FROM THE ARCHIVES, 2005: Charges dismissed against 2 in Fusco murder case

This article was originally published on December 30, 2005

They served 17 years in prison, then waited another tortuous two years to see if authorities wanted to put them back behind bars.

But yesterday it took just 15 minutes for a judge to dismiss charges against John Restivo and Dennis Halstead, after prosecutors acknowledged they didn't have enough evidence to try them for the 1984 rape and killing of Theresa Fusco.

"The application is granted and the charges are dismissed," said Acting Supreme Court Justice William Donnino. Applause broke out in the Mineola courtroom and the defendants embraced their attorneys.

Afterward, in the hallway, Restivo broke a 20-year silence and called for an investigation by "an outside agency" into what he called police and prosecutor misconduct in the case.

"We have to get to the bottom of this," he said, later adding, "There is no accountability whenever something like this happens in court."

Both men said they sympathized with the Fuscos but blamed police for misleading the family into thinking the case had been solved.

"Somebody did get away with murdering their daughter," said Halstead, adding he hoped to one day "sit down and talk" with the family.

But Theresa's father, Thomas Fusco, who watched the proceeding, said afterward he remains convinced of their guilt. "I believe these people were the people," he said. "My concern now is to move on."

The dismissal came almost a week after the acquittals of Restivo's and Halstead's co-defendant, John Kogut, in a nonjury trial before Acting Supreme Court Justice Victor Ort. Kogut, 41, waived his right to a jury trial.

Assistant District Attorney Fred Klein said, "If we were not able to persuade one fact-finder ... it became clear to us that it would be much more difficult to persuade 12 fact-finders unanimously that [Halstead and Restivo] were guilty beyond a reasonable doubt."

The three men were convicted in 1986 but released in 2003 when newly discovered DNA - sperm on a swab taken from Fusco's body - failed to match their DNA profiles or anyone else known to police.

They remained under indictment although the DNA, said Klein, "significantly damaged" the case against them. Kogut was the only one to confess and implicate the other two, and during his second trial prosecutors speculated the semen was the result of the Lynbrook teen having consensual sex before the rape.

Klein acknowledged in court, however, that there was "no direct proof" of such an encounter. Restivo's attorney, Nina Morrison of the Innocence Project in Manhattan, said the DNA was part of "overwhelming evidence of actual innocence."

Legally, Kogut's statement could not have been used against Restivo and Halstead. But Klein said prosecutors concluded that if they couldn't get a conviction in Kogut's case, it was pointless to try the other two. They made only "ambiguous statements" about the crime to witnesses whose credibility was suspect, he said.

Klein said prosecutors also were saddled with Ort's finding that he did not believe the only physical evidence in the case - three hairs from Fusco that police said they found in Restivo's van - were ever in the vehicle.

While Donnino said he was not bound by Ort's conclusion, he called it a "significant finding" in evaluating the case against the others.

Afterward, Restivo, 47, and Halstead, 51, said the contention that Theresa Fusco had consensual sex undermines the prosecution of any future defendant matched with the DNA.

"Even if they get a hit now, how will they prosecute this perpetrator?" said Halstead, who called the consensual sex theory "a fantasy."

Klein, responding to charges of misconduct, said, "Before the DNA evidence came out, 24 jurors [in two trials] unanimously agreed they were guilty. They lost every appeal they had and if it wasn't for the good faith of the district attorney's office in consenting to new trials after the DNA evidence was finalized, they would still be in prison."

Staff writer Ann Givens contributed to this story.