789 F.3d 36
2d Cir.2015Background
- In 1984 Theresa Fusco was murdered; semen found at autopsy later produced a male DNA profile that excluded John Kogut, John Restivo, and Dennis Halstead.
- Kogut gave a written and videotaped confession in 1985 implicating himself, Restivo, and Halstead; he was convicted in 1986 and sentenced to 37½ years to life. Restivo and Halstead were also convicted after separate trials.
- Post-conviction DNA testing in the 1990s–2003 excluded the three men; the County vacated all three convictions in 2003. Restivo and Halstead were not retried; Kogut was retried and acquitted in 2005.
- In 2006 Kogut and Restivo/Halstead filed § 1983 and state-law claims against Nassau County and investigators asserting malicious prosecution, due-process violations, and fabrication/coercion of confessions. The district court consolidated the actions and tried them jointly in 2012.
- At the joint civil trial the jury found for defendants on all claims; plaintiffs moved for new trials. The district court granted a new trial for Restivo/Halstead in part (on jury instruction re: probable cause) but denied Kogut’s new-trial motion and entered final judgment. Kogut appealed.
- The Second Circuit affirmed, rejecting Kogut’s arguments that consolidation and admission of third-party statements prejudiced him and that other procedural/evidentiary errors warranted a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court abused discretion by denying severance of Kogut’s claims from Restivo/Halstead | Kogut: joint trial admitted statements by Restivo/Halstead that would be inadmissible in a separate trial and prejudiced him | Defendants: statements were relevant (esp. to malice), not unduly prejudicial, and consolidation was proper | Denial affirmed; court reasonably found statements admissible for malice and no abuse of discretion in consolidation |
| Whether Boyd bars consideration of out-of-trial statements not admitted at criminal trial when assessing probable cause in civil malicious-prosecution claims | Kogut: relied on Boyd to argue such statements cannot be used to show probable cause and thus prejudiced him | Defendants: Boyd is inapposite; civil trial may consider evidence relevant to malice and prosecutors need not have introduced every item at the criminal trial | Rejected Kogut’s Boyd-based argument; Boyd’s context differs and does not preclude civil admission of additional evidence relevant to malice or probable cause |
| Whether admission of O’Hanlon-Halstead and other third-party statements violated Kogut’s rights or warranted a new trial | Kogut: those statements corroborated the confession and prejudiced jury | Defendants: the Confession (written & videotaped) was far more probative; third-party statements were largely irrelevant to probable cause and relevant to malice | Admission was not error or not prejudicial; review of the unraised trial argument for plain error fails; no new trial warranted |
| Whether inadvertent delivery of unredacted polygraph/prior-record documents to jury required a new trial | Kogut: jurors saw unredacted polygraph indicating deception and prior-criminal-history material; prejudicial | Defendants: documents were retrieved quickly; court gave curative instruction; jurors confirmed ability to follow instruction; no mistrial requested | No abuse of discretion in denying new trial; presumption jury followed curative instruction, no overwhelming probability of prejudice |
Key Cases Cited
- Boyd v. City of New York, 336 F.3d 72 (2d Cir. 2003) (distinguishes use of un-Mirandized or suppressed custodial statements in malicious-prosecution/probable-cause context)
- Manganiello v. City of New York, 612 F.3d 149 (2d Cir. 2010) (standards for abuse of discretion review)
- Lowth v. Town of Cheektowaga, 82 F.3d 563 (2d Cir. 1996) (definition of malice for malicious-prosecution claims)
- United States v. Olano, 507 U.S. 725 (1993) (plain-error standard)
- Old Chief v. United States, 519 U.S. 172 (1997) (abuse-of-discretion review for evidentiary rulings)
- United States v. Abel, 469 U.S. 45 (1984) (evidentiary rulings and impeachment evidence)
- General Electric Co. v. Joiner, 522 U.S. 136 (1997) (standard for reviewing admissibility of expert testimony)
- Greer v. Miller, 483 U.S. 756 (1987) (presumption that jury follows curative instructions)