Kogut v. County of Nassau

894 F. Supp. 2d 230, 2012 WL 3536717
CourtDistrict Court, E.D. New York
DecidedAugust 15, 2012
DocketNos. 06-CV-6695(JS)(WDW), 06-CV-6720(JS)(WDW)
StatusPublished
Cited by5 cases

This text of 894 F. Supp. 2d 230 (Kogut v. County of Nassau) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kogut v. County of Nassau, 894 F. Supp. 2d 230, 2012 WL 3536717 (E.D.N.Y. 2012).

Opinion

MEMORANDUM & ORDER

SEYBERT, District Judge.

This Memorandum and Order addresses only Defendants’ motion to exclude Plaintiffs’ hair experts and Plaintiffs’ motion to exclude Defendants’ statistician. For the reasons that follow, Defendants’ motion (Docket Entry 205) is DENIED except to the extent discussed below, and Plaintiffs’ motion (Docket Entry 204) is GRANTED.

BACKGROUND

These Daubert motions principally concern the phenomenon that the Court will refer to as “post-mortem root banding” (“PMRB”). The Court will discuss PMRB and its relevance in detail, but it first turns to the crime and prosecution underlying this wrongful conviction case.

I. The Fusco Homicide

On November 10, 1984, Theresa Fusco disappeared after leaving work at approximately 9:50 p.m. Her nude body was discovered five weeks later in a wooded area on Long Island, New York. In 1986, Plaintiffs John Restivo, Dennis Halstead, and John Kogut were tried and convicted of Fusco’s rape and murder. (See generally Pis. Opp. 2.)2

The only forensic evidence linking Restivo, Halstead, or Kogut to the Fusco Homicide at their 1986 criminal trials were two “questioned” hairs (the “Q8 hairs”) that Nassau County Police Department (“NCPD”) investigators purportedly recovered during a search of Restivo’s blue van [234]*234on March 26, 1985, almost five months after the murder. An NCPD analyst, Detective Charles Fraas, testified that the Q8 hairs were consistent with “known” hairs that were collected during Fusco’s autopsy. (See generally Pis. Opp. 2.) At Restivo and Halstead’s 1986 trial, prosecutors argued that the presence of the Q8 hairs in Restivo’s van proved that Restivo, Hal-stead, and Kogut used the van to abduct Fusco, rape her, and then, after strangling her in a cemetery, dump her body in the woods near the railroad tracks in Lynbrook — all within a span of a few hours. All three hair experts at that trial — Fraas and hair microscopist Nicholas Petraco for the prosecution and Peter De Forest for the defense — testified that they observed PMRB in the Q8 hairs.

DNA testing eventually excluded Restivo, Halstead, and Kogut as the source of the semen that was collected from Fusco’s body, and all three men had their 1986 convictions vacated. Plaintiff Kogut was re-tried in 2005. At the re-trial, prosecutors offered DNA evidence matching the Q8 hairs and a third hair also ostensibly collected from Restivo’s van (the “Q4 hair” and, together with the Q8 hairs, the “Q hairs”) with known hairs collected during the autopsy. After considering evidence related to PMRB, Judge Victor M. Ort was persuaded that the Q hairs were not actually left in Restivo’s van on the night that Fusco disappeared. (See generally Pis. Opp. 3.) Judge Ort acquitted Kogut, and the indictments against Restivo and Halstead were soon dismissed. Plaintiffs brought this wrongful conviction case shortly thereafter. (See generally Pis. Opp. 3-4.)

II. Post-Mortem Root Banding

Plaintiffs contend that PMRB evidence demonstrates that the Q hairs were in fact autopsy hairs that were planted among, or mistakenly mixed with, trace evidence collected from Restivo’s van. Plaintiffs’ PMRB experts — Max Houck, Nicholas Petraco (who testified for the prosecution at Halstead and Restivo’s 1986 trial), and Peter De Forest — propose to testify that PMRB is the emergence of opaque, ellipsoidal bands at the roots of hairs that have been removed from bodies that have been decomposing for at least several days. In Plaintiffs’ Experts’3 opinion, PMRB only develops while hairs are still attached to a decomposing body, and the banding takes several days after death to appear. This means, then, that if the Q hairs show PMRB, then they could not have come from Ms. Fusco during the short time she was alleged to have been in the van on the night she died. A more likely explanation, from Plaintiffs’ perspective, is that the Q hairs were taken from the autopsy table and placed with the trace evidence collected from the van.

In June, the Court held a Daubert hearing to determine whether and to what extent Plaintiffs’ Experts and Defendants’ statistician, Joseph Kadane, will be permitted to testify at trial. See generally Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The following is a summary of the proposed experts’ qualifications and opinions. Other relevant evidence, either adduced at the hearing or submitted with the parties’ motions, is addressed as appropriate in the discussion section.

[235]*235A. Max Houck

Houck is a forensic anthropologist and trace evidence analyst. (Pis. Ex. 1, Houck Expert Report (“Houck Rpt.”) at 14.) Among Houck’s professional and educational achievements are Bachelor’s and Master’s degrees in anthropology and a Ph.D. in applied chemistry. (Id.) From 1992 to 2001, he was a physical scientist in the FBI’s Laboratory Division, where he was assigned to the trace evidence unit. Later, he became the director of the Forensic Science Initiative (Research) at the University of West Virginia. He held this post until 2011. (Id.) At one point during his career, Houck chaired the Scientific Working Group on Materials Analysis (“SWGMAT”), which is a professional organization whose mission is to develop consensus guidelines for best practices in the forensic sciences field. (Daubert Hearing Transcript (“Hrg. Tr.”) 24-25.) SWGMAT has a sub-committee dedicated to hair and fiber analysis. (Id.)

In his expert report, Houck explains that PMRB is an artifact of decomposition:

In decomposition, hairs that were actively growing ... until the time of death go through changes in their root ends related to the decomposition of the surrounding skin and follicle. One of the phenomena observed in these former anagen or early catagen hairs [i.e., hairs in the active growing stage] is called “putrid root” or “postmortem root banding.”

(Houck Rpt. 6.) He defines PMRB as “an opaque ellipsoidal band which appears to be composed of a collection of parallel elongated air spaces near the root of a hair, appearing as a dark or blackened band in the hair shaft.” (Id. (internal quotations omitted).) This definition is derived from the seminal article on PMRB, “The Morphology and Evidential Significance of Human Hair Roots,” which was authored by Plaintiffs’ other two PMRB witnesses, Nicholas Petraeo and Peter De Forest, as well as Charles Fraas (the detective at the Halstead/Restivo 1986 criminal trial) and another researcher. N. Petraco, C. Fraas, F.X. Callery, and P.R. De Forest, “The Morphology and Evidential Significance of Human Hair Roots,” J. Forensic Sci. 33(1): 68-76, 73 (1988).

According to Houck, “[t]he transformation of the putrid root only occurs in roots that remain in the scalp of a decomposing body; the changes do not occur if the hair is plucked (or shed) prior to death and allowed to deteriorate.” (Houck Rpt.

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894 F. Supp. 2d 230, 2012 WL 3536717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kogut-v-county-of-nassau-nyed-2012.