0:02

On December fifth, four, the

0:04

naked body of a sixteen year old girl was found

0:06

in a wooded area of lynn Brook, Long Island.

0:09

The victim had been last seen leaving her job

0:11

at a local roller rink about a month

0:13

earlier. The medical examiner

0:15

determined that the cause of death was ligature

0:18

strangulation and seamen found on her Baginal

0:20

swabs suggested that she had been raped. By

0:23

March nine five, authorities believed

0:25

that this rape and murder were connected to similar

0:27

disappearances, and investigators started

0:29

focusing on Dennis Halsted, who was

0:31

believed to have been associated with another

0:34

young woman who had disappeared. John

0:36

Restivo had been interviewed as part of this investigation

0:38

and mentioned that he was acquainted with John Cooked,

0:41

an occasional employee of his and his brother's

0:43

moving business. After COVID

0:45

was given three polygraphs, police

0:47

asserted that he lied when denying involvement

0:50

with the disappearance of the sixteen year old victim.

0:52

He endured twelve hours of aggressive interrogation

0:55

and eventually he cracked and signed

0:57

a confession that was handwritten by one

0:59

of the detectives. The sixth version

1:01

of events given by COVID, containing

1:03

information all of which was previously

1:05

known to investigators. According

1:08

to COVID's false confession, the victim voluntarily

1:10

got into Restivo's van, where Covid

1:13

and Halsted stripped her and Halsted raped

1:15

her. Further into this coerced

1:17

statement, he said that when they arrived

1:19

at a cemetery, Restivo also

1:21

raped her and Covid strangled her. When she regained

1:24

consciousness and became frantic. With

1:26

the false confession, that a number of hairs

1:28

found in Restivo's band said to have matched

1:31

the victims, the three men were tried

1:33

over the course of nine six John

1:35

Covid was tried separately and convicted

1:37

of rape and murder in March, Thenis

1:40

Halsted and John Restivo in November.

1:43

Through the concerted efforts of Centurion Ministries,

1:46

Paced Law School's Post Conviction Clinic, Private

1:48

Council, and the Innocence Project, that defense

1:50

used police department property records

1:52

to finally locate and test intact

1:55

vaginal swaps for DNA in two

1:57

thousand and three, ultimately

1:59

excluding the three men as the perpetrators.

2:02

John Restivo spoke with US at the Atlanta

2:04

Innocence Network conference to tell their horrifying

2:07

story. Together, they

2:09

spent over half a century in prison

2:11

for a crime they did not commit.

2:14

This is rawful Conviction with

2:16

Jason plom

2:25

Welcome back to Wrongful Conviction. I'm

2:28

especially excited today because

2:30

I've got a guest who I've wanted to have on

2:32

my podcast from long before I even

2:34

had a podcast. So um,

2:36

ever since I read your story in The New Yorker,

2:39

John Restivo, I've

2:41

been sort of in awe of your your

2:44

story, your your case, your everything. So

2:46

I'm really I'm really happy you're here.

2:49

Yeah, what a long, strange trip has been. Yeah,

2:51

how about it? And like I always say, I'm sorry

2:53

you're here, but I'm happy you're here. So um

2:56

and with you. Nina Morrison is

2:58

a return guest on this Year Is Today. Nina is

3:00

the senior staff attorney at

3:02

the Innocence Project in New York. Um, welcome

3:05

back, Thank you, Jason. It's always

3:07

so nice to be here, and this is gonna

3:09

be an amazing experience

3:11

for me, I think for everyone who's listening as

3:13

well, mainly because of you, John.

3:16

So let's get right into it. So and

3:18

yours is a New York case, right, which

3:20

is which makes it personal to me as

3:22

a New Yorker. A lifelong New Yorker, and

3:25

just by way of background, John was convicted

3:27

of a rape murder along

3:30

with two other innocent men and sentenced to thirty

3:33

three and a half years of life. Could well have been

3:35

executed if not for Governor Mario Cuomo

3:37

blocking repeatedly the death

3:39

penalty in New York State. I think

3:41

that's an important thing to touch on. But let's

3:44

go back to it. All these crimes we talked about are

3:46

horrible. This one is particularly terrible,

3:49

right. This is the rape and murder of a young girl,

3:51

sixteen year old girl. And

3:54

obviously everybody wants to see those

3:56

crimes solved, but they don't want to see

3:58

it solved this way. I mean, when we get the wrong

4:01

people locked up. Whoever it is that did

4:03

this was free to commit other heinous crimes.

4:05

But take us back to the crime itself.

4:07

And how did you first hear about it?

4:10

I mean, you were at the time, you were in the moving

4:12

business. What were you doing? Yeah, I was inna moving business

4:14

with my brother, right, And

4:16

when young lady disappeared, we had seen

4:19

articles in newspaper there was missing

4:22

persons flyes on

4:24

different store windows or telephone poles.

4:27

So people in the community knew

4:29

that the young lady who was a mission which town

4:32

was this just was in Linbrook, New York,

4:34

in Nashville County, all Ang Island.

4:36

Yeah, And there was a couple of articles

4:39

in the newspaper. So approximately

4:41

three weeks later, a body

4:44

is found and it's identified

4:47

as being her body, and

4:49

now instead of being a missing person's

4:51

case, it's a homicide. And this

4:54

case, it's got so many layers because

4:57

you have three guys with

5:00

makes it really especially tragic because

5:02

the other two guys that were convicted of the same time

5:04

that you were convicted of were just as innocent as you were. But one

5:07

of them confessed, and we know how

5:09

that goes as well. But every one

5:11

of those even inside of that false

5:13

confession, there's a lot of nuance

5:15

to those situations. Do you want to talk

5:17

about that? Because I was a guy named Kogut

5:20

right, Well, part of the problem with

5:22

the introgation process

5:24

that he was put through is that

5:26

the police lied to him. And

5:29

I understand, okay, the police are allowed to lie

5:31

to you, but he took a lie detective test

5:34

and the police told him

5:36

he failed the lie detective

5:38

tests. And we had

5:40

experts that actually viewed

5:44

the you know, the Polly charge,

5:46

and our experts said that

5:49

you know, he didn't lie, right, that he

5:51

was telling the truth, but the detectives

5:53

used that as a tool against

5:56

him. You know, while this guy is

5:58

being you know, he's in a small room with

6:00

a couple of these let's call him thugs because

6:03

that's what they are. Don't get me wrong. I'm not

6:05

calling all police thugs. We need

6:07

the police, and I'm not saying that and

6:10

and that's yeah, so I'm not a calling

6:13

roll police bad. But so

6:15

they held that over his head, saying that,

6:17

okay, you lied during the polygraph

6:20

test, which was an actual

6:22

lie. I mean, they will lie into him, right,

6:25

and they're polygraph

6:27

expert said, well,

6:30

I don't really go by the charts.

6:33

I go by the person's demeanor while

6:35

i'm giving them, while I'm giving them the test.

6:38

It's just it's just a tool they're using to interrogate

6:41

someone. It's not and polygraphs are not you

6:43

know, people can debate whether they

6:45

have any utility for determining if

6:47

someone is or is not telling the truth, but

6:51

police have used them for decades as

6:53

part of what they the experts

6:56

now call it guilt presumptive interrogation where

6:58

they bring somebody in they've already

7:00

decided based on these subjective factors,

7:02

like I get a feeling he's not telling

7:04

me the truth, or they think they have other

7:07

evidence the person did it, And once

7:09

they decide that the person is guilty, the

7:11

interrogation is not a search for the truth, it's a

7:13

search for a confession. In the false

7:15

confession, right, everything

7:18

that the police had known, right,

7:21

every fact that they knew, right,

7:24

was incorporated into this confession.

7:27

Right, the young lady disappears in

7:30

early November. They're

7:34

interrogating COVID in early

7:37

March of night five,

7:40

And according to the police, in

7:42

this false confession, this

7:45

facts coming out of color

7:47

of pocket book, color of sneakers.

7:50

I mean things that no normal person

7:53

could ever remember. You

7:55

know, last week, what did you have for breakfast last

7:57

Monday? I mean, like every fact

8:00

was known, even like the piece of jewelry

8:03

that they recovered that she had

8:05

been wearing. Right, he supposedly

8:08

remembers the type of jewelry. And

8:11

since it was all fictitious to begin with,

8:13

right, every fact that

8:16

they knew was incorporated

8:19

into the false confession except

8:21

one thing. The police didn't

8:24

know. The color blouse or shirt

8:26

that she was wearing on the night she disappeared,

8:29

and that's the only thing that wasn't incorporated

8:32

into this false confession. So, according

8:35

to all of the experts, they

8:37

considered as a classic false

8:39

confession because no normal

8:41

person would be able to actually remember

8:44

all of these facts. There was just too many facts

8:46

incorporated into this confession for

8:48

it to be reliable. Okay, now we know that

8:51

COVID confessed, but

8:53

how did that lead to your case

8:57

being brought to where it went and ultimately

8:59

to you being that it almost executed the

9:01

police? They incorporate my name

9:04

and Dennis's name into the false

9:06

confession because in a way,

9:08

the police had us labeled

9:11

as suspects. I

9:13

don't believe that we were labeled as

9:15

targets. I personally believe

9:17

that they were going to frame us one

9:20

way to other. Right when Dennis

9:22

I wouldn't have a clue. I wouldn't have a

9:24

clue after COVID confessed

9:27

falsely confessed. Now

9:29

my family retained a private investigator.

9:32

We're trying to figure out where

9:34

I was on a night this younger lady disappeared.

9:37

We figured out where I was through receipts

9:39

because I had just purchased the house, and that weekend

9:42

I was standing in the floors. I was an house all

9:44

night, died evening. I was on the phone

9:46

with my girlfriend, who was pregnant. We were putting

9:48

Polly, you're thing on the floor, so she was pregnant.

9:50

She putn't be an house. She was out of mother. So

9:52

we had phone records, we had receipts, so we knew

9:54

exactly where we were where I was right,

9:57

and Dennis was with his kids

9:59

and another town, and Kobe was at

10:01

a birthday party in another town. We

10:04

didn't even lay eyes on each other that

10:06

whole weekend. And beyond that,

10:08

the three of us were never together in

10:10

that van as a

10:12

threesome ever, And we

10:15

all had independent alibis. And

10:17

by the time we got the trial, they took

10:19

my independent alibi witness because

10:21

the guy who was helping me, he was a friend at the time.

10:24

He was helping me sand the floors, right,

10:26

He was at the house all night.

10:29

The cops picked him up up the street. They

10:31

bring him in for ten or twelve hours,

10:34

and they tell him that, well, if

10:36

you don't tell us what we want to

10:38

hear, right, you're gonna end up in jail with them,

10:41

So they've actually flipped my

10:43

independent alibi witness

10:45

from my witness today witness,

10:48

and he actually gave damage and testimony

10:51

against me at trial and

10:53

at the civil trial, during

10:55

his testimony, the judge actually

10:58

stopped the proceedings, had

11:01

the jury removed and

11:03

told him that you're on the

11:05

borderline of being charged with perjury

11:07

here because he had changed his testimony

11:10

so many times, right, And

11:12

when he testified at the criminal trial,

11:15

he lied, right, but they wouldn't give us

11:17

his original grand jury testimony.

11:20

So it was always my opinion that

11:22

his testimony was different from what

11:25

he testified at the grand jury to what

11:27

he testified two years later at

11:29

the criminal trial, because during that time

11:31

span, the cops put so much pressure on

11:33

his dude and flipped them. Yeah, I

11:35

mean, he was in an impossible situation. It

11:37

doesn't excuse what he did, No, you're

11:39

right in the way, I felt bad for him

11:42

because he was stuck in the middle

11:44

of this, right, and he's under

11:46

this tremendous amount of pressure by

11:49

the police, and he's being told,

11:51

well, if you don't tell us what we want to hear,

11:53

you're gonna end up in jail with him, and he sees

11:56

innocent people in jail, right,

11:58

and he sees how easy was but the

12:00

police to do that. Exactly. He knows what they're

12:02

capable of because he already knows you're innocent and he

12:04

knows what they're doing to you. So there's no reason to not believe

12:07

that they would do the same thing, right. And

12:09

then we had the other problem with

12:11

the police planting evidence

12:13

in the van, and the judge

12:16

was that it was a bench trial, so the judge concluded

12:19

that the hedge that they intimated

12:21

that were found in my van would

12:23

never in the van, right. And

12:25

you know, let's talk about that because that is

12:28

even by the standards of some

12:30

of the crazy ship that we see in

12:33

this line of work. That's going

12:35

even beyond some of the misconduct,

12:39

you know, this is so far. They were literally

12:41

pulling hairs from the corpse

12:44

and then taking those hairs and putting them

12:46

in the van. Like who does a thing

12:48

like that? Well, who does it? Are police

12:50

who are desperate to solve a

12:52

crime that has the community absolutely

12:55

terrified and up in arms. So what John talked about

12:57

earlier about the flyers around town, I mean this was

13:00

the mid eighties, you know, bedroom

13:02

community suburban Long Island. The

13:04

young woman who was killed in the case that John

13:07

was falsely convicted in her name is Teresa Fusco.

13:10

Was actually one of three young women

13:12

that went missing around that time, and the

13:14

other two to this day, those crimes have never been solved,

13:17

and for all we know, it may have been the same killer

13:19

or killers in those cases. But

13:22

by the time Teresa disappeared, she was missing

13:24

for what was it, John three weeks every

13:26

week, about three weeks before her body was found.

13:29

So the terror and the paranoia

13:31

that they're feeling in this town is only heightening.

13:33

And the parents that elected officials, the teachers

13:36

are saying, solve this crime, solve this crime. And

13:38

after she was found naked, brutalized

13:41

in the woods, just a horrible way to go. You

13:43

know. The police spent months basically

13:45

bringing in every working class guy

13:48

between the ages of eighteen and twenty nine

13:50

in town in and working them over, trying

13:52

to see if they could find a weak spot until

13:54

they get poor John Kovid, who had had a really rough

13:57

life grown up in foster care. Nobody

13:59

to fight for him, and even he held

14:01

out for hours and hours till he finally confessed. You

14:03

know, and gave a false confession that, as John said, was

14:06

a classic false confession and that it had

14:09

no information that the police didn't

14:11

already know, so he couldn't point them

14:14

to clothing or jewelry or

14:16

fruits to the crime, or anything about

14:18

her that wasn't part of the police's knowledge.

14:20

But everything they did know almost

14:22

two perfectly. But when it came to the hair.

14:25

As part of what was wrong with this case

14:27

when they decided they were going to pin it on John

14:29

and his two friends, is that they had

14:31

no physical evidence. There was no evidence against

14:33

them, no DNA, no blood typing,

14:36

nothing of hers that was ever found with

14:39

them, no eyewitnesses as far

14:41

as anybody knew at the time, who had seen one vehicle

14:43

she'd gotten into, and she was leaving her job

14:45

at a roller skating rink. And

14:48

you know, we don't say lightly that police

14:50

framed people. I mean a lot of times police will

14:52

make bad mistakes, they will cut corners, they

14:54

will interview witnesses in a way that's

14:56

not ethical or permissible. But

14:58

in this case, there is actual scientific

15:00

evidence that John and his co defendants got framed,

15:03

namely Detective Vulpie to lead

15:05

homicide detective claimed that he

15:08

found several hairs when

15:10

he finally got a search warrant for John's

15:12

van when he used for his moving jobs, he

15:15

claimed that he found several hairs

15:18

that were long hairs, looked just like Teresa's

15:20

and microscopically appeared

15:22

to be the same as Teresa's hairs. I mean, later tod DNA

15:25

and confirmed that they were in factor hairs. So that would

15:27

be pretty bad evidence, and normally you'd think, well, that makes John

15:29

guilty. The problem was those

15:31

hairs would have had to be deposited in the van

15:33

during this period when John and his

15:35

friends were alleged to have abducted her for

15:38

just a few minutes. According to the confession, they had given

15:40

her a ride and then raped her, and she was

15:42

in the van for not longer, certainly no more than an hour,

15:45

and then she was missing for several weeks. But

15:47

the hairs came from a corpse. They had

15:50

this decomposition at the roots

15:52

of the hairs called post mortem

15:54

root banding, which basically happens when hairs

15:56

are attached to a corpse that's decomposing, and

15:59

so detective all he takes these hairs and

16:01

whether he planted them in the van or just put

16:03

him in an envelope marked hairs from van that

16:05

was back at the lab. We don't know, it doesn't

16:07

really matter, but he lied under oath and

16:09

said that these hairs came from the van, and it's

16:12

physically impossible because she had been decomposing

16:15

for several weeks when these when these hairs were

16:18

collective, they were from her autopsy, not from the van. I

16:20

do believe that most people that are doing

16:22

those jobs are doing the best they can, and

16:25

we need police to keep us safe. But when

16:27

you get somebody like this vulpy character

16:30

who does the type of damage that he did, they

16:32

have to be held to account. I mean, these detectives

16:35

actually created a fictitious

16:37

scenario after they actually botched

16:40

what we think was the actual

16:43

crime scene. And unbeknownst

16:45

to us, the night she disappeared,

16:48

a car within approximately

16:50

a mile of where she was last seen

16:52

was stolen, and

16:55

when this car was recovered approximately

16:58

a week later, they

17:00

found a pair of blue

17:02

striped jeans with

17:05

one of the legs inside out in the back,

17:07

but the stuffed underneath the sea and

17:09

on the missing persons report when

17:12

she was last seen, that's what she was

17:14

wearing. Blue stripe jeans.

17:16

So the homicide cops grabbed his

17:18

car, right, which was already

17:21

cleaned by the owner, and

17:23

the blue stripe jeans were thrown out

17:25

by the Limber police department. So there

17:28

was police reports regarding

17:30

the stolen car and the blue

17:32

striped jeans, right,

17:34

And then there was a piece of rope missing from

17:36

the car. And according to the m

17:39

E. Right, there was a piece of rope

17:41

similar used as what

17:44

would you say, the murder weapon, right,

17:46

and this was missing from the car. When

17:49

they brought the owner back to the area

17:51

we had the car were recovered, they found

17:53

the piece of rope, but they took

17:55

a picture of the piece of rope. And

17:58

one would think that given

18:00

the significance of that this piece

18:02

of rope would be taken into evidence

18:04

and vouching, and the police say it never

18:06

was. So this is information

18:09

that should have been turned over to the defense,

18:11

and the never was. And we never found out

18:13

about this information until

18:16

we were in the civil litigation

18:18

stage twenty something years later.

18:21

Correct, I was John's Innocence project

18:23

lawyer. We didn't know about this

18:25

information. You know. A lot of times as

18:27

you know, and a lot of your guests have talked about there's

18:31

evidence pointing to someone's innocence, and

18:34

you know, certainly in this case, this is evidence

18:36

about where the crime occurred and what

18:38

type of vehicle was used, which is a huge

18:41

objective lead. That's different

18:43

than the entire case that was against John and

18:46

his co defendants, but that

18:48

is evidence. Often we learned about that when

18:50

we're in post conviction, meaning the person has been convicted

18:53

and we're litigating their appeals and we're trying to exonerate

18:55

them. In John's cases, I'll tell you

18:58

we cleared him with DNA and

19:00

other evidence that we gathered as part

19:02

of the Innocence Project and Centurion Ministry's

19:04

investigation of the case, But we

19:07

didn't even know about this other evidence

19:09

the police had of his innocence until after he was

19:11

exonerated. It only came out when he

19:13

had lawyers representing him in his lawsuit against

19:16

the police department in the county that this

19:18

all came to light. So it's a really stunning fact

19:20

that you can have evidence of innocence that's

19:23

hidden, possibly even from the d a's

19:25

because it was in the police file and only

19:27

come out after someone's exonerated. And so

19:30

his case is a DNA exoneration case, but

19:32

as with so many, there's other evidence that

19:34

could have cleared him even before he went to trial. As

19:49

the son of a police officer, this

19:52

must have been totally surreal to

19:54

you because as much as we all grew up

19:56

and when I was a son, I had, you know, ideas that I

19:58

would become a policeman, right, I mean, you

20:00

know, we all look up to firemen and cops.

20:02

I think most boys do, especially growing

20:04

up right, um, in the year that we

20:06

grew up in. But for you, it was a very

20:08

personal thing, right. You must have been very proud

20:10

to have a dad it was a cop, I would think, right,

20:13

I mean I would be. But then at

20:15

the same time I would expect that

20:17

you must have thought that, because

20:20

of the fact that your dad was in

20:22

blue, that this wouldn't

20:24

happen to you, right, And was your dad

20:26

around? Was he alive at this time? My father passed

20:29

away in January four so

20:31

he wasn't around. But

20:34

my father said something to me at

20:36

one time while he was on the job, and

20:38

he told me, if you ever have a problem

20:40

with the top coal

20:42

oil. And

20:45

when the police brought me in and

20:48

interrogated me for twenty

20:51

plus hours, Once I was released,

20:53

I immediately why don't you

20:56

call her? At first, they wouldn't let

20:58

me leave, they took my cockeys. I mean, they would

21:00

let me call the layer. You know I was there. I mean,

21:02

they weren't letting me go anywhere.

21:05

And finally they let me go, and after

21:07

twenty hours I was so out of it. They wouldn't even

21:09

let me drive home. They drove me home and

21:12

drove my call. There's

21:14

so many things wrong with this that I'm just like,

21:16

no, this is a complicated case.

21:19

There's no doubt about it, and uh,

21:29

I'm just glad it's over it. But what

21:32

the cops did to me, right,

21:34

it's unfortunate that they

21:36

can do to whoever they please. I mean,

21:39

they could. They could pick somebody out of a group,

21:41

right and make them a target,

21:44

and then they fabricated case around

21:46

them, and that's exactly what they did to us.

21:48

But but from day one, I requested

21:51

DNA testing, and back in the eighties mid

21:53

eighties, there was no DNA testing, and

21:55

back in we

21:58

had three different d N eight has

22:00

done. One was inclusive, the two other

22:02

ones excluded us. And back in

22:05

I thought we were going to get loose. I

22:07

thought that was going to be the end of the gospel. That

22:09

wasn't the case. The judges should have been one of the first

22:12

DNA gulantarmies in the country because he was

22:14

going in pro sae and he had a lawyer

22:16

who was helping him out for some of that

22:18

time, you know, early on, and he's

22:20

incredibly smart, and he was researching

22:23

and filing his own emotions. He had a

22:25

DNA test from sperm from a sixteen

22:27

year old girl who was

22:29

a virgin that didn't come back

22:31

to him or Dennis or John Cookeett,

22:34

and the d A said,

22:37

it doesn't matter. It could have been a fourth guy,

22:39

right, fourth guy, there's a third guy. There's

22:41

no second guy. There was one guy. It

22:43

was his sperm and it wasn't any of these guys. And

22:46

he goes to court and the judges back

22:48

then weren't as educated as they are now about DNA

22:51

and what it shows, and you know, he

22:53

had different lawyers and they

22:55

said, sorry, not giving you a new trial.

22:58

And so there he was, you know, the mid nineties,

23:01

starting at square one again. Let's just reflect

23:03

on that for a second too. So you prove with

23:06

DNA that you were innocent and

23:08

They're like, that's right, doesn't matter. I

23:10

think probably everyone at home is experiencing

23:12

the same or in your car orerever

23:14

you're listening the same thing that I'm

23:16

experiencing, which is that wait a minute, that sounds like a misprint

23:19

or a misstatement that can't really be true.

23:22

The prosecute is actually lied. In their

23:24

papers about the reliability of tests.

23:27

They insinuated that the test results were

23:29

not reliable, which is ludicrous

23:32

because there's two independent

23:35

tests done by two independent

23:37

labs, and they identify

23:40

the same exact DNA

23:42

profile. So if one layer

23:44

made a mistake, how could the

23:46

other lab, independent lab make

23:49

the same mistake and identify

23:52

the exact same DNA

23:54

profile. So when they argued in their

23:56

papers that the tests weren't reliable,

23:58

I mean, that was totally ludicrous,

24:01

and the judge adopted older

24:03

is insanity. And then and

24:05

then, if I remember correctly, after

24:07

they realized they weren't getting anywhere for a while, the judge

24:10

was getting skeptical of the reliability argument.

24:12

Then they said, well, the only thing that

24:14

was tested for this last round was off of a

24:16

vaginal slide, which is a glass

24:19

slide that the medical

24:21

examiner autopsy makes from the cotton

24:23

swab that was actually had most

24:25

of the sperm and the semen on it, and it

24:27

was just the one part of the slide.

24:30

So maybe these

24:32

three guys who we convicted, maybe their DNA

24:34

was on the rest of the slide or on the swabs,

24:37

and we just don't have enough material. So you

24:39

had to believe two things. One that the test

24:42

was missing all of their DNA, but also

24:44

that they had some crime partner. This mystery

24:47

John Doe, who was the fourth guy

24:49

whose name didn't come up in the confession, didn't

24:52

come up from any of the informants, didn't come up from

24:54

any of the witnesses, you know, who everybody

24:56

had been covering up for this last ten years,

24:58

which was absurd um, but the courts

25:00

bought it. And so then they basically

25:03

gave John a challenge which was proved

25:05

us wrong, proved to us that your DNA is not really

25:07

there, And then we did that right

25:11

in two thousand and one, there

25:13

was a small portion of sample

25:15

left and they retested

25:18

it using new methodology

25:20

where they would be able to run that result

25:23

through the federal and state databases,

25:26

you know, through quotas, right,

25:29

and again when they tested that it

25:31

comes back matching the same DNA

25:33

profile that came back in the nineties.

25:37

Yeah, and they ran it through code is

25:39

hoping that they would get a hit, right,

25:41

And since they didn't get a hit, they're

25:43

still maintaining that it's not

25:46

reliable. Then

25:49

in two thousand and two, I met

25:52

Nina Marson, and

25:54

I p took on more involvement

25:57

in the case right and got us

25:59

old in pendant lawyer's right.

26:01

They got lay's for Dennis, they got lawyer's for John.

26:04

And in early two thousands and three

26:07

and Nina and a couple of the lawyers

26:09

went to inventory evidence

26:13

that the police had and

26:15

lo and behold for photos and

26:17

maps. We were looking for some old photos related

26:19

to another part of our investigation, and they wouldn't

26:22

just send us the photos, so we said, find can we come look

26:24

through the boxes? So we're out there with an assistant

26:26

to a who was near to the office, relatively new and

26:28

she said, YEA, let's just go look through the boxes. It's

26:31

go ahead time. So Nina or Neil

26:33

Deloise they opened up the boxes

26:35

and they're going through the boxes and will behold,

26:37

they found a plastic envelope with

26:40

a glass tube in it and a swab

26:42

in it, and it has the

26:44

case number and Teresa fust goes name

26:47

on it, and it's vouched by Volpi

26:49

and after day insinuated all

26:51

of them is that there's no samples left to be

26:53

tested. It was right there in the box,

26:56

you know, in the d a's officer and a police headquarters

26:58

wherever they were, and Nina scene

27:00

is and the acene is and

27:02

and now they had to collaborate.

27:05

Okay, now where are we going to send this to have

27:07

it tested? And they sent it out to have

27:09

it tested. And this is a sample that

27:12

was never touched, so it's in pristine

27:14

condition. And if

27:17

anybody had raped her that

27:20

that DNA is going to be on there. So they they had

27:22

said for years, well the other guys, you know, John

27:24

and his co defendants, their DNA was there. We

27:27

just burned all the samples, so we can't protest

27:29

it now. And then suddenly we had this big

27:31

intact swab that everybody said was gone

27:33

for fifteen years. It was

27:36

finally available, and not surprising

27:38

to any of us, we tested it and guess what,

27:40

it's the same guy whose profile

27:43

has been coming up again and again, but this

27:45

time because it was such an example the

27:47

D's office. Finally, you know that, plus

27:49

a whole lot of other evidence we gathered. Um,

27:52

we went out and made a presentation to them, a

27:54

whole coalition of people that really did take a village.

27:56

It was my very first Innocence

27:58

Project case. I was a young lawyer, very

28:01

motivated, shall we say, and I

28:04

still am, but you know I was. I

28:06

was very invested in this one, and a whole bunch

28:08

of US Centurion ministries even since project to del

28:10

Bernard and then my old law school classmate

28:12

Terry Moroney, who was a lawyer at a big

28:14

firm. We all we all did this big presentation

28:17

with Barry check together and got them

28:19

to finally agree. They actually caved in and agreed we didn't have

28:21

to go to court. They agreed to throw out their convictions.

28:31

You had a kind of a bright

28:33

future at the time, right, you had a pregnant

28:36

girlfriend. Right, you had a good job.

28:38

Right, Um, you had a career that was

28:40

growing, and all

28:42

of a sudden you're accused

28:45

and ultimately convicted of the

28:47

worst crime that anyone could be convicted

28:49

up right, I think, which is the rape and murder of an underage

28:52

person child at a teenager or whatever. How

28:54

did you deal with this? And then you had

28:56

to go through this eighteen years in

28:58

the maximum security is I

29:00

mean, can you chick us through that in

29:03

the beginning? And turned my life upside down. I

29:05

turned my family's life upside down. But

29:08

that being said, my family

29:11

always supported me. Right, my

29:14

original trial lawyer always supported

29:17

me, and everybody always believed in my innocence.

29:20

And I had the one

29:22

thing going for me that I knew that

29:25

not only was I innocent, that

29:27

I was framed because I watched

29:30

the evidence come out during the course

29:32

of the trial. Right, so I

29:35

knew that I was framed. Now

29:37

it was up to me to prove

29:39

all it is. So I

29:42

end up in a penitentiary, and

29:45

I started going to the law library

29:47

and I started teaching myself how

29:49

to use the books. I taught myself

29:52

how to become a legal writer. I

29:54

don't want to say a legal scholar, but

29:57

I became a legal writer.

29:59

And I started writing and writing, and

30:01

I started writing lettuce to all kinds

30:04

of organizations or individuals

30:06

seeking help. And I

30:09

wrote since showing ministries in

30:13

seven and started corresponding

30:16

with them. And then I started corresponding

30:18

with the Innocence Project, and

30:20

you know, there was a lot of setbacks, you

30:23

know, like because originally, when we expect the DNA

30:25

testing that this returns office

30:27

refused to do it. This is no way

30:30

we're not going to do that. And this was in

30:33

the late eighties because DNA was first

30:36

used in a criminal case. I think

30:38

it was or

30:40

nineteen eighty nine, something like that, and

30:43

I think it was an old Encounty case. And

30:45

so I wrote my lawyer, I mean, if they're gonna use

30:47

this to convict somebody, why can't we use

30:49

this to exonerate us? Right?

30:52

And I got letters signed

30:55

by John by Dennis

30:57

agreeing to have this DNA test done

30:59

in my lawyer correct,

31:02

right, because I'm not doing this just for me.

31:04

I mean, this is a frame job, it's not like so

31:07

we all agree, and my lawyer

31:09

filed emotion. The judge denied it, and

31:13

then my lawyer went on his own

31:15

writing campaign to the d A and

31:17

finally, on the eve

31:20

of when New York State Legislature was

31:22

getting ready to sign the post conviction

31:24

Statute for forty to allow

31:27

DNA testing, the prosecutors

31:30

or the d A S office finally

31:32

agreed to do the DNA testing,

31:35

and that's why the DNA testing occurred in Otherwise,

31:39

if that legislation wasn't gonna be on the books,

31:41

that would probably continue to refuse it,

31:44

even though you know, people at that point

31:46

were being exonerated because of the results

31:48

of DNA tests. These people

31:50

fought tooth and nail against

31:53

this DNA tests, and then we finally

31:55

got the DNA test of going that justud

31:57

finds it unreliable, like we've mentioned before.

32:00

But you know, I always had this hope, right

32:02

and then you know, things started full and together

32:05

with more people who getting involved, and

32:07

the more people that I got involved were

32:10

more confident. I felt that I

32:12

was gonna one day be vindicated.

32:15

But let me ask it. I mean, I guess what I'm trying

32:17

to figure out is it

32:19

seems like it would have been really

32:23

easy for you to either give up or get

32:25

consumed by anger, because this

32:27

was not a situation where it was a mistake.

32:30

This was a situation where you were deliberately

32:33

prosecuted and persecuted by people

32:35

who did you incredible harm

32:38

and also denied justice to the

32:40

family who must have been fucking

32:43

devastated. I mean, like, as

32:45

a father, can't imagine you know

32:47

what they went through, and then there's no justice for them

32:49

either. So is there

32:51

a secret that you could share that allowed

32:53

you to sort of find this extra gear and

32:56

instead of banging your head against the wall

32:58

or doing whatever you you channeled. This seems

33:00

like this is gonna this is gonna sound strange,

33:03

but I still use this line today.

33:06

It could be worse. Right, and

33:09

I was facing a level of

33:11

adversity that the average person

33:14

could never understand. Well,

33:16

I was inside. I

33:18

read a lot, but I didn't read you

33:21

know, novels. I

33:23

read a lot of nonfiction. I

33:25

read a lot about World War Two. I

33:27

read a lot about POWs.

33:30

So I'm putting in my brain

33:32

like, okay, me doing his life

33:34

sentence to somebody didn't do, how does

33:36

that compare to an eighteen year old kid

33:39

that is pushed onto the beach

33:41

Normandy and you know, lives

33:43

for five minutes and he's gone, right,

33:46

or a pow in the

33:48

Philippines that is being

33:51

tortured every day. So I'm putting

33:53

my adversity and kind of in

33:55

kind of perspective of, you

33:58

know, adversity that other people in

34:00

worse situations that I was in. Right

34:02

at least I was getting, you know, three meals a day.

34:05

I wasn't being physically taught. You

34:07

nobody was pulling my fingernails out. I

34:09

put it all on perspective of you know, appere

34:12

W and the Philippines or appeal W and Vietnam

34:15

and and I got it in my brain. Well, at

34:17

the end of the day, I don't belong here, but

34:19

it could be worse. John's too modest

34:22

to talk about this, but I'm going to say he also

34:24

spent a lot of time when he was in prison

34:27

trying to make it a less horrible place

34:29

for other people, and also helping

34:32

people on the outside. So among the many things

34:34

he did, like when I first talked his prison counselor,

34:36

she would just blew up my

34:38

phone with oh my god, John, He's just incredible.

34:41

I want him to go home, but what are we gonna do without him? He

34:43

was a HIV AIDS counselor for

34:45

other inmates, either on how to avoid

34:47

contracting the disease or helping him deal with their

34:49

diagnoses, even though he was a straight

34:51

band who was HIV negative. At a time

34:53

in the eighties and nineties when people were scared to talk about

34:56

AIDS, much less work directly with people

34:58

who were affected. He worked with mentally

35:00

ill and made the guys that everybody thought was crazy

35:02

and we're prized at the prison, and

35:04

he was just trying to help them get the medication they

35:06

needed and the support they needed. And then

35:09

people on the outside, I know people

35:11

who John was like their phone buddy,

35:13

you know, family friends and young nieces and nephews

35:16

who he would just call once a week and like talk

35:18

them through their problems in school and their issues with their

35:20

families. You know, all the while he's facing the

35:22

most unimaginable thing any of us

35:25

I think we could go through um and that's just

35:27

a testament to who he is and how strong he is.

35:29

I'm glad you said that, because that is an awesome

35:32

thing to hear from me. I'm sure

35:34

many other people who are gone through whatever

35:36

they're going through to hear your perspective

35:39

on that. And here then Nina, you

35:41

know, adding in what you were too modest or

35:43

humble to talk about. It's

35:45

incredible. And I gotta tell you, John, you know it's true

35:47

too that I think I can speak for

35:49

Nina and almost any of the

35:51

other six hundred of us who are here at

35:53

the Innocence Network conference. Who are

35:56

part of the the network, right,

35:59

the activist lawyers, the social workers,

36:01

the people who are just obsessed with this stuff like

36:03

me. And the simple reason why is

36:05

because of people like you, and someone's made aware

36:08

of the quality of person that you are, and that I

36:11

would say the overwhelming majority of the

36:13

people, the men and women who have been exonerated,

36:17

what they're made out of. It's like it only inspires

36:19

us to want to do more. And and and that's why

36:23

for anyone who's ever asked me, you know why

36:25

you keep doing this, it's because of

36:27

people like you. So you know, Um,

36:30

what can I say? You have all my respect? Well,

36:32

I look at it from the other perspective

36:35

because and I appreciate

36:38

where you're coming from. But to

36:40

me, people who need issues,

36:43

they're my hero. People in your

36:45

shoes where you do for the movement,

36:47

you're my hero. And everybody

36:50

who supports this movement,

36:53

Da're my hero. Right because

36:55

if it wasn't for people like Nina and

36:57

people like you, write, I probably

37:00

still being at six eight John. I

37:02

just want to ask you one more question though, and then I am going

37:04

to get to the closing. So Um

37:08

interviewed Gloria Kelly on

37:10

on the podcast and she said,

37:13

um, she's an amazing, amazing woman,

37:15

very powerful presence and

37:18

wrongly convicted seventeen and a half

37:20

years. I encourage people to listen to her episode

37:23

of the podcast. But she said something

37:25

that, UM, I think is important to hear and I

37:27

want to get your perspective on that. She said to

37:30

anyone listening, if you don't think this can

37:32

happen to you, it can happen to you. Would

37:35

you agree with that most definitely? And

37:38

you could be walking down the street one day, just

37:41

minding your business and get surrounded

37:43

by cops and before

37:46

you know it, you're thrown into the system

37:48

and you don't have a clue as to what's going

37:50

on until all of a sudden you're brought

37:52

in front of a judge and you're

37:55

being charged with whatever,

37:58

and you're totally clueless as

38:00

to what happened. And and a lot of these

38:02

wrongful conviction cases, that's exactly

38:05

what occurred. I mean, because if so many

38:07

things that this can't happen to them, that's

38:10

totally wrong. Because being woefully

38:12

convicted can happen to anybody,

38:15

anybody, and it doesn't have anything

38:18

to do with raise gender

38:21

anything. And I wouldn't wish this

38:23

on my worst enemy to have to go through

38:25

something like this, because no matter what you

38:27

do, after you're exonerated, you

38:30

carry it for the rest of your life. I

38:32

mean, it doesn't go away. Well

38:34

yeah, you can't get back those years and

38:36

all the things that you missed, the birthdays, the family

38:40

stuff, just everything. I mean, nobody

38:42

can give you those back. If we could, we would. But

38:44

that being said, um, it's amazing

38:47

to see you making the most out

38:49

of it and you're in Florida. You're

38:51

enjoying some sun and some palm

38:54

trees or whatever it is down there, and

38:56

I'm really glad that things are going

38:59

your way. And now comes

39:02

my favorite part of the show, which

39:04

is that part of the show where I first of

39:07

all, thank both of you, Nina

39:09

Morrison and John Restivo

39:11

for joining me sharing

39:14

your thoughts on Rawful Conviction.

39:16

So thank you both for being here. And

39:18

now I get to sit

39:20

back and listen and just

39:22

leave the microphones on for final

39:25

thoughts. And I'm gonna

39:28

let Nina go first because it

39:30

would be appropriate for you to close the

39:32

the show, so you're bat and clean

39:34

up, so to speak. So anyway,

39:37

So Nina, Well I want to say, is you

39:39

know your listeners have gotten a flavor for who John

39:41

is and what he's gone through. But one

39:44

of the things that's really special about John is what

39:46

he's done after he's been

39:48

out um and how much he's done.

39:50

He's done a lot to help get

39:52

people registered to vote in Florida, to feed the

39:54

homeless, to make his community

39:56

better. And his personal journey

39:59

is told in this beautiful, beautiful feature

40:01

story in the New Yorker magazine by a

40:03

writer named Ariel Levy. And if people

40:05

google John's name and the title,

40:07

I think is the Price of a Life. And

40:09

it's all about the deep pain

40:11

and suffering that he went through. If if your listeners

40:13

are interested in the human toll

40:16

that wrongful convictions take. Ariel

40:18

told his story in a in a very revealing,

40:20

an intimate way, and I hope folks

40:22

will check it out. John. I

40:25

just take you one day at the time I wake up

40:27

in the morning, and I just say

40:30

to myself, no day in paradise.

40:32

I'm just glad to be free. And

40:35

if I can do something to help my

40:37

community, or if I feel or if

40:40

I see something that needs

40:42

to be done, I tried

40:44

to help, and I was

40:46

involved in two thousand and eight

40:49

in this huge voter

40:52

registration the thing

40:54

that we had going in Florida, and

40:58

we just got passed. We got

41:00

an amendment past where felons

41:02

are going to be allowed to vote. So

41:06

now we're gonna have to start getting felons

41:09

registered to vote for our

41:11

upcoming election. And when

41:13

I'm asked, I have a group of

41:15

friends, and when I'm asked to help, I'm

41:18

more than happy to help. And I

41:20

want to thank you for having

41:23

us. Yet all I can say

41:25

is thank you both again, and thank

41:27

you all for listening, and I'll see

41:29

you next week on Wrangful Conviction. Don't

41:38

forget to give us a fantastic review wherever

41:41

you get your podcasts, it really helps.

41:43

And I'm a proud donor to the Innocence

41:46

Project and I really hope you'll join me in

41:48

supporting this very important cause

41:50

and helping to prevent future wrong of

41:52

convictions. Go to Innocence Project

41:54

dot org to learn how to donate and get

41:56

involved. I'd like to thank our production

41:59

team, Connor Hall and Kevin Wardis.

42:01

The music in the show is by three time OSCAR

42:03

nominated composer Jay Ralph. Be

42:05

sure to follow us on Instagram at Wrongful

42:08

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42:10

Conviction podcast. Wrongful Conviction

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with Jason Flam is a production of Lava

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for Good Podcasts and association with

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Signal Company Number one