Shortly after 7 a.m. on May 23, 2012, New York City detectives transported a disabled former construction worker named Pedro Hernandez from his home in Maple Shade, N.J., to an interrogation room at the Camden County prosecutor's office. Days earlier, the detectives had received a tantalizing tip, and now they believed they might be on the verge of solving one of the country's most famous missing child cases: the disappearance, 33 years earlier, of a 6-year-old Manhattan boy named EtanPatz.
The case had both frustrated and exhausted police since 1979, when Patz, allowed to walk to the school bus stop alone for the first time, vanished. Alleged sightings of Etan had poured in over the years. Leads were chased as far away as Israel. But no conclusive answers had ever been produced, a frustration rooted at least in part in a lack of eyewitnesses or physical evidence: The boy's body was never found; there was no actual crime scene; no fingerprints or DNA ever surfaced to aid the dozens of investigators who had been drawn into the case.
But several people, including relatives of Hernandez, had emerged to tell detectives that Hernandez had occasionally talked of having harmed a young child during his long-ago stint as a bodega clerk in the SoHo neighborhood where the Patz family lived. And court records indicate that, in a brief exchange inside Hernandez's home that May morning, he had said enough to warrant a trip to an interrogation room.
That Camden interrogation room, it turns out, was fully equipped to do what a growing body of expert opinion has insisted be done in such moments: a full videotaping of a suspect's interaction with detectives, from the start of an interrogation through any possible formal confession. Judges, defense lawyers, and even many prosecutors have come to see such comprehensive videotaping as the single most important factor in securing reliable confessions and preventing the wrongful convictions that can stem from false confessions. In New Jersey, where Hernandez was being questioned, taping interrogations in homicide cases has been required by law since 2005.
The detectives, however, never turned the cameras on during what would become seven hours of interrogation. They remained off, in fact, until 2:57 that afternoon, when Hernandez was finally ready to formally confess. In a series of taped statements, Hernandez, a 51-year-old man with no formal criminal history, said he had lured Etan to the bodega's basement with the promise of a soda, instantly choked him, placed him, still alive, in a plastic bag, and then inside a cardboard box, threw the boy's book bag behind a freezer and carried the box in broad daylight several blocks before placing it on the sidewalk. He said he had not known the boy, and he offered no motive.
Manhattan prosecutors used this confession to gain a murder indictment against Hernandez, publicly disclosing no other evidence, and a trial has been set for the spring. But prosecutors still have to clear a legal hurdle before using the confession. At a hearing in March in State Supreme Court in Manhattan, Hernandez's lawyer will seek to have the confession deemed illegitimate, in significant part because of the failure to record what went on in the Camden interrogation room.
ProPublica has spent weeks reading the court file in the Patz case, interviewing the people to whom Hernandez had supposedly confessed over the years, and speaking with law enforcement and legislative officials who have pushed to make taping interrogations in New York mandatory. We found that:
- The accounts of two people who have told investigators of Hernandez's supposed claims of once having harmed a child not only conflict with each other but bear little resemblance to the particulars of Hernandez's confession to police. One of the people, for example, said Hernandez had claimed he had once killed a child, only he said at the time that it had been a black child.
- The details in Hernandez's confession do not match the few accepted facts of Etan's disappearance. For instance, Hernandez says he lured the boy from the school bus stop. But years of police work have long established that Etan never made it as far as the bus stop.
- Just months before Hernandez was arrested, Manhattan District Attorney Cyrus Vance and New York Police Commissioner Raymond Kelly, the two men now overseeing the Patz case, served on a state task force that called for the mandatory taping of interrogations in New York, citing it as perhaps the single most important tool in preventing wrongful convictions.
- Several former Manhattan prosecutors said opinion is divided in Vance's office about whether there is sufficient evidence to pursue a conviction against Hernandez.
In court papers, Hernandez's lawyer, Harvey Fishbein, has said that his client's confession is a consequence of a long history of mental illness, and as a result it is not surprising that prosecutors have found nothing to substantiate it.
"In the six months since Mr. Hernandez's arrest, the NYPD and the New York County District Attorney's Office have conducted an intensive investigation attempting to corroborate Mr. Hernandez's statements," Fishbein wrote in December 2012. "However, I am told by the District Attorney's Office that they have found nothing."
Fishbein has also asserted that the untaped interrogation of Hernandez violated New Jersey law, that Hernandez was not properly advised of his Miranda rights, and that some of the most respected experts on the question of mental illness and false confessions have examined Hernandez and suggested his admissions could well be fiction.
"All of the statements are tainted by the initial illegality," Fishbein said of the confession, "and must be suppressed as fruit of the poisonous tree."
Prosecutors have defended the integrity of the confession, and rejected any claim that they were bound by New Jersey law to tape Hernandez's interrogation. They have minimized Fishbein's claims of Hernandez's mental illness, and insisted they have enough corroborating evidence to proceed. This month, using material provided to them by the defense, prosecutors sought to portray Hernandez as a lifelong violent man, one given to fits of rage and abuse of his two wives.
Asked by ProPublica who had made the decision not to tape the entire interrogation, Kelly, the police commissioner, refused to say. Vance also would not answer questions about the decision, including how it could be reconciled with the task force's explicit recommendations.
ProPublica, as part of its examination of the case, determined that after the initial media excitement and legal jousting, prosecutors came to an unusual agreement with Fishbein: They agreed to delay seeking an indictment in order to give both sides time to look deeper into the case. According to court filings, the parties were in frequent contact over the next six months.
Fishbein ultimately opted to share what he said was the entirety of Hernandez's medical history, as well as the reports done by psychiatric experts who had examined Hernandez and his alleged confession. Fishbein then made a formal presentation to Vance's office in the fall of 2012, and, according to a person with knowledge of the meeting, emerged confident he had persuaded prosecutors to exercise their discretion and abandon the case.
Fishbein never heard back, and on Nov. 13, 2012, he received a call from a reporter asking him for a response to the news of Hernandez's indictment on murder charges.
"This indictment is the outcome of a lengthy and deliberative process, involving months of factual investigation and legal analysis," Erin Duggan, a spokesman for Vance, said in announcing the indictment. "We believe the evidence that Mr. Hernandez killed EtanPatz to be credible and persuasive, and that his statements are not the product of any mental illness. The grand jury has found sufficient evidence to charge the defendant and this is a case that we believe should be presented to a jury at trial."
If the case makes it to trial, of course, prosecutors will have to convince a jury of Hernandez's guilt beyond a reasonable doubt.
Fishbein has said any such attempt will only cause more pain and disappointment for the Patz family, and the city that was consumed with their tragedy.
"The really sad part of this case," Fishbein said, "is that it will take time, it will take money and it will not tell the city what happened to EtanPatz."
The First Milk Carton Child
When EtanPatz went missing, a movement to protect children was born.
SoHo in 1979 was a neighborhood in flux. Its textile warehouses had emptied out as industry moved uptown and abroad, providing cheap lodging for a burgeoning community of artists, musicians, and writers — Etan Patz's young parents among them. Their story has been told in newspaper and magazine articles, television news shows, and in what is regarded as the definitive book on their son's disappearance: "After Etan: The Missing Child Case that Held America Captive."
Stan Patz, a photographer, and Julie, a child care worker, were said to have taken pride in their membership of SoHo's pioneering class. And on the morning of May 25, 1979, the neighborhood felt safe enough for them to grant their son a wish he'd been making for weeks. He wanted to walk to his school bus stop two blocks from their Prince Street loft by himself— a small demonstration of independence outsized in importance for a 6-year-old.
He was supposed to be back by 3:30 that afternoon; a woman in the neighborhood was scheduled to bring him from the bus stop along with her own daughter. When Etan didn't arrive, Julie Patz called the neighbor, who told her Etan wasn't in school that day. Julie panicked, called the police, and then her husband. Soon their home became a bustling base of operations for dozens of detectives and patrol officers. Neighbors and police fanned out across the neighborhood, knocking on doors, checking people's closets, rooftops, basements, any conceivable hiding place. The search spread all over the city and eventually, the country.
Stan Patz had countless pictures of Etan's smiling face framed by his straight blonde hair, and his image became ubiquitous, plastered on billboards and telephone poles across the city. It was virtually impossible for anyone in the city not to know of his disappearance.
The case ultimately spawned a legacy, forcing countless parents to reckon with the amount of freedom they granted their youngsters: Etan was the first missing child to have his face printed on milk cartons distributed all over the country; National Missing Children's Day was declared on the four-year anniversary of his disappearance in 1983. His disappearance helped spur the Justice Department to establish a national broadcast system that, to this day, announces potential child-abduction cases through alerts via radio, television, and now Internet and text messages.
In the early years, Etan's parents were logical suspects. Their relatives were interviewed, and they were interrogated repeatedly, even hypnotized.
Across the 1980s, there were a string of false starts. In 1985, federal agents traveled to Israel when a mysterious photograph of Etan appeared in a Romanian-language magazine there. In January 1988, the NYPD acted on a tip from a psychic, dispatching a dive team to search for Etan's remains in the East River.
The case also came to consume a federal prosecutor in New York named Stuart GraBois, and his work over many years produced what many in law enforcement came to see as the likeliest suspect: a convicted child molester named Jose Ramos, who had a relationship with the Patz family's former babysitter, and who, in a series of encounters with GraBois and two jailhouse informants, seemed to come awfully close to confessing.
But GraBois, as a federal prosecutor looking at a state murder case, had no authority to seek a prosecution. The Patz family, who were persuaded by GraBois's work, ultimately tried to gain a measure of justice, filing and winning a civil wrongful death case against Ramos in April 2004.
For the Manhattan District Attorney's office, however, the case remained open, and over the years the odd, but always fruitless tip had surfaced. Then, out of the blue, it looked like a real break might be at hand in April 2012. New York police and the FBI, in an action that set off a media firestorm, began digging up the basement of an old work shop that once was used by a man named Othniel Miller. Stories began appearing suggesting Miller might be the latest suspect. The authorities were looking for Etan's body. Miller had known Etan, and, according to some accounts, had given him a dollar in the days before his disappearance, a friendly token of good will for some chore the 6 year old had done.
The dig wound up a bust, and days after it began, it was halted. A police spokesman said "no obvious human remains" had been found. The camera trucks packed up; the newspaper headlines faded.
But it appears the sudden spotlight on the famous cold case produced one real development: Kelly, the police commissioner, said someone who knew Pedro Hernandez, either a family member or onetime acquaintance, contacted police and suggested that it would be worth talking to the reclusive 51-year-old church-going man whose decades-old tales of harming a child in New York might be connected to Etan Patz.
Research grows on the baffling prevalence of false confessions.
The Pedro Hernandez who took a chair inside the Camden County prosecutor's office on May 23, 2012 hadn't led a particularly prominent or exemplary life.
One of 12 children in a Puerto Rican immigrant family, he had failed to finish his senior year at Woodrow Wilson High School in Camden. He'd found work in construction, but at some point was injured, and, as a result, he was in and out of medical facilities over the years. He was a regular at church, as well as local prayer groups, but according to people who knew him, he could seem erratic, maybe even unhinged.
Hernandez's first marriage had produced two children and a fair amount of acrimony. Daisy Rivera had at one point obtained an order of protection against Hernandez, and after the marriage ended, Rivera told ProPublica that she was frequently in court seeking child support payments. When Hernandez remarried in 1988, Rivera said she showed up uninvited for the occasion as a way of reminding her ex-husband of his responsibilities to his children.
"I divorced him because he was too possessive, too violent, disrespectful," Rivera said during a series of interviews with ProPublica. "To him, everybody is a whore, everybody's a faggot, everybody's a lesbian. He was so judgmental. I think he had a mental problem, but I just dealt with it because I thought it was normal."
"He never beat me, like with a bloody nose and black eyes," she said. "He was more verbally abusive."
This month, prosecutors asserted that Hernandez's second wife, Rosemary, has also spoken of violence and trouble in their home. In a recent court filing, prosecutors said Rosemary had told of Hernandez's violence, as well as his cocaine use in the 1990s, in her interview with one of the psychiatric experts hired to help in her husband's defense. Rosemary recounted frightening episodes of physical and psychological abuse, including one during which her husband wrapped a vacuum cleaner cord around her neck.
"While it is true that defendant has no criminal convictions," prosecutors wrote of Hernandez, "it is misleading to state that defendant has ‘no prior criminal history.'"
But Rosemary's disclosures were made during an explanation of the impact her husband's psychiatric troubles had on the family's home life, and she has continued to assist in his defense, appearing at several hearings in the case.
Daisy Rivera, for her part, has insisted repeatedly to ProPublica that Hernandez never talked of having harmed a young child in his past.
"If he said, ‘Listen, Daisy, I have a confession to make, I killed a 6-year-old child,' I have it in my heart that I wouldn't have gone forward with the marriage," she said. "I wouldn't have proceeded with the marriage. Why would you hurt a 6-year-old child?"
Could Hernandez have killed EtanPatz? Could he, after hours of police interrogation, possibly have falsely confessed to such a horrific crime?
Allison Redlich, a professor at the State University of New York at Albany, is one of the nation's foremost experts on false confessions. She has identified a handful of factors that are often at work in producing false confessions: a suspect with a very low IQ; a suspect with a history of mental illness; a crime that has gained prominent media attention; a long interrogation, where issues of fatigue or desperation can play a role; and a confession that, however potentially compelling, is at odds with some of the known facts of the case.
Hernandez, according to court papers filed by his lawyer, meets many of those criteria. He has an IQ of 67; his interrogation and confession unfolded over more than 24 hours, and he was given very little rest; he has been taking some form of antipsychotic medication for more than a decade. And the Patz case had been headline news and a staple of television within a month of his supposed confession.
In an interview, Redlich, who is not involved in the Patz case, said that false confessions can be made with a great degree of conviction and be highly persuasive to judges, juries and prosecutors, particularly when told by a mentally ill person.
"They may come to believe through the interrogation tactics that they actually committed the crime. They may say ‘I don't remember it, but maybe I did do it,'" said Redlich.
Fishbein, in repeated court filings, has seized on what he asserts are several discrepancies between his client's confessions and what has been the understood narrative of Etan's disappearance.
Police, in the weeks and years after the boy vanished, talked repeatedly to Etan's classmates and their parents. No one ever reported seeing him at the school bus stop on that morning in May 1979.
As well, Hernandez says in his confession that after he strangled Patz, he tossed the boy's backpack behind a freezer in the bodega's basement. But Fishbein notes in court papers that the backpack was never found, despite the fact that "the basement of the bodega, including that area, would have been part of the NYPD's comprehensive and massive search for clues in the boy's disappearance."
ProPublica tracked down and interviewed Robert McKenna, a former police officer who was assigned to help in the search for Etan on the night of May 25, 1979. He said there were cops all over the bodega.
"We were in the bodega that night because there was a phone booth there," he said. "It kind of became a base of command. It was one of the only places you could get coffee.
McKenna said that the area behind the freezer in the basement would have been scoured at some point in the days after Etan's disappearance.
"We would have checked the grocery store and checked behind it and in the basement because people have a tendency to stuff bodies in places like that: under the bed, or in the garbage, or in a hung ceiling. So we would have checked it looking for the body. We would have checked that area to protect ourselves from someone saying, ‘Hey stupid, the kid is right there and you're standing right here.'"
Police Commissioner Kelly, in announcing Hernandez's arrest, said the onetime store clerk told detectives in his confession that he had been bringing store products from the bodega's basement when he lured Etan downstairs.
However, a person who has looked into the bodega's operations told ProPublica that Hernandez's narrative is improbable. The owner of the bodega, the person said, was vigilant about who got access to the basement, which had both a lock on the sidewalk trap doors and a locked gate underneath them. No one but the owner, now dead, had keys to the basement, and, because he was protective about his beer stored there, he accompanied anyone who went.
At that time of the day, the person said, it also wouldn't have made sense for Hernandez to be stocking the store's shelves; he'd instead have been buttering rolls for the morning customers.
The idea that someone would confess to something they didn't do, particularly to a heinous crime like rape or murder, continues to strike many as incomprehensible.
Yet the National Registry of Exonerations, a joint project by the law schools at the University of Michigan and Northwestern University, has documented 150 instances since 1989 of people who falsely confessed to crimes they were later found innocent of. As well, the Innocence Project, a nonprofit legal advocacy organization, has found that in New York, nearly half the wrongful convictions overturned by DNA evidence involved false confessions.
Redlich and other experts say the mentally ill are particularly vulnerable to the interrogation tactics police use to get suspects to open up and unburden themselves. Lying, creating scenes, placing the suspect at the scene, expressing sympathy, minimizing the consequences of a confession -- all are common tools used to extract sensitive and possibly damning information.
While prosecutors appear to have conceded Hernandez has long been on anti-psychotic drugs, they have dismissed the notion that he has a serious mental health problem that would have any bearing on the reliability of his confession.
"There is no record of him ever being treated by any mental health professional for a major mental illness," prosecutors state in court filings.
Fishbein says in filings that he has medical records spanning more than 20 years that establish Hernandez's serious psychological impairments. ProPublica asked to see the records, but Fishbein said the judge in the case has ordered those records sealed.
Fishbein, court papers make clear, has already given prosecutors some of the psychological evidence he could present at trial, including the reports of five different experts. Dr. Michael First, a professor of Clinical Psychiatry at Columbia University, produced a 24-page report that concluded Hernandez suffers from "schizotypal personality disorder," which is characterized by "perceptual distortions" and "unusual perceptual experiences." GisliGudjonsson, a professor at King's College in London who is widely viewed as a founding figure in the field of forensic psychology and an expert on the reliability of confessions, determined that, without corroborating evidence, relying on the statements Hernandez made to police and prosecutors would be "profoundly unsafe."
Kelly, the police commissioner, described Hernandez's condition at the end of his confession.
"He was remorseful, and I think the detectives thought that it was a feeling of relief on his part," Kelly said of Hernandez during a news conference announcing the arrest.
To Peter Neufeld, a co-founder of the Innocence Project, that's hardly a shock.
"It's completely counterintuitive, but obviously it's not that difficult to get an innocent person to falsely confess," Neufeld said. "The truth is that people finally, after being questioned for hours, just want it to stop, and they think, if they just say what [the police] want them to say or sign a piece of paper they put in front of them, this horrible experience will all be over."
Despite calls from the highest levels of the court system, New York has been slow to require recording interrogations
A half a dozen detectives and police officers descended on 116 East Linwood Avenue in Maple Shade on May 23, 2012. The tip about Hernandez was still fresh, and he was a complete mystery to New York investigators, including one of the detectives there that morning, David Ramirez, a veteran of the Patz case. Police would later say Hernandez's name might once have appeared on a 1979 listing of bodega employees, but they could not say if he had ever been interviewed.
The detectives found Hernandez at home, with Rosemary, his wife of 24 years and his daughter, Becky, 23. At 7:25, according to court records, Hernandez said something that detectives took care to note, and soon after Hernandez was in the nearby Camden County prosecutor's office. According to one person involved in the case, the detectives, just before leaving, asked Rosemary to give them Hernandez's medications, including his anti-psychotic pills.
There were 67 murders in Camden last year. Any suspect questioned while in custody about those 67 cases has been taped. It's the law.
"Once a person is brought in, every interaction is recorded," said Jason Laughlin, a spokesman for the prosecutor's office. "When an interrogation begins, a camera is turned on and everything is recorded."
But when Hernandez was in the Camden interrogation room with two New York detectives, Ramirez and Jose Morales, no cameras were on. And so at 8:10 that morning, when court records show Hernandez made a statement of interest, what he reportedly said and how he came to say it has been established only by the word of the detectives. The same is true of the alleged statements Hernandez made at 1 p.m., and at 2:30 p.m., at least six and a half hours into his interrogation.
"In order to fully understand a confession, I need to see the interrogation," said Saul M. Kassin, a professor at John Jay College of Criminal Justice in Manhattan. "And absent that, I'm involved in some degree of guesswork, and some degree of inference by piecing together what police, and suspects, and others said happened during that interrogation."
Eliminating just that kind of guesswork has been a central aim of New York State's chief judge, Jonathan Lippman. When he took his title in 2009, one of his first moves was to address a problem he felt to be among the greatest facing the state court system: wrongful convictions. To do so, he convened a panel of defense attorneys, prosecutors, police and academics.
Mandatory taping of interrogations proved to be the panel's most critical proposed reform. The panel had reviewed academic studies, legislative proposals and legal briefs. It had heard testimony from psychologists, academics and lawyers, and police presented reams of information on the issue. At least 18 other states already require taped interrogations, as do hundreds of local police departments and prosecutor offices around the country.
The Innocence Project's Neufeld testified before the panel and attended many of its other meetings. He said that prosecutors on the panel "couldn't find a single police captain or sergeant anywhere in America who would give them a single example of videotaping" having a negative impact on the prosecution.
The panel, too, had recent painful history for context. The young men whose convictions had been overturned in the Central Park jogger case had sued the city for millions, and their case was headed to trial. The central issue in what was one of the Manhattan district attorney's greatest embarrassments was the claim that detectives had managed to extract false confessions from the teens during the course of hours of un-recorded interrogations.
And so in January 2012, the New York State Justice Task Force formally called for mandatory taping of interrogations to become law.
"The Task Force agreed that recording can aid not only the innocent, the defense and the prosecution, but also enhances public confidence in the criminal justice system by increasing transparency as to what was said and done during the interrogation," read the January 2012 report issued by the New York State Justice Task Force on which Kelly and Vance sit as permanent members. "Indeed, among its many benefits, recording helps identify false confessions; provides an objective and reliable record of what occurred during an interrogation; assists the judge and jury in determining a statement's voluntariness and reliability; prevents disputes about how an officer conducted himself or treated a suspect, and serves as a useful training tool to police officers."
In an interview with ProPublica, Lippman said he was ethically barred from commenting on the Patz case, but he was emphatic in his belief in the value of taping interrogations.
"I think this is a no-brainer from every different perspective of the justice system," Lippman said. "All the different role players have an interest in getting the truth out and doing justice."
"So why, in this late day, when we do have the technology to do this at a minimum cost, why shouldn't we be doing this?"
According to several members of the task force, Kelly and Vance were concerned about the financial costs of requiring a large police force or prosecutor's office to tape every interrogation. But both men have subsequently endorsed the idea.
Just four months after Hernandez's interrogation, Kelly, speaking at the Carnegie Council in Manhattan, said he would begin implementing mandatory taping, claiming it would help re-establish public confidence in the integrity of many prosecutions.
Vance, in applauding New York Governor Andrew Cuomo for authorizing money to do such taping, concurred.
"Recording police interrogations in the most serious criminal cases is an extremely valuable tool for law enforcement," Vance said last July in a formal press statement put out by Cuomo. "By allowing prosecutors to know exactly what the defendants say during interrogations, video recordings help us to convict the guilty and better evaluate claims of involuntary confessions."
ProPublica submitted detailed questions to Kelly and Vance seeking to understand why Hernandez's interrogation was not taped. Neither man would answer any of them.
The detectives, at the hearing in March, may have to explain their decision not to record what they understood could be a headline-making interrogation in one of the most maddening and emotionally charged cases in New York history.
Michael Palladino, the president of the detectives union in New York City, said his organization has long opposed mandatory taping of interrogations. He described interrogations as an "art," and said taping them could mean that they could "become a training film or training episode for other criminals."
"I think what could happen very easily is that some juries may become sympathetic to feel that maybe the person was tricked and therefore they'd let the person walk out of jail because of that or deem the person not guilty as a result of the tricks of the trade, so to speak."
For Fishbein, Hernandez's lawyer, the failure to tape Hernandez's hours of interrogation means it is impossible to say whether he'd ever requested a lawyer or just how the details of his confession emerged.
In court papers, prosecutors have asserted that, because the Patz case was a New York matter, they did not have to honor New Jersey law and tape the interrogation. As well, they have argued that Hernandez came to the prosecutor's office voluntarily, and thus was not technically in custody.
Of course, whether Hernandez's hours of interrogation were indeed voluntary could be established if the interrogation had been taped.
"You pick up the suspect and the suspect is somebody who has a known history of mental illness, in fact he's on anti-psychotic medication at the time, the police in their training are told that some of the most likely people to falsely confess are people who have a mental health history," said Neufeld, who is not involved in the Patz case. "How in God's name could you not record that interrogation?"
"The first reaction is shock," Neufeld added. "The second reaction is: I'm very suspicious."
‘I Laughed at Him'
Corroborating witnesses whose stories don't match up.
Tomas Rivera was a frequently quoted figure in the days after Hernandez's 2012 arrest. He and Hernandez had been members of the same prayer group in the early 1980s, Rivera told reporters, and it was to that prayer group that Hernandez once confessed to having killed a child. Rivera told several New York newspapers that when he heard the confession, he immediately told Hernandez's family, who told him they'd report it to the police.
"He was supposed to turn himself in. The family was in charge of that," he told the New York Daily News. "What's happened was the truth because he's in jail now. They locked him up with the information we gave."
In court papers filed over the last year and a half, Fishbein says that prosecutors have given him summaries of the accounts of several people who have told the authorities of Hernandez's alleged confessions to friends and family. Fishbein, in his filings, makes clear he regards these accounts as perhaps the only corroborative evidence prosecutors have.
However, Rivera's version of Hernandez's alleged confession to the prayer group is at odds with Hernandez's confession to detectives.
Rivera, in repeated interviews with ProPublica, said that Hernandez had asserted that he had dismembered the child he killed and chopped the boy into pieces.
"He said he got him into the basement, chop him up into pieces and put it into the trash bag," Rivera said.
"He was sad," Rivera said of Hernandez, "like when you cry, start crying. It's a motivation of repents, I guess, what he did."
Rivera turns out to have a troubled past himself, something that could surface were he to testify at a trial. Rivera is a publicly registered sex offender with the State of New Jersey, having pleaded guilty years ago to two counts of sexual assault and one count of endangering the welfare of a child. Rivera, court records show, had at least two victims, both girls, one six years old, the other nine.
Mark Pike, who has never before spoken publicly, is another friend to whom Hernandez allegedly confessed. It happened, he said, on a warm night in Camden in the early 1980s. But Pike told ProPublica that Hernandez's tale of killing a child years ago differed from Hernandez's formal confession; this time, the details varied even more dramatically than in Rivera's account.
Pike said that Hernandez, then 19 or 20 and recently back from a failed stay in New York, told a story about a black child who came into the SoHo bodega and fired a ball at him as he stood behind the counter. Pike said Hernandez claimed to have killed the boy and disposed of his body inside a rolled-up rug, which he then hid behind the bodega.
Pike said he didn't believe the story, and thought Hernandez was trying to make himself out to be a tough guy.
"I laughed at him," Pike said.
Pike said he told this to investigators, but that they returned after Hernandez's arrest and showed him a picture of Patz.
"Then I thought this must've been the kid because they came back and said he confessed, said he confessed in a conversation he had with me," Pike said of detectives.
"My statement was a page long," Pike said of his formal submission to police. "I don't know if it said he told me it was a black kid. I think it said it was a black kid, but I could be wrong. The stuff with the ball was in there. The rug part was in there. He said he got rid of the body behind a store dumpster and that was in the statement, too. The fact that I didn't believe him at the time was in there. I said I had my doubts. The statement said I had my doubts."
Pike said he testified before the grand jury that indicted Hernandez, but does not remember what, exactly, he was asked by prosecutors.
In court papers, Fishbein, citing what he called the inconsistent and unreliable witness statements, asked the judge in the case to compel prosecutors to disclose exactly what, if any, corroborating evidence they had put before the grand jury. There had been in the days and weeks after Hernandez's arrest news reports alleging that incriminating things had been found in Hernandez's home – children's toys, a pair of boys underwear. Another story claimed that Daisy Rivera, his ex-wife, had told investigators that Hernandez has for years kept a picture of EtanPatz in his house.
"As a matter of law," Fishbein wrote in one filing, "a person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charge has been committed."
Fishbein, in a more recent filing, hammered away at what he said was the continued inability of prosecutors to produce additional evidence, laying out what he asserted were the latest dead ends for prosecutors: they had examined Hernandez's computers, personal papers, photographs, and found nothing implicating him in the Patz case. As well, investigators had dug up the basement of the bodega, scraped paint off its walls, and turned up nothing.
Prosecutors rarely have to disclose grand jury minutes to the defense until shortly before trial. But Fishbein argued this was a special case.
"The victim, the witnesses, and the bulk of the evidence are all known to the defendant, defense counsel, and the press," Fishbein said in one of the filings. "Thus, maintaining the secrecy of the grand jury in this unique case does not serve a public interest."
Prosecutors, in their filings, cited no additional evidence and refused to turn over the details of the grand jury presentation. Instead, they made a narrow legal argument: that under New York law "very little evidence is needed to satisfy the corroboration requirement." In fact, wrote Joan Illuzzi-Orbon, the senior prosecutor assigned to the case, the only corroboration needed was to establish that a crime, in fact, had happened.
To meet that standard, prosecutors simply offered a well-known narrative: Etan Patz left for the school bus stop one morning in 1979 and never came back.
The judge ruled for the prosecution, and a trial date was set for April 23, 2014.
To Proceed Or Not to Proceed
For prosecutors, that is always the question. Did Cyrus Vance answer it properly?
In the years after Etan disappeared, Stan and Julie Patz had endured many investigative dead ends, withstood one media deluge after another, and yet had steadfastly refused to move from their Prince Street loft or to change the family phone number, hoping that one day their son would call.
But in 2002, after 23 years of hurt and despair, Stan Patz thought justice was within reach. He'd worked with Stuart GraBois, the former federal prosecutor who had poured himself into the case, and become convinced that Jose Ramos had killed his child. Ramos was a convicted pedophile who had been a boyfriend of the Patz family's babysitter; during GraBois's interrogation of Ramos years before, Ramos had said that he had abducted a boy who looked just like Etan, brought him back to his Manhattan apartment, and tried to have sex with him. In 1991 he told a similar story to two FBI agents. And two jailhouse informants working for GraBois had got Ramos to further implicate himself.
Stan Patztook his evidence to the Manhattan District Attorney's office, then run by Robert M. Morgenthau, one of the most respected prosecutors in the country. Lisa Cohen, a Columbia Journalism professor, captured Patz's meeting with two of Morgenthau's senior aides in her exhaustive book, "After Etan: The Missing Child Case that Held America Captive."
"I just want to get the bastard who fucked over my son!" Patz, in a final plea, screamed at the Manhattan prosecutors.
The prosecutors, according to Cohen, were sympathetic but unmoved.
Morgenthau years later explained his office's thinking.
"We spent a huge amount of time on that case," he said. "If we could go to a grand jury, we would in a minute. There's no sufficient evidence and there's absolutely no reason to open a grand jury investigation where you don't have any admissible evidence."
GraBois disagreed with Morgenthau, but admired the integrity of his decision.
"I've always maintained that reasonable people differed," GraBois said. "They felt we didn't have enough evidence—fine. We always felt we did. But it was their decision and I have to respect it."
The extraordinary discretion afforded the prosecutor is an often overlooked aspect of the justice system.
"There's no prosecutor's handbook that says when and when not to bring charges," said Bruce Green, a former federal prosecutor who now teaches law at Fordham University. "Some say if you're not personally convinced of a person's guilt, you shouldn't go forward because juries are fallible, and we are the professionals. Others have a different view and might say probable cause is enough and we should let the jury figure it out."
But several former members of the Manhattan district attorney's office, all of whom had worked during Morgenthau's tenure, described considerable ambivalence among Vance's staff about the handling of the case against Hernandez. One former prosecutor said he was astonished the case was going to trial. Another said some people believe in the merits of the case, but would not be surprised if the office lost at trial.
Already, Hernandez's lawyer has successfully moved to have Ramos, currently imprisoned in Pennsylvania, brought to New York to testify.
"A case whose foundation rests upon the confessions of a man with serious mental issues which don't contain information uniquely known to the killer is not a strong one," said Mark A. Bederow, a former Manhattan prosecutor who is now a defense lawyer in New York. "Factor in that the defense will assuredly blame Jose Ramos, a convicted pedophile who was dating Etan's babysitter at the time of his disappearance, and who admitted being with Etan on the day he disappeared, then prosecutors are left with an extraordinary challenge in order to secure a conviction."
Under Vance, who became District Attorney in January 2010, there have been several instances in which the Manhattan prosecutor's office has come under fire.
In 2011, Vance and his chief assistant, Daniel Alonso, moved quickly to indict former chief of the International Monetary Fund Dominique Strauss-Kahn on sex assault charges, a decision that proved embarrassing after the accuser in the case, a hotel maid, turned out to have substantial credibility problems. Months later, in a decision that dominated Vance's first term, prosecutors abandoned the case.
A chastened Vance, in his public statement announcing the decision to drop the charges against Strauss-Kahn, explained that he had taken the action "because our job is to seek justice, not convictions at any cost."
The New York police certainly seemed to be out in front again in announcing Hernandez's arrest last year. The police alone executed Hernandez's arrest, and Kelly flew back from London to immediately go before the cameras.
Over 35 minutes, Kelly disclosed how the initial tip had come in, and laid out the details of Hernandez's confession. He admitted his detectives had determined no motive, and he admitted his command of the facts of the very old case was imperfect. He subscribed to the idea that Etan was at the bus stop, but said he could not answer why Hernandez had never been interviewed back in 1979. He said the police had notified Stan Patz, and he said he hoped the developments would "bring a measure of peace" to the family.
Asked what Hernandez would be charged with, Kelly said, "The district attorney will make a determination. Our issue is probable cause."
While a prosecutor from Vance's office was present for Hernandez's confession, no member of the office attended Kelly's news conference.
Almost instantly, news reports surfaced asserting that Vance was reluctant to stand up to Kelly, a police commissioner with a national profile and formidable power under Mayor Michael Bloomberg. Other reports said FBI investigators who had worked on the Patz case over the years had doubts about Hernandez's guilt.
Robert Del Tufo, a former New Jersey Attorney General, told ProPublica that charging decisions can be particularly challenging when there's great pressure from the public and police who believe the right perpetrator of a high-profile crime has been apprehended.
"It's not an exact science, and it's nerve wracking," Del Tufo said. "But there are times where you have to decide it wouldn't be a good thing to start the criminal justice system against a person who you just don't believe you can prove guilty. The police may think you're crazy, but you just have to explain to them why you made your decision."
Vance didn't speak publicly about the case until after Hernandez's arraignment. Asked how confident he was in the case, Vance answered:
"Not that I'm afraid to answer it," he said, "but it's really premature for me to answer it at this time."
He added, "This is the beginning of the legal process, not the end. There is much investigative and other work ahead."
Nineteen months later, with no public disclosures of what that investigative work produced, Vance and his prosecutors have shown no signs of backing off. Their next critical challenge will come on March 17 at what is likely to be a lengthy hearing on the admissibility of Pedro Hernandez's confession.
At the center of all the argument will be the evidence that isn't there: the hours and hours of his untaped interrogation.
WNYC's Robert Lewis contributed reporting to this story.