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Restivo v. Hessemann

United States Court of Appeals, Second Circuit

January 19, 2017

JOHN RESTIVO, DENNIS HALSTEAD, Plaintiffs-Appellees,
v.
CAROLANN HESSEMANN, as executrix of the Estate of Joseph Volpe AKA Joseph Volpe, Defendant-Appellant.

          Argued: April 5, 2016

         Appeal from United States District Court for the Eastern District of New York (Joanna Seybert, J.) judgment in favor of plaintiffs-appellees John Restivo and Dennis Halstead following a jury trial. Defendant-appellant Carolann Hessemann, as executrix of the Estate of Joseph Volpe, ("Volpe") challenges the district court's grant of Restivo and Halstead's motion for a new trial; several evidentiary rulings at the second trial; the district court's holding that Volpe was not deprived of a fair trial because his counsel was allegedly operating under a conflict of interest; the district court's denial of Volpe's motion for remittitur and a setoff of damages; and the district court's grant of attorneys' fees to counsel for Restivo and Halstead. For the reasons that follow, we affirm the judgment of the district court.

         Affirmed.

          ANNA BENVENUTTI HOFFMANN (Alexandra Lampert, on the brief), Neufeld Scheck & Brustin, LLP, New York, NY, for Plaintiffs-Appellees.

          RICHARD M. LANGONE (Peter J. Tomao, on the brief), Garden City, NY, for Defendant-Appellant.

          Before: POOLER, PARKER, LIVINGSTON, Circuit Judges. [1]

          POOLER, Circuit Judge

         Appeal from United States District Court for the Eastern District of New York (Joanna Seybert, J.) judgment in favor of plaintiffs-appellees John Restivo and Dennis Halstead following a jury trial. Defendant-appellant Carolann Hessemann, as executrix of the Estate of Joseph Volpe, ("Volpe") challenges the district court's grant of Restivo and Halstead's motion for a new trial; several evidentiary rulings at second trial; the district court's holding that Volpe was not deprived of a fair trial because his counsel was allegedly operating under a conflict of interest; the district court's denial of Volpe's motion for remittitur and a setoff of damages; and the district court's grant of attorneys' fees to counsel for Restivo and Halstead. For the reasons that follow, we affirm the judgment of the district court.

         BACKGROUND

         In 1984, sixteen-year-old Theresa Fusco was raped and murdered in Nassau County. As will be described in greater detail below, then-21-year-old John Kogut confessed to the Nassau County Police, stating that he, John Restivo, and Dennis Halstead had participated in the rape of Ms. Fusco, and then murdered her. All three men were charged with the rape and murder. Restivo and Halstead were tried jointly, and in 1986, a jury found both men guilty of rape and second degree murder; they were sentenced to 33-and-one-third years to life. Kogut was tried separately, and was convicted by jury; he was sentenced to an indeterminate term of imprisonment of 37-and-one-half years to life.

         But in 2003, DNA testing was conducted on a slide containing cells taken from a swab of the victim's vagina after her body was found. The testing revealed the presence of DNA from two individuals: Ms. Fusco and an unknown man. The testing excluded Kogut, Halstead, and Restivo from having contributed that DNA. The DNA also did not match that of 86 other individuals known to Ms. Fusco. Based on this evidence, Halstead, Restivo, and Kogut's convictions were vacated. The State went to trial again against Kogut, primarily based on his confession, but, when he was acquitted, the State dropped the charges against Restivo and Halstead. Ultimately, Halstead and Restivo spent eighteen years in prison-two pretrial and sixteen following conviction-for these crimes. This civil suit, alleging malicious prosecution and denial of fair trial claims, among other claims, followed.

         I. The Crime, Investigation, and Criminal Trial

         In 1984, sixteen-year-old Theresa Fusco went missing. She was last seen on November 10, 1984 at 9:47 PM, when she clocked out of her job at Hot Skates, a roller rink, in Lynbrook, New York. A missing persons investigation began the next day, with then-Nassau County Homicide Detective Joseph Volpe acting as lead detective.[2] Several weeks after Ms. Fusco went missing, on December 5, 1984, her body was found, naked, near the Lynbrook railroad tracks. As the medical examiner testified, the autopsy showed that she had been raped and that the cause of death was ligature strangulation.[3] The medical examiner also determined that Ms. Fusco was most likely strangled with a rope, approximately one inch thick. On cross-examination, the medical examiner testified, based on the injuries to Ms. Fusco, that she believed that Ms. Fusco was strangled with pressure applied to the front of her neck with "rope or ligature, going from the back toward the neck, possibly crisscrossing with a lot of movement, and then both hands extending in the back of the neck." Trial Tr. at 719.[4] She further testified that the rope "should be less than six feet, depending on how it was applied" because "both ends of the rope never touched the skin in the back, " and that she would expect that there would be blood on the rope visible to the naked eye. Trial Tr. at 720-22. On redirect, she testified that, considering that thickness of the rope, it would have been easier to strangle Ms. Fusco if the rope were shorter, but clarified, "I don't know the length of the rope. I have no idea." Trial Tr. at 726.[5]

         In late January 1985, Volpe heard that a man named Harry Smyle had been making suspicious statements about the murder. After an eleven hour interrogation and being told that he was a suspect, Smyle told police that Restivo had made a suspicious statement to him about the murder. Volpe then picked up Restivo. Volpe and Robert Dempsey, another Nassau County detective, interrogated Restivo for approximately eight hours over March 5, 1985 and March 6, 1985 and allegedly physically assaulted him. Restivo then signed a statement, which stated that he heard Halstead make admissions about the Fusco murder but that did not implicate Restivo. Specifically, the statement said:

I would like to say that sometime back possibly November, December 1984, I stopped by my friend Dennis Halstead's apartment. He lives above the store on Atlantic Avenue.
. . .
When I saw him, I realized that he was also high. We were talking about 10 to 15 minutes and at this point and kind of out of the blue Dennis started to talk strange.
He started talking about a broad. Dennis said he was with a broad, a girl, and that he was either by a cemet[e]ry, in a cemet[e]ry, across from the cemet[e]ry.
He said he tried to fuck her. Then he had to fuck her up. But when he said that, he didn't tell me how he fucked her up. He then told me that he strangled her and killed her.

Appellees' Supp. App'x at 270. After Restivo was released, he contacted his attorney, Theodore Robinson, who called the homicide bureau and informed them he was representing Restivo and Halstead, and objected to the interrogation as coercive.

         On March 21, 1985, police officers came to the home of John Kogut, who worked with Restivo and Halstead, and asked him to come to the police station for questioning in relation to Ms. Fusco's murder. Kogut complied; he denied knowledge of the crime, but agreed to come back on March 25. He returned on March 25, and was interrogated through the night. Kogut testified that Volpe and Dempsey screamed at him, threatened him, and told him that they had scientific evidence, witnesses, and statements demonstrating that he committed the crime. According to Kogut, Volpe stated to him, "I'm going to tell you how you did it because I already know how it happened." Appellees' Supp. App'x at 197. Volpe then told various stories, until Kogut finally gave in and agreed; Volpe wrote out a confession, which Kogut signed at approximately 9:00 AM on March 26. The written statement said:

My name is John Kogut[.] I am 21 years of age, being born on 11-29-63. I live with my girlfriend Lisa Price and her father at 161 Traymore BLVD, Island Park. I am currently employed by Frank Bertini Landscaping, 2988 Bay View Court, Oceanside, phone RO-4- 7483.
I have been told by the detective that I have the right to remain silent and that any statements I make may be used against me in court. I have been told that I have the right to talk with a lawyer before answering any questions or to have the lawyer present at any time. Further, I have been advised that if I cannot afford to hire a lawyer, one will be furnished [to] me and I have the right to keep silent until I have had the chance to talk with a lawyer.
I understand my rights and make the following statement freely and voluntarily. I am willing to give this statement without talking with a lawyer or having one present.
I would like to say that sometime back in Nov 1984, about a week or two before my birthday I was with these two guys. One was John Restivo, who I worked for[, ] and the other was Dennis Halstead, a guy from Lynbrook I know, who also worked for Restivo. On this night, it was between 8:00 pm and 10 pm, I was with John Restivo and Dennis Halstead in John's van. It's a blue [F]ord step van, with a side door that opens. This door is located back from the right front passenger door. I seem to remember that we were coming down from a moving job, possibly Hempstead, and we were drinking beer and smoking pot. John was driving, Dennis was in the right front passenger seat, and I was sitting on a cushion seat right behind the passenger seat. We were coming from East Rockaway where John keeps his trucks up Ocean Ave. [A]t the intersection of Merrick Road John turned left. We were heading west on Merrick Road and the cemet[e]ry was on our right side. At this point there's a girl walking on Merrick Road by the cemet[e]ry and heading towards McDonalds. John pulls up and stops along side her. John and Dennis were saying let[']s see if she wants to party, meaning maybe smoke or have some beers. I felt that one of them knew her by the way they were talking, but I canʹt remember her or their exact words. When I heard this conversation, I moved up in the seat to see the girl and hear what[']s happening. Either John or Dennis invited her in, not to party, but for a ride home. I then opened the side door and I see this girl. She was about 15 or 16 years old, dark hair, medium long. She had on a blue denim dungaree jacket, I think a dark top, dark pants and white high top sneakers.
She knelt down in between Dennis and John. I was sitting behind her. Dennis, as John's driving around, says to the girl "You want to party, " "forget about getting fired, " "do you want to do the right thing." Do the right thing on the street means to get laid. With that she said, "stop the fucking van, " let me out. Dennis then jumped out of his seat and grabbed her. The girl started screaming "leave me alone, let me out." She was fighting Dennis, but he was to[o] big for her and had a good grip on her. As I moved up to where she and Dennis were, she turned on me and smacked me in the face. With this I freaked out, I got crazy and I punched her with my left fist, hit her on the right side of her face. She falls out of Dennis'[s] grip to the floor of the van. I would like to say that I hit her with a left and a right before she fell from Dennis['s] grip. I jumped on her upper body and she was trying to throw punches and kicks. At this point Dennis started taking off her pants and underpants, and I was taking her jacket shirt and bra. I'm telling her to shut up, calm down, and I realize that Dennis had put his penis inside of her. While Dennis fucked her I held her upper body down. At this point she wasn't fighting to[o] much. By this time, I mean after Dennis fucked her, we were already in the cemet[e]ry. John had stopped the van and yelled back to me and Dennis, "let me get a piece." I looked down at her and she was almost unconscious, I mean, she was fainting. Dennis pulled his pants up and was sitting in a seat by the passenger seat, John was now fucking her while she was unconscious, and I got out the side door and I took a blanket out that was in the van. I spread it out on the ground. This blanket was quilted with a different color border. Dennis and John then carried her out of the van and laid her face up on the blanket. I remember she had some jewelry on. I recall seeing a gold colored chain with what looked like a double heart on it with a piece broken off of it. I think there were other charms on the chain but I don't remember what they looked like. I then ripped the heart and chain off and I put it in my pocket. John was in the van pulling his pants up and putting his shoes on, and Dennis was taking the rest of her jewelry and rings off. Now she starts to regain consciousness. She was a little dazed, but she was saying "I gotta tell, " "I gotta tell, " and she was crying. She was still laying on the blanket with no clothes on. Dennis, John and I decided she had to be killed. We were afraid she would tell on us. She started to come to and she was getting frantic. I got on top of her, put my knees on her shoulder, and covered her mouth. My back was to John and Dennis and one of them threw me a rope. One of them said "Do what you gotta do, " but first, before the rope was thrown to me Dennis, while standing over her told her, "You have to die." They both went back to the van. I took the rope, which was a hard nylon type. I wrapped it double around her neck, then I twisted it like a cork screw. I twisted it for a few minutes until her body went limp, and I felt she was dead. I rolled her body up in the quilt and I threw her over my shoulder and to the van. I threw the rope into the van and then I dropped the body into the floor of the van. I got into the van, closed the door, and John took off out of the cemet[e]ry. Dennis was sitting up front. As we were leaving the cemet[e]ry we discussed that we had to get rid of the body. While we were driving and talking, I was putting the clothing into a plastic garbage bag. In addition to her clothing, I took her pocketbook and put it into the bag. It was maroon or black with a strap. I don't remember what I did with the rope, and I left the plastic bag with her clothing in it behind the driver[']s seat. I told John he had better get rid of the clothing and he said he'd take care of it. We then went down a street across from the cemet[e]ry that dead ends by the railroad tracks. I donʹt remember who picked out the street but it was dark there. John [and] Dennis took her body out the side door and still wrapped in the quilt, they walked into the wooded area along the tracks and I was behind them. It was very dark and very heavy brush. John was carrying her by her head and walking backwards and Dennis had her feet. It seemed like 5 or 10 minutes to walk in before we got to an opening. At this opening we saw some wooden [pallets]. When they put her down, they both pulled the blanket and she rolled out. She ended up face down. We all started kicking leaves on her and I suggested we cover her with the [pallets], which we did. At this point I told Dennis and John I was leaving. As I started out from where her body was, I threw the jewelry I had by the tracks. I walked along the tracks until I came to a street. I turned right and I was on Sunrise [Highway].
I walked down Sunrise to Union Ave. I crossed over Sunrise on Union to Oakland. At this time I was living with my friend Brian Skellington at 66 Oakland Ave, Lynbrook. The front door was open, I went and went to sleep.
I am presently at the Homicide Squad, I have given this statement to Det. Volpe who has written it for me, I've read it and it is the truth.

App'x at 314-20; see also First Trial Tr. at 1383-1413. Kogut also gave a videotaped confession, confirming that he had been advised of and understood his constitutional rights and repeating the above story in material part. Kogut was then arrested and indicted on three counts: first-degree rape; second-degree murder in the course of rape; and intentional second-degree murder. Following a jury trial, Kogut was convicted on all counts and was sentenced to serve 37-and- one-half years to life in prison.

         However, even with Kogut's confession, police recognized that they would have a very weak case against Restivo and Halstead unless Kogut were ultimately to testify against them at trial (which he did not). See Appellees' Supp. App'x at 225-26 (Detective Spillane, Volpe's supervisor, testifying that, as of March 26, after Kogut confessed and was arrested, the case against Halstead and Restivo was "very weak if not nonexistent"). Restivo's van was seized pursuant to a warrant soon thereafter. Certain hairs were allegedly found in Restivo's van pursuant to this search. Several of these hairs, the "questioned hairs" or "Q hairs, "[6] were determined to be consistent with Ms. Fusco's hairs.[7] These hairs provided the only forensic evidence linking Restivo and Halstead to the crime.

         Restivo and Halstead were then also arrested and indicted with counts of first-degree rape, second-degree murder in the course of rape, and intentional second-degree murder. Restivo and Halstead were tried jointly. As will be discussed below, Kogut's confession was inadmissible against Halstead and Restivo at their criminal trial, because Kogut did not testify. Nor was Restivo's statement implicating Halstead introduced at trial. Instead, the State introduced the Q hair evidence and evidence of statements allegedly made by Restivo or Halstead to third parties. Restivo and Halstead were convicted of all counts, and each was sentenced to 33-and-one-third years to life.

         II. The DNA Evidence

         Beginning in 1993, samples of semen obtained from Ms. Fusco's body were subjected to DNA testing. Initial tests excluded Halstead, Restivo, and Kogut as the source of the semen, but plaintiffs' motions to vacate their convictions were denied. A new round of DNA testing was conducted in 2003, which again demonstrated that neither Halstead, nor Restivo, nor Kogut was the source of the semen found in Ms. Fusco's body. Thereafter, on June 11, 2003, all three men's convictions were vacated. The Nassau County District Attorney retried Kogut, based on his confession and, in December 2003, Kogut was acquitted. The District Attorney then moved to dismiss the indictment against Restivo and Kogut, on the ground that the DNA evidence disproved the state's theory of the case. The indictments were dismissed on December 29, 2005.

         III. Civil Suit

         Kogut filed suit on December 19, 2006, and Restivo and Halstead filed suit on December 21, 2006. The district court consolidated the suits, which alleged numerous constitutional claims pursuant to 42 U.S.C. Section 1983, as well as state law claims related to the Fusco investigation and their prosecution.[8]

         A. First Trial

         Following an extensive Daubert hearing, which will be discussed below, and motion practice, the case proceeded to trial on claims that defendants Joseph Volpe, Robert Dempsey, Frank Sirianni, Thomas Allen, Wayne Birdsall, and Charles Fraas maliciously prosecuted Restivo, Halstead, and Kogut and deprived them of their constitutional right to a fair trial, as well as a failure to supervise claim against defendant Shaun Spillane[9] and a municipal liability claim against Nassau County. The jury found for defendants on all counts.

         Thereafter, all three plaintiffs moved for a new trial on various grounds. The district court granted Restivo and Halstead's new trial motion, but denied Kogut's.[10] In particular, the district court ruled that it had erred in its treatment of Kogut's confession as to Restivo and Halstead. At trial, the confession was admitted without any limiting instruction to establish probable cause for the prosecution of Restivo and Halstead. The district court concluded that it was error to allow the jury to consider the confession to establish probable cause for Restivo and Halstead's prosecution because the confession was inadmissible against them in their criminal trials, relying on Boyd v. City of New York, 336 F.3d 72 (2d Cir. 2003). The district court read Boyd as holding that defendants cannot use evidence that was inadmissible in a criminal case to establish probable cause to prosecute. The court concluded that its error affected Restivo and Halstead's substantial rights, given that the confession "was arguably one of the central pieces of evidence in this case." Special App'x at 62.

         B. Second Trial

         The case then proceeded to a second trial, at which Restivo and Halstead greatly narrowed their claims. At the second trial, plaintiffs claimed that Volpe and Fraas, the hair evidence technician who worked on the Fusco investigation, unconstitutionally deprived them of a fair trial under Section 1983 and that Volpe and Fraas maliciously prosecuted them under Section 1983 and New York state law. Both claims were based on the same two factual theories: that Volpe suppressed exculpatory evidence and/or that Volpe, either independently or with the assistance of Fraas, planted the hairs allegedly found in Restivo's car.

         Pursuant to its ruling that "in attempting to show probable cause, Defendants [are] limited to evidence that was both included in their interrogatory responses and admissible in Halstead and Restivo's criminal proceedings, " Special App'x at 61, and finding the confession irrelevant to the fair trial claims, the court excluded Kogut's confession from coming into evidence at the second trial. The court also excluded Restivo's statement to police regarding inculpatory statements allegedly made by Halstead on the ground that the statement was inadmissible in the criminal trial.

         Ultimately, the jury found that Volpe, but not Fraas, maliciously prosecuted plaintiffs and deprived them of their right to a fair trial. A special verdict was not requested, and the jury therefore did not specify whether it found against Volpe on the theory that he suppressed exculpatory evidence, planted the hair evidence, or both. Following a separate damages trial, the jury awarded each plaintiff a damages award of $18 million.

         1. Evidence at Trial

         We turn now to the evidence presented at trial.

         a. Plaintiffs' Claims of Innocence

         Plaintiffs were not required to prove their innocence to win on their claims at trial. However, the evidence of their innocence provides an important backdrop for their claims at trial. As noted, the DNA testing in 2003 demonstrated that neither Restivo, nor Halstead, nor Kogut contributed the semen found in Ms. Fusco after her death. Volpe asserts that this does not establish plaintiffs' innocence, and speculates that plaintiffs raped the victim without ejaculating or while wearing condoms and that the sperm came from a consensual sexual partner. Volpe baselessly speculates that, although there was no evidence that Ms. Fusco was sexually active, she may have been having sex with her boyfriend, who was black, and she may not have told her friends because "it was socially unacceptable for white girls to date black guys on Long Island in the 1980s." Appellant's Reply Br. at 4. However, not only does this speculation lack any basis in record evidence, it is also rendered implausible by testimony at trial.

         First, plaintiffs' expert witness, Dr. Charlotte Word, testified about the DNA evidence in this case. She testified that vaginal swabs and smears taken from Ms. Fusco at her autopsy and later put on slides showed DNA from two sources. First, there was Ms. Fusco's DNA, demonstrating that these slides were taken from her and were not mislabeled or misplaced. Second, there was semen from only one male donor. As noted, the testing on the semen definitively excluded Restivo, Kogut, and Halstead as a source. The semen was also tested against DNA profiles of 86 individuals known to Ms. Fusco, including various people she had dated, and there were no matches. Nor was there a match when the semen was tested against the Combined DNA Index System database kept by the Federal Bureau of Investigation. Further, Dr. Word testified that there was a large quantity of sperm present and that the DNA in the sperm head was well preserved. The quantity of sperm indicated that the "murder occurred very soon after the deposition of the sperm." Trial Tr. at 435. Additionally, Dr. Word testified that the Nassau County medical examiner's office records indicate that a very large number of sperm were collected from the vaginal cavity on the swabs and, "when looked at microscopically, two different individuals were able to see that the tail portion of the sperm was also still attached to the sperm head." Trial Tr. at 436. Dr. Word testified that "the presence of tails on the sperm means that the sperm had not been in the vaginal cavity for a very long time[, ] [b]ecause normally, in a normal healthy female, probably within six hours or less, maybe at the outside ten to twelve hours, those sperm tails are lost." Trial Tr. at 436. In sum, she testified that the sperm was deposited "[p]robably no more than eight to twelve hours, but more likely less than six" hours of the time of her death. Trial Tr. at 443. Furthermore, the physical evidence rebutted defendants' hypothesis that plaintiffs raped Ms. Fusco while wearing condoms after a consensual sexual partner deposited the semen. In particular, Dr. Word gave the following explanation:

[T]he physical act of two [or] more, or whatever more of vaginal penetration and sexual intercourse with her [even with condoms] would . . . contribute to the loss of sperm from the vaginal cavity. So under that scenario, my expectation would be that we would have a much smaller number of sperm present on the samples collected. It wouldn't be consistent with that hypothesis.

Trial Tr. at 444.

         Nor is there any evidence that Ms. Fusco was sexually active. The undisputed evidence, based on notes from the investigating detectives, Ms. Fusco's diary, Ms. Fusco's mother, and Ms. Fusco's best friend, was that Ms. Fusco was a virgin prior to the rape. Moreover, as noted, DNA testing done on 86 individuals, including various boyfriends and ex-boyfriends of Ms. Fusco, did not reveal a match.[11]

         Further, defendants introduced only limited evidence at trial to establish Restivo and Halstead's guilt. Indeed, the primary evidence they sought to introduce to establish plaintiffs' guilt was Kogut's confession and Restivo's statement implicating Halstead; as discussed in detail below, both of these statements were hearsay that the jury could not consider for the truth of the matters asserted, that is, for the truth of whether Halstead and Restivo committed the crimes. The only other evidence introduced at trial tending to show their guilt was the testimony of Restivo's friend Michael Cockerel, who testified that, before Ms. Fusco's body was found, Restivo commented to him that the body would probably be found at Lynbrook Cemetery; that Restivo's brother assaulted him, and was then charged with witness tampering; that, when he asked Restivo if he committed the crime, Restivo responded, "Didn't matter who did it. She was a black person lover, " Trial Tr. at 2430; and that, the day after Ms. Fusco's disappearance, Restivo told him that he "got his dick wet" the prior night, Trial Tr. at 2431. But on cross-examination, Cockerel admitted that he gave various statements to police that had contradictory information, that he lied to the grand jury, and that he was interviewed by police for more than ten hours, during which time police accused him of being involved in the crime.[12]

         b. Suppression of Exculpatory Evidence

         We now turn to the theories underpinning plaintiffs' malicious prosecution and denial of fair trial claims. First, plaintiffs claim that Volpe suppressed exculpatory evidence regarding a lead that Volpe developed-the "French lead."

         Volpe testified at his deposition that, when she went missing, Ms. Fusco was wearing dark and light striped blue jeans with stripes two to three inches apart, and that the jeans were tapered at the ankles with cuffs. Accordingly, a missing person flier, which stated that the victim was wearing striped blue jeans when she went missing, was posted around town.

         Shortly after Ms. Fusco's body was found, a man named John French called to alert the police that his car had been stolen near Hot Skates around the same time of Ms. Fusco's disappearance.[13] Specifically, the report, which was made on December 6, 1984, stated that French's car had been stolen between 9:30 PM and 11:05 PM on November 10, 1984 less than a mile away from Hot Skates.[14]French found his car about a week later, before Ms. Fusco's body was discovered. He found the car near railroad tracks in Lakeview, near Woodfield Road, approximately one and one-half to two miles away from where it had been stolen. When he found the car, the license plates had been changed. Additionally, his sister, Lori French Gabberty, found a pair of women's or girls' jeans with stripes under the right passenger seat; at least one leg of the pants was inside out. These jeans were not in French's car before it was stolen. The jeans were discarded inadvertently by the Lynbrook Police[15] before Ms. Fusco's body was found. French also stated that, when he found his car, a rope that had previously been there was missing. The car was taken for processing, and was combed for forensic evidence. Volpe's handwritten notes indicate that he got hair samples from people who may have had access to French's car, and that investigators found a hair that was "more than 50% similar to deceased & less than 100% similar" to Ms. Fusco's in the car. Appellees' Supp. App'x at 1569.

         Two documents were created as a result of Volpe's investigation, Plaintiffs' Exhibits 161 and 163. Exhibit 161 is a report providing information about the location and time of the theft of French's car, where the car was found, and the discovery of women's blue jeans with stripes, inside out under the seat. Exhibit 163 is a statement from French, wherein he describes being shown a length of rope and a brown felt pouch, which he identified as belonging to him. See App'x at 375 (photograph of rope).

         At his deposition, Volpe testified that he thought that the French lead was Brady material, but that he turned it over to the District Attorney. There is evidence, however, that Volpe in fact did not turn over the French lead material. This evidence included testimony from Restivo that he did not know about this evidence at the time of his trial, testimony from Restivo's criminal trial counsel that he did not know about this evidence at the time of trial, evidence that Volpe did not disclose that striped jeans were found in French's car or that a rope was missing when he informed his supervisor, Lieutenant Spillane, that he was closing the French lead, testimony from the Assistant District Attorney on the case that he did not remember whether Volpe had told him about the French lead, and testimony from Judge Edward W. McCarty, who was the Assistant District Attorney on the case, that he did not remember being told about the French lead at the time of the investigation and that he never saw Exhibits 161 or 163 or learned the information contained therein before the civil trial. The parties also stipulated that Nassau County District Attorney's Office Chief of Appeals Bureau Peter Weinstein, who oversaw the State's response to Halstead and Restivo's requests for post-conviction relief would testify that "[t]o the best of [his] knowledge, th[e] information about the French car/striped jeans lead was never disclosed by police to the prosecutors." Appellees' Supp. App'x at 1736. And the county attorney previously representing defendants in the civil suit testified that when she received the DA's files and reviewed them, she did not recall seeing Exhibits 161 or 163 or other evidence about the French lead.

         Further, although Volpe admitted at his deposition that he knew the French lead was exculpatory, his attorney now argues that it was not, relying on the following evidence. First, at the civil trial, Gabberty testified that the jeans she found in 1984 had stitching, and she could not remember if there were stripes. But in 1984 she told police that the jeans were striped, and she testified at the civil trial that her memory was much fresher at the time she first spoke to detectives than at the civil trial decades later. Volpe also argues that the rope could not have been used in the murder because it had no blood on it and the medical examiner testified that the rope was too long, relying apparently on the image of the rope in evidence. But at trial, as noted, the medical examiner testified that although using a shorter rope would have been more efficient at killing Ms. Fusco, she "[doesn't] know the length of the rope; [she] [has] no idea." Appellees' Supp. App'x at 568. Further, the rope went missing at some point and was not tested for blood.

         The materiality of the French lead was also reinforced by testimony from plaintiffs' police practices expert, Russell Fischer. Fischer worked in law enforcement for 33 years, ultimately achieving the rank of chief of criminal investigations in the Miami-Dade Police Department, one of the seven largest police departments nationwide. Fischer now works as an expert witness and assists in training law enforcement officers. At trial, Fischer testified to minimally accepted police practices, "a baseline type of behavior or protocols that law enforcement officers follow, " which differ from best practices. Trial Tr. at 1776. He testified that these minimally accepted police practices derive from a number of sources including court decisions, articles written by police practitioners, model policies produced by the International Association of Chiefs of Police as well as other groups, as well as practices from major police departments.

         Fischer testified that, based on the evidence he had, the French lead was clearly exculpatory, and should have been documented and sent to a prosecutor, based on minimally accepted police practices in the 1980s. In particular, Fischer concluded that based on the time and location of the theft, the fact that the car's license plates were removed, the fact that a rope was in the back seat at the time of the theft and a rope was used as a ligature to strangle Ms. Fusco, and the fact that a pair of women's or girls' striped jeans were found in the back seat of the vehicle, with at least one leg turned inside out, this lead was clearly exculpatory. Fischer testified that under minimally accepted practices, exculpatory evidence does not need to definitively prove innocence in order for it to have to be documented and disclosed, and that the combination of all of these factors meant that the evidence should have been disclosed under minimally accepted police practices.

         c. Planting of Hair Evidence

         The second theory underlying plaintiffs' malicious prosecution and fair trial claims was that Volpe, either alone or with the assistance of Fraas, planted the Q hairs belonging to Ms. Fusco that were allegedly found in Restivo's van. According to plaintiffs' theory of the case, Volpe removed several hairs from an envelope containing hairs removed at Ms. Fusco's autopsy and planted them in an envelope containing hairs collected from Restivo's van. By contrast, Volpe contends that Restivo and Halstead are actually guilty of the crime, and Ms. Fusco's hairs fell out in Restivo's van during the commission of the crime.

         Several pieces of evidence support plaintiffs' theory of the case. When Ms. Fusco's body was brought to the Medical Examiner's office, after photographs were taken, her hair was washed with water and the debris and leaves were removed. One of plaintiffs' experts testified that there was no significant mechanical damage to the Q8 or Q4 hairs or any debris on the hairs. Ms. Fusco's known hairs removed at the autopsy were in the same condition, basically without debris or mechanical damage. By contrast, the other hairs removed from Restivo's van, which were not consistent with Ms. Fusco's hair, "had some mechanical damage, which is typical[ly] what happens to hair when it is laying around in an area where people work or walk or travel through, etcetera, " and "also had some debris on it." Trial Tr. at 921.

         Additionally, extensive expert testimony was given regarding the presence of post-mortem root banding ("PMRB") in the Q hairs, which testimony was the subject of a five-day Daubert hearing. PMRB is a type of decomposition that occurs in hairs that are attached to dead bodies. Plaintiffs sought to introduce expert evidence that the Q hairs displayed PMRB and that PMRB takes days, if not weeks, to develop. This evidence would tend to show that the Q hairs were planted autopsy hairs; because the medical examiner testified that Ms. Fusco was placed where she was found within an hour of her death, even if Ms. Fusco was in Restivo's van after she had been killed, according to plaintiffs' experts, the Q hairs still must have been planted because PMRB could not develop in her hair within an hour of her death.

         Plaintiffs proffered three experts in the field of PMRB: Dr. Max Houck, a forensic anthropologist and trace evidence analyst; Nicholas Petraco, a former trace evidence analyst with the New York Police Department ("NYPD") and a consultant for the NYPD's Forensic Investigation Division; and Dr. Peter DeForest, who taught criminalistics at the John Jay College of Criminal Justice for nearly forty years. Following a five-day Daubert hearing, the district court ruled on the admissibility of these experts and their testimony. The district court found that Dr. Houck, Petraco, and Dr. DeForest qualified as experts, rulings not challenged on appeal by Volpe.[16]

         The district court summarized the evidence presented by plaintiffs' experts at the Daubert hearing as follows. Dr. Houck defined 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." Kogut v. County of Nassau, 894 F.Supp.2d 230, 235 (E.D.N.Y. 2012) (internal quotation marks omitted). He explained that PMRB is an artifact of decomposition: hairs in the active growing stage when in the time of death "go through changes in their root ends related to the decomposition of the surrounding skin and follicle." Id.

According to Houck, the 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. 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. 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. Houck concludes: Based on the known and documented scientific clinical studies on postmortem 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. Fuscoʹs hairs that were allegedly left in the blue van.

Id. (alterations, citations, and internal quotation marks omitted).

         Next, Petraco also believed that the Q8 hairs could not have come from Ms. Fusco before she died or during the time between her death and when her body was left in the woods. He "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, " citing "two instances in which PMRB was observed in hairs 8-10 and 10-12 hours after death, respectively, " the shortest intervals before which PMRB has been observed. Id. at 236. Petraco also "observed that the Q8 hairs exhibited banding patterns that are consistent with the patterns on 'known' hairs collected during Fusco's autopsy, " and "because hairs do not continue to develop PMRB once they are removed from the scalp, 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 exhibit PMRB consistent with [the] degree of banding seen on the autopsy hairs taken weeks after Fusco was murdered." Id. (citation and internal quotation marks omitted). Finally, Dr. DeForest stated that PMRB is a recognized phenomenon in the scientific community of hair examiners, although scientists do not fully understand the mechanisms that cause it. See id. at 237. He concluded that, based on the degree of PMRB of the Q8 hairs, and the fact that it was "similar to the greatest degree" of PMRB of Ms. Fusco's known hairs from the autopsy-the "K hairs"-that "to a reasonable degree of scientific certainty that the Q8 hairs exhibiting PMRB came from the sample of known hairs taken at the autopsy of the homicide victim, Theresa Fusco." Id. (alteration omitted). He also concluded that the Q4 hair exhibited PMRB beyond a reasonable scientific certainty. See id.

         Considering Federal Rule of Evidence 702, Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the district court concluded that "[t]he 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." Id. at 240. The court reached this conclusion because although this theory was falsifiable, it had not been tested. Further, although the experts agreed that PMRB takes days, not hours, to develop, this hypothesis was not firmly grounded in the sparse academic literature or scientific studies on the topic. Additionally, there were two cases in the 1980s where PMRB was observed between 8-12 and 10-12 hours after death respectively, which would contradict the theory that it takes days for PMRB to develop, assuming those reports were accurate. The court concluded therefore that the experts could not testify that their conclusions regarding the timing of PMRB or the ultimate issue of whether Ms. Fusco's hairs were planted were sound to a reasonable degree of scientific certainty.

         However, although the evidence did not pass muster as "scientific" evidence under Daubert, the court held that the witnesses could testify based on their "technical or other specialized knowledge" under Federal Rule of Evidence 702. Id. at 242-43. That is, the court reasoned, "much of what Plaintiffs' Experts have to say is grounded in sound science, and the last leap-the timing-is justified by their training and experience." Id. at 243. The court found that, aside from the timing issue, the testimony on PMRB is supported by many of Daubert's indicia of reliability. The district court found that there was evidence that PMRB can be distinguished from other types of environmentally caused banding within an acceptable rate of error-99.5% accuracy when one person worked alone, or 100% when two examiners double checked each other's work. This was reinforced by graduate student Alison Domzalski's thesis, which stated that although environmental factors can cause changes to scalp hair roots, environmental banding is visually different, occurring at a different place on the hair than PMRB. Additionally, the experts' opinions were consistent with the academic literature on the topic, and PMRB, as plaintiffs' experts described it, is a generally accepted phenomenon within the forensic science community. In sum, the court concluded that "although these facts do not add up to scientific proof, they supply a reasonable basis for forensic experts to conclude that PMRB is an artifact of decomposition and that, consistent with the speed at which other effects of decomposition appear on a corpse, it does not appear immediately after death." Id. at 244.

         Before the second trial, plaintiffs moved for reconsideration on the ground that a new peer reviewed study on PMRB, the Koch study, addressed many of the deficiencies in the literature that previously troubled the district court. In that study, FBI and Bureau of Alcohol, Tobacco, Firearms, and Explosives criminalists working at the University of Tennessee's "body farm" tested approximately 24, 000 hair roots from 23 human cadavers permitted to decompose in varying environmental conditions. In cadavers outside on the ground, PMRB generally did not develop until 6-10 days after death. The earliest development of PMRB in the study, which occurred in a cadaver placed in the trunk of a car in August, occurred after 4 days. Upon reconsideration, the district court found that this new evidence addressed some of its concerns about PMRB evidence, but ultimately held, "You can bring it in and testify to it, but they can't use the magical words 'to a degree of scientific certainty.'" Appellees' Supp. App'x at 440. Volpe challenges this decision on the grounds that the Koch report stated that it was unable to draw any conclusions as to the onset of PMRB. Appellant's Reply Br. at 44. But the Koch study merely stated that the rate of putrefaction versus time and temperature could not be calculated.

         At trial, plaintiffs' experts testified regarding PMRB. Defendants raise issue with Dr. Houck's and Petraco's testimony, claiming that they violated the court's ruling that they were not to testify that their opinion was to a reasonable degree of scientific certainty. In particular, Dr. Houck, in response to a series of hypothetical questions, stated that he did not think it was possible for Ms. Fusco's hairs to have been left in Restivo's van during the rape and murder because of the presence of PMRB, and because the best evidence shows that PMRB takes on the order of days to develop. In response to defendants' concerns about Dr. Houck's testimony, the district court charged the jury, "Ladies and gentlemen, certain witnesses are permitted to testify as experts. The Court has ruled that such expert testimony, however you deem it or however you consider it, cannot be a substitute for your own independent evaluation of the facts in this case. Moreover, the witness is not testifying to a reasonable degree of scientific certainty." Appellees' Supp. App'x at 632. Volpe also takes issue with Petraco's testimony that the presence of PMRB meant that the Q hairs could not have come from Ms. Fusco on the night she died, as well as his statement that he would testify about PMRB to a reasonable degree of scientific certainty, if he were permitted to. However, he later clarified on cross-examination that he was not testifying about the timing of PMRB to a reasonable degree of scientific certainty.

         Volpe also sought to introduce evidence from an expert witness-Dr. Joseph B. Kadane. Dr. Kadane, a statistician, sought to testify that (1) post- mortem root banding could not be distinguished from various types of ante- mortem root banding and that (2) the academic research that had been done to that point was insufficient to establish how long it took after death for PMRB to appear. With respect to the first question, he referred to the study by Domzalski, referenced above. Domzalski's study cautioned that various environmental conditions can cause a type of root banding, which "could be confused" with PMRB, but she noted that environmental banding appears at a different location than PMRB. Kogut, 894 F.Supp.2d at 237. Based on Domzalski's study, Dr. Kadane sought to testify: "[I]t is not unreasonable to suppose that the Q-hairs were also exposed to dirt in the van in which they were found. Since the mechanism(s) that lead to root banding is unknown, we are not in a position to determine whether the Q-hairs are pre- or post-mortem. Neither of these can be excluded." Id. at 238. On the second issue, Dr. Kadane sought to testify that plaintiffs' experts' data fails to account for crime scene and autopsy delays, and that there is no statistical evidence to support plaintiffs' experts conclusions on the timing of the development of PMRB. Id. With respect to Dr. Kadane, the court found that he "does not have the relevant expertise to offer a helpful opinion at trial." Id. at 244. Specifically, the court found that although he was an accomplished statistician, he does not have more than a passing familiarity with hair microscopy and forensic science, and he had not conducted his own statistical analysis of PMRB. Id. at 244-45.

         Next, defendants contend that there was no evidence that Volpe had the ability to plant the evidence. But there was evidence that he did have such an ability. The known hairs, or K hairs, taken from the autopsy were kept in a set of clearly marked envelopes labeled "K" and with Ms. Fusco's name, and the Q8 hairs were kept in an envelope stating "van" and "right front seat floor." Appellees' Supp. App'x at 1659-60. There was nothing on the envelopes stating how many K hairs were in each envelope, and therefore there was no way of knowing whether any of Ms. Fusco's K hairs from the autopsy were removed from the envelope.

         The envelopes containing the K hairs and the Q hairs were unsealed, and were kept by Fraas in the same unlocked cabinet above the table in the microscope room in the Scientific Investigation Bureau ("SIB"). The cabinet had a sliding glass door to close it, and did not have a lock. The envelopes were neither logged in and out nor resealed every time they were taken out. Further, although there was a log where Fraas and other technicians signed in and out when they arrived and left the lab, there was no log for visitors who had to be buzzed in to the lab; thus, if someone was buzzed in there was no documentation of that fact. Fraas testified that he could not recall specifically if Volpe came to the lab on March 26, but he may have come then, or on March 27 or 28. Further, there was testimony that the door to the hair room was not always locked, so those who had access to the lab also had access to the hair room; accordingly those with access to the lab could have access to the unlocked cabinets where the Q and K hairs were kept. If a homicide detective, such as Volpe, buzzed to enter the lab, and if the person he asked for was in the lab, he would be let in without having to sign in. Depending on who greeted the homicide detective at the door, the detective would sometimes be escorted to where he was going, and sometimes would not be. According to testimony from ...


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