Kogut trial expert: Killer used cloth, not rope

BY ROBIN TOPPING

STAFF WRITER

November 3, 2005, 9:00 PM EST

Theresa Fusco's killer used a piece of cloth to strangle her -- not the rope John Kogut refers to in a confession police say he gave them -- a defense expert testified yesterday in Kogut's murder trial.

Dr. Linda Norton, a former medical examiner and now a forensic pathologist in private practice in Dallas, testified that "a nylon cord or rope was not the instrument used to strangle her."

Pointing to an autopsy photo of the 16-year-old Lynbrook girl, Norton pointed to the blackened mark on her neck and said, "We have thickness here and then thin again here. ... It's much more characteristic of a piece of cloth that has been stretched out."

Norton said a rope would have left a characteristic "criss-cross pattern" from the weave whereas the ligature mark on Fusco was smooth.

The testimony of Norton -- the first witness for the defense case in Nassau County Court -- was contrary to the written and videotaped statement that police say Kogut gave to them. In that, he said one of two co-defendants threw him a rope that he wrapped twice around Fusco's neck.

As she testified, the county's chief medical examiner, Dr. Tamara Bloom, a prosecution witness, sat next to prosecutor Robert Biancavilla.

Bloom had testified the ligature mark was consistent with a double-wrapped rope and she is expected to be recalled to rebut Norton's testimony.

Kogut is being retried for the rape and murder of Fusco after serving 17 years in prison because of newly discovered DNA evidence that failed to link him and his codefendants to the crime.

In his confession, which he has since recanted, Kogut said he held Fusco down while the others raped her and then killed her on Nov. 10, 1984, when she threatened to tell authorities.

Norton testified that Fusco was killed in the same spot where her body was found, murdered, contrary to the confession, which said she was killed in a cemetery and her body dumped in a separate wooded area.

"A body is difficult to move," said Norton, and usually stays in the same place where the murder occurred.

That statement drew protests from Biancavilla, who said "there is no factual basis for this witness' testimony. ... This is not only speculation, it's fantasy."

But Norton, referring to Kogut's statement, said: "That is what I call fantasy."

Norton dismissed the testimony of prosecution witness John Herr, a specialist in sperm cell biology, who testified that sperm in vaginal fluid from Fusco indicated she had had sex four to 15 hours before she was raped and killed.

Biancavilla has contended Fusco had consensual sex before the rape to explain why semen from Fusco's body doesn't match the defendants.

"There is no conceivable way to use sperm as an indication of the time of death or the time a woman had intercourse," Norton testified, prompting Biancavilla to object to her testimony, saying her expertise could not be compared to Herr's. Acting Supreme Court Justice Victor Ort allowed the testimony.

Starting what Biancavilla warned would be a lengthy cross-examination, he challenged Norton on her claim that she had done 10,000 autopsies.

But Norton said the prosecutor had "mischaracterized" her testimony, saying she had participated in 10,000 autopsies but personally conducted 2,000 to 3,000.