Restivo v. Hessemann
846 F.3d 547
| 2d Cir. | 2017Background
- 1984: Theresa Fusco was raped and murdered. John Kogut confessed implicating himself, John Restivo, and Dennis Halstead; all three were convicted. DNA testing (2003) excluded Kogut, Restivo, and Halstead from the semen evidence; convictions were vacated and charges against Restivo and Halstead dismissed. Plaintiffs spent ~18 years incarcerated.
- Plaintiffs (Kogut, Restivo, Halstead) sued Nassau County detectives and lab personnel under 42 U.S.C. § 1983 and state law for malicious prosecution and denial of fair trial; suits consolidated and tried. First jury returned defense verdicts.
- District court granted Restivo and Halstead a new trial (Rule 59) based on inadequate jury instruction regarding use of Kogut’s confession to assess probable cause; a second trial proceeded with narrower claims against Detective Volpe and hair technician Fraas (planting hairs; suppression of the “French lead”).
- At the second trial the jury found Volpe liable (not Fraas) for malicious prosecution and fair-trial deprivation; awarded $18 million each in compensatory damages. District court denied setoff for State settlements, denied remittitur, and awarded plaintiffs’ counsel nearly $5M in fees. Volpe appealed; judgment affirmed.
- Central evidentiary disputes: admissibility and use of Kogut’s confession; admissibility of experts on post-mortem root banding (PMRB) and whether Q-hairs were planted; Brady (suppression) issues concerning the ‘French lead’ (jeans/rope found in stolen car).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court abused discretion in granting new trial (Rule 59) based on jury instruction about probable cause and Kogut confession | Restivo/Halstead: instruction was inadequate because it failed to limit how the jury could use Kogut’s confession when assessing probable cause | Volpe: Boyd forbids using evidence that later proves inadmissible in criminal trial to assess probable cause; new trial unnecessary | Affirmed new trial on alternate ground: instruction was misleading in context—confession was central and could unduly prejudice jury; temporal/probabilistic role of confession matters for ex ante probable-cause analysis |
| Admissibility of Kogut confession and other inculpatory statements at second trial | Plaintiffs: confession irrelevant to planted-hair/Brady theories and was excluded appropriately | Volpe: confession and admissions were relevant to rebut planting/suppression claims and to show probable cause | Trial court did not abuse discretion: excluded confession for the fair-trial/planting-Brady issues (not relevant for those claims); some statements excluded by hearsay/403 concerns |
| Admissibility of PMRB expert testimony and exclusion of defense statistician (Kadane) | Plaintiffs: PMRB experts reliable under Rule 702/Kumho and Koch study supports timing; allowed as specialized (non-Daubert) testimony | Volpe: timing not established with scientific certainty; experts improperly opined to degree of scientific certainty; Kadane was wrongly excluded | Affirmed: court permissibly admitted PMRB testimony under Rule 702/Kumho as specialized technical evidence (with limits on scientific-certainty claims); exclusion of Kadane for lack of relevant expertise and non-conducted analysis was not an abuse and any error was harmless |
| Brady / suppression of exculpatory “French lead” (jeans/rope) and its materiality | Plaintiffs: lead was exculpatory and material; officers suppressed it; supported by police-practices expert | Volpe: lead not exculpatory or was turned over; speculative value | Jury could reasonably find suppression and materiality; Fisher’s police-practices testimony admissible to show deviation from accepted practices |
| Conflict of interest (joint representation, county indemnification) | Volpe: joint/indemnified counsel had conflicts (defense preferred no-planted-evidence theory over blaming Fraas), depriving fair trial | Plaintiffs: no actual, serious conflict; interests aligned at trial; county had agreed to indemnify | No reversible conflict found: unlike Dunton, no actual adverse advocacy at trial; counsel’s unified defense did not require disqualification |
| Setoff of State §8‑b settlements and remittitur | Volpe: jury award should be reduced by $2.2M state settlements (avoid double recovery); remittitur needed because award excessive | Plaintiffs: state settlements under §8‑b are distinct (State not a §1983 defendant); federal policy disfavors state-law pro tanto setoff; award within reasonable range | Court held federal law is deficient on this specific setoff issue, rejected New York G.O.L §15‑108 pro tanto setoff as inconsistent with §1983 deterrence policy, declined offset (no setoff); remittitur denied—award not excessive |
| Attorneys’ fees (forum rates, hours) | Plaintiffs: full lodestar at SDNY rates justified due to NSB expertise; hours reasonable | Volpe: should use EDNY rates; reduce hours for block billing, noncontemporaneous records, work on unsuccessful claims | Affirmed: district court did not abuse discretion in applying SDNY rates (forum rule rebutted), found hours reasonable, and awarded ~$4.997M in fees |
Key Cases Cited
- Boyd v. City of New York, 336 F.3d 72 (2d Cir. 2003) (limited holding on use of evidence later excluded in criminal case to defeat malicious-prosecution summary judgment)
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (trial judge’s gatekeeping role for scientific expert testimony)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert gatekeeping extends to technical and specialized expert testimony)
- Bruton v. United States, 391 U.S. 123 (1968) (testimonial confession of non-testifying co-defendant inadmissible at joint trial under Confrontation Clause)
- McDermott, Inc. v. AmClyde, 511 U.S. 202 (1994) (allocation/setoff principles after settlement in admiralty context inform methods to avoid double recovery)
- Dobson v. Camden, 705 F.2d 759 (5th Cir. 1983) (discussing absence of clear federal rule on setoffs in §1983 context)