DNA-vindicated rapist loses civil trial against Nassau County

This case allows us once again to marvel at DNA evidence. It started in 1985, when a girl was raped and killed on Long Island. Three men were implicated in this crime; they each incriminated themselves during the investigation, and at least two of them did so in writing, including Kogut. They were convicted in criminal court and sentenced to bread and water for over 30 years in prison, but DNA testing led the DA's office to agree to vacate the convictions. Kogut was retried and then acquitted. His lawsuit against Nassau County presents issues surrounding the fairness of allowing the jury to hear the consolidated claims raised by the two other defendants at the same civil trial.

The case is Kogut v. County of Nassau, decided on May 14. The three defendants became plaintiffs, suing the County for civil rights violations surrounding their arrest and detention. Among other things, plaintiffs claimed the confessions were coerced. The district court ordered that their separate cases be tried together. At trial, the jury learned about the statements made by the two other plaintiffs that implicated Kogut. All lost at the civil trial.

Did Kogut get a fair trial?  "On appeal, Kogut contends principally that the evidence relating to statements attributed to Restivo or Halstead was not admissible against him at his criminal trials, and that the district court therefore erred (a) in denying his pretrial motion for separate trials and (b) in denying his posttrial Rule 59 motion for a new trial." District courts have discretionary authority to consolidate cases for trial. That gives Kogut an uphill battle on appeal.

And an uphill battle it is. The Court of Appeals (Kearse, Straub and Wesley) says plaintiff's first argument (that the district court gave no consideration to his interests in ruling on consolidation) is frivolous. More generally, the Second Circuit says that some of the arguments that Kogut raises on appeal were not asserted in the district court, he must satisfy the "plain error" standard of review, which in plain English means the trial was fundamentally unfair. He cannot meet that standard. He argues that incriminating statements that the other criminal defendants made violated his right to a fair trial, but those statements were not the only evidence that the police defendants had to prove Kogut's guilt, and Kogut did give a confession that the jury in the civil trial could have taken into account in finding probable cause to arrest him (even if the confession was coerced). The statements from the other criminal defendants were also relevant at the civil trial to prove the municipal defendants lacked any malice in arresting Kogut.

What we learn from this case is that some confessions are not real confessions, and that without DNA evidence, some people would still be in jail. We also learn that even a false conviction does not always result in civil liability against the police.