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What If Etan Patz's 'Confessed' Killer Had Had a Lawyer?

06/08/2012 10:52 am ET | Updated Aug 08, 2012

Pedro Hernandez, the man who has now confessed to murdering six year old Etan Patz 33 years ago, had no lawyer when he decided two weeks ago to confess the killing to the police. Things don't always happen as they do on television.

Whatever motivated him to confess now (and reportedly 33 years ago to a family member and a Charismatic Christian group), and no matter how many Law & Order episodes he may have watched, he clearly alone took his fate into his own hands two weeks ago. No lawyer positioned to dissuade him or strategize a preferable outcome -- assuming that were even possible for a cold-blooded murder of a six year old.

We won't know, at least for now, why Hernandez chose to confess. Perhaps, schizophrenia. Or simple depression. Or drugs. Or, he couldn't live with this personal hell bottled up inside him for so many years. Or maybe the police (legitimately) tricked him to believe that they had more on him than they did.

Whichever the motivation, what if he had had a lawyer in tow or accessible when the police came knocking, and Hernandez was seemingly poised to confess? What would have been that lawyer's duty? And would it have mattered whether the lawyer believed that he was innocent, or even guilty?

We know, as the press has basically reported, without a confession there was no case at all against Hernandez. In fact, the police had grilled a previous principal suspect just three weeks earlier. Not to mention that many years ago yet a third man had actually been found civilly liable for the murder. Or the phenomenon of the many innocents who have reportedly "confessed" to the Patz murder for still undecipherable reasons Actually, just by virtue of 33 years having passed with no real suspicion focusing on Hernandez, how could there have been a case?

Indeed, even with his confession there may possibly still be no case. In New York in particular, although likewise in many jurisdictions, a suspect cannot be prosecuted based solely on his confession, without corroborating proof that the offense has been committed. Accordingly, a serious question remains for many commentators whether corroboration actually exists. Given these potential obstacles to a conviction, the lawyer's role would seem to have been pristinely clear: "Keep your mouth shut. They've got nothing, and they're going nowhere."

But, suppose the lawyer is faced with a would-be client who wants or truly "needs" in some way to confess, as perhaps the situation here. If the lawyer, after hearing his story, believes in the man's innocence (or even his guilt), isn't the client the boss? Isn't it the client's untrammeled right, and his alone, to decide his ultimate fate, even if that decision is self-defeating, even ludicrous, as long as it is ethical (as it likely would have been here) for the lawyer to follow the client's dictate? After all, who is a lawyer -- sometimes called a "special purpose friend" -- to play God with a client's life? Surely, the attorney would have a duty to communicate to the client: "Yes, confession is good for the soul," and also that, "That confession will be the end of your freedom on earth!" But, doesn't that duty end there?

We always see those unctuous defense lawyers on Law & Order rudely overruled by their clients who, for whatever reason, seem to want to spill their guts to the prosecutors in a dark, dank counsel room at Rikers Island. And perhaps, sometimes, those lawyers should be shut down! Maybe they just want their name in the newspaper. Or a big payday. Or an opportunity to defeat the prosecutor in court. Maybe that's their true motive in promoting the client's or would-be client's silence -- to take the case to trial.

Still, if an experienced lawyer consulted by a suspect in a case, particularly such as Patz, sees that the police have no case at all unless the suspect does "something stupid" like confess, most able lawyers will say, or perhaps should say (albeit not necessarily in these words) -- "We do it my way, or I'm not your lawyer. If you want to commit legal suicide, it won't be on my watch." Or alternatively to accomplish the same result, recognizing that the decision to plead guilty at the end of the day will be the client's alone, he might more softly say, "If you want to confess, perhaps that it something we can consider down the road. But right now, with your adrenalin pumping wildly out of control, I can't allow you to do something -- that you may not fully understand right now -- will forever and unalterably change your life. If you are unwilling to stand down for now, I'm afraid I won't be able to stand with you."

And it probably shouldn't matter whether the lawyer's belief is that the client is innocent or guilty, and whether the client has persuasively confessed to the lawyer in the privacy of the attorney-client confessional.

If the lawyer believes that the client is innocent and the client, for whatever reason, intends to give what the lawyer believes would be a false confession, especially given the history of false confessions demonstrated by The Innocence Project, the lawyer must stand as a bulwark against it. He can't stand by idly and allow to occur what he sees would be an obvious injustice when the man's fate ultimately rests in his hands, however hard the man tries to wrestle it away.

Nonetheless, suppose the pre-confession, hypothetical lawyer that we posit in Patz, believes that the client is indeed guilty, but that no case can be made without a confession. Truth told, the lawyer's role probably remains the same. The lawyer should remain a roadblock against incrimination. You say, the client wants to do the moral thing; he wants to make amends for his horrific act. Perhaps, also, his priest has separately told him that his only path to spiritual absolution is to confess to the police.

Yes, ultimately it is always the client's decision -- whether to confess, to plead guilty, to save his soul. At the same time, the lawyer answers to a different authority - his lawyer's duty to try to talk his client off the ledge with all the ability he can muster. And if unable to, although there will be able and available lawyers who will disagree, perhaps he shouldn't be an enabler to what amounts to seppuku, and should decline to participate in the client's strategy, even at penalty of bowing out. Tough words, to be sure, but maybe an act needed to make the point as well as humanly possible to the would-be client. Notably, the Patz murder is not a capital offense in New York - the existence of the death penalty might contrarily justify a lawyer to acquiesce in the client's strategy, hoping that good lawyering might help defeat the potentiality of a death penalty. And it might be different also if the lawyer believes his wanting-to-confess client's is actually guilty while another man, a wrongly-accused suspect, languishes in jail for the crime he didn't commit.

Still, fortunately, or not, no lawyer in Patz will have to live with a lawyer's guilt- ridden nights in deciding how to counsel the would-be client. Pedro Hernandez didn't have the foresight, the presence of mind, the where-with-all, or maybe even the desire, to have a lawyer talk sense into him when the moment of truth arrived. If, in fact, he murdered Etan, most people probably believe that all the fires of hell won't be hot enough. Many readers will actually believe it a good thing that no lawyer stood in the roadway against Hernandez's confession.

At the same time, one must wonder: should prosecutions depend on whether the lawyer who represents a particular suspect who wants to confess to save his soul (if that, indeed, is what happened here), is willing to yield to the spiritual guidance the client may have received from his clergyman, his advisor or his inner voice? And, alternatively, should a prosecution depend on whether the suspect actually had a lawyer?

Criminal lawyers are an unpopular lot, particularly when they defend a person accused of a crime as detestable as this murder. Their role is counterintuitive - perhaps most honestly articulated in many cases as ensuring that "the client's truth" will never see the light of day. "Truth," the Bible's teaching to the contrary notwithstanding, will not always "set thee free." And, lest it go unsaid, lawyers (whether they believe their clients are guilty, or innocent) often make mistakes in arriving at those beliefs just like juries too-often do. Lawyers have no Hemingway "built-in 'B.S. detector'" to help decide if one is truthful when he says he's guilty, or truthful when he says he's not.

Put another way, the criminal lawyer's role is to defend the accused, especially when he's guilty. And, although there are of course exceptions, defending the accused especially where a plea deal compromise would simply be unworkable, typically means silence from him.