the "Q4 hair" and, together with the Q8 hairs, the "Q hairs") with known hairs collected during the autopsy. After considering evidence related to PMRB, Judge Victor M. Ort was persuaded that the Q hairs were not actually left in Restivo's van on the night that Fusco disappeared. (See generally Pls. Opp. 3.) Judge Ort acquitted Kogut, and the indictments against Restivo and Halstead were soon dismissed. Plaintiffs brought this wrongful conviction case shortly thereafter. (See generally Pls. Opp. 3-4.)

II. Post-Mortem Root Banding

Plaintiffs contend that PMRB evidence demonstrates that the Q hairs were in fact autopsy hairs that were planted among, or mistakenly mixed with, trace evidence collected from Restivo's van. Plaintiffs' PMRB experts--Max Houck, Nicholas Petraco (who testified for the prosecution at Halstead and Restivo's 1986 trial), and Peter De Forest--propose to testify that PMRB is the emergence of opaque, ellipsoidal bands at the roots of hairs that have been removed from bodies that have been decomposing for at least several days. In Plaintiffs' Experts'*fn3 opinion, PMRB only develops while hairs are still attached to a decomposing body, and the banding takes several days after death to appear. This means, then, that if the Q hairs show PMRB, then they could not have come from Ms. Fusco during the short time she was alleged to have been in the van on the night she died. A more likely explanation, from Plaintiffs' perspective, is that the Q hairs were taken from the autopsy table and placed with the trace evidence collected from the van.

In June, the Court held a Daubert hearing to determine whether and to what extent Plaintiffs' Experts and Defendants' statistician, Joseph Kadane, will be permitted to testify at trial. See generally Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). The following is a summary of the proposed experts' qualifications and opinions. Other relevant evidence, either adduced at the hearing or submitted with the parties' motions, is addressed as appropriate in the discussion section.

A. Max Houck

Houck is a forensic anthropologist and trace evidence analyst. (Pls. Ex. 1, Houck Expert Report ("Houck Rpt.") at 1*fn4 .) Among Houck's professional and educational achievements are Bachelor's and Master's degrees in anthropology and a Ph.D. in applied chemistry. (Id.) From 1992 to 2001, he was a physical scientist in the FBI's Laboratory Division, where he was assigned to the trace evidence unit. Later, he became the director of the Forensic Science Initiative (Research) at the University of West Virginia. He held this post until 2011. (Id.) At one point during his career, Houck chaired the Scientific Working Group on Materials Analysis ("SWGMAT"), which is a professional organization whose mission is to develop consensus guidelines for best practices in the forensic sciences field. (Daubert Hearing Transcript ("Hrg. Tr.") 24-25.) SWGMAT has a sub-committee dedicated to hair and fiber analysis. (Id.)

In his expert report, Houck explains that PMRB is an artifact of decomposition:

In decomposition, hairs that were actively growing . . . until the time of death go through changes in their root ends related to the decomposition of the surrounding skin and follicle. One of the phenomena observed in these former anagen or early catagen hairs [i.e., hairs in the active growing stage] is called "putrid root" or "post-mortem root banding." (Houck Rpt. 6.) He defines PMRB as "an opaque ellipsoidal band which appears to be composed of a collection of parallel elongated air spaces near the root of a hair, appearing as a dark or blackened band in the hair shaft." (Id. (internal quotations omitted).) This definition is derived from the seminal article on PMRB, "The Morphology and Evidential Significance of Human Hair Roots," which was authored by Plaintiffs' other two PMRB witnesses, Nicholas Petraco and Peter De Forest, as well as Charles Fraas (the detective at the Halstead/Restivo 1986 criminal trial) and another researcher.

N. Petraco, C. Fraas, F.X. Callery, and P.R. De Forest, "The Morphology and Evidential Significance of Human Hair Roots," J.

FORENSIC SCI. 33(1):68-76, 73 (1988).

According to Houck, "[t]he transformation of the putrid root only occurs in roots that remain in the scalp of a decomposing body; the changes do not occur if the hair is plucked (or shed) prior to death and allowed to deteriorate." (Houck Rpt. 7.) He asserts that, according to the literature on the topic, for a hair to exhibit PMRB three conditions must be met: the hair must have been (1) in the active growing phase prior to an individual's death; (2) in the skin while the body was decomposing; and (3) "in the decomposing skin for a minimum of 7 days." (Id.) Based on Houck's understanding of the prosecution's theory of the Fusco Homicide, according to which Fusco was in Restivo's van for "perhaps less than an hour," the Q hairs could not have come from Fusco on the night she disappeared. (See id. at 7-8.) Houck concludes: "Based on the known and documented scientific clinical studies on post-mortem root banding relating to its timing, description, appearance, and conditions for existence, there is no known mechanism or reasonable explanation for [PMRB] to appear in Ms. Fusco's hairs that were allegedly left in the blue van . . . ." (Id. at 8.)

B. Nicholas Petraco

Nicholas Petraco has a Bachelor's degree in analytical chemistry and a Master's degree in forensic science. Among other things, Petraco was a trace evidence analyst with the New York Police Department ("NYPD") from 1974 until 1990. In this role, he analyzed hair evidence in thousands of cases. (Pls. Ex. 15, Petraco Expert Report ("Petraco Rpt.") 2.) Since 1990, he has consulted for the NYPD's Forensic Investigation Division, where he is responsible for performing casework, training new analysts, and establishing standard operating procedures for the Department's criminalistics unit. (Id.) Among his professional and educational accomplishments, Petraco chaired SWGMAT's hair committee and, as mentioned above, co-wrote "The Morphology and Forensic Significance of Human Hair Roots," a landmark article on PMRB. (Id. at 3.)

Like Houck, Petraco believes that the Q8 hairs purportedly collected from Restivo's van could not have come from Fusco either before she died or during the brief span between her death and when her body was left in the woods.

(Petraco Rpt. 3). As to the PMRB, Petraco opined that PMRB only develops in hairs while they are attached to a decomposing body and that the banding takes at least 8 hours after death to appear. (Id. at 4-5.) On the latter point, Petraco cites two instances in which PMRB was observed in hairs 8-10 and 10-12 hours after death, respectively. According to Petraco, these are the shortest reported intervals before which PMRB has been observed. (Id. at 5.) Petraco has never seen, read, or heard about a case in which PMRB appeared less than eight hours after death. (Id.) Petraco also states that hairs do not continue to develop post-mortem banding patterns once they've been removed from a dead scalp. (Id. at 5.)

Petraco makes two other points relevant to the following discussion. First, he observed that the Q8 hairs exhibited banding patterns that are consistent with the patterns on "known" hairs collected during Fusco's autopsy. (Id. at 6.) And, because hairs do not continue to develop PMRB once they are removed from the scalp (id. at 5), it is "extremely unlikely, and probably impossible" that the Q8 hairs--if they really came from Fusco either before or shortly after she died--would ...


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