June 06, 2017 by
UPDATED

Mistrial Declared in 1979 Missing Boy Case

Ben Bedell, The Associated Press    | 0 Comments

Assistant District Attorney Joan Illuzzi-Orbon and defense attorney Harvey Fishbein at Manhattan Supreme Court on Friday.
Assistant District Attorney Joan Illuzzi-Orbon and defense attorney Harvey Fishbein at Manhattan Supreme Court on Friday.
AP/Bebeto Matthews; Reuters/Brendan McDermid

The Manhattan district attorney’s search to solve what he described as “one of the city’s most painful and unresolved cases” in the 1979 disappearance of 6-year-old Etan Patz ended Friday without a clear conclusion.

After 18 days of deliberations, a jury said for the third time that it could not agree on whether Pedro Hernandez, a married father of three with no prior arrests, was telling the truth when he confessed to police that he murdered the boy.

Acting Supreme Court Justice Maxwell Wiley declared a mistrial after jurors said they were hopelessly deadlocked. They had reached an impasse previously on April 29 and May 5.

Jurors who spoke outside of court Friday said the panel was 11-1 in favor of guilt.

The sole dissenter on the jury, Adam Sirois, said during a 20-minute news conference with the jurors that he could not find enough “corroborating evidence to get beyond a reasonable doubt.”

Sirois, the assistant director of global development at the New York University College of Nursing, said that Hernandez’s videotaped confessions were “bizarre.”

Surrounded by fellow jurors, Adam Sirios, seated left, raises his hand confirming he was the lone holdout juror, after a judge declared a mistrial for Pedro Hernandez on May 8.
Surrounded by fellow jurors, Adam Sirios, seated left, raises his hand confirming he was the lone holdout juror, after a judge declared a mistrial for Pedro Hernandez on May 8.
AP/Bebeto Matthews

Assistant District Attorney Joan Illuzzi-Orbon on Friday requested a June 10 hearing to discuss setting a new trial date.

Manhattan District Attorney Cyrus Vance Jr. said in a statement he believed there was “clear and corroborated evidence” of Hernandez’s guilt.

“The challenges in this case were exacerbated by the passage of time, but they should not, and did not, deter us,” he said.

Etan’s father, Stanley Patz, said he knows who killed his son.

“There’s no doubt in my mind that Pedro Hernandez is guilty,” he said Friday. “I think we have closure already. Our family is unanimous. Hernandez is guilty.”

Patz declined to comment on a motive, saying his son was a “pretty little boy. He was curious—he was trusting. That’s what got him killed. When Pedro Hernandez was 18, he did something terrible, something impulsive and horrific. He’s admitted it to everyone he’s come across.”

Vance thanked the Patz family for their “courage and determination” over the years. He also thanked the jury, who heard the case for more than three months.

Lead defense attorney Harvey Fishbein said, “There will only be resolution in this case when the correct man is convicted. We don’t believe Pedro Hernandez is that man.”

“There were issues with the confession, that they did not turn on the videotape for six or seven hours,” said Sirois, the juror who refused to vote for conviction.

“The Ramos issue added to my reasonable doubt,” added Sirois, referring to Jose Ramos, who had been presented by the defense as an alternate suspect.

Juror No. 5, who identified himself only as Chris, said that, with each of the three votes, more jurors were convinced that Hernandez was guilty: the first vote was 8-4 for conviction, the second was 10-2 and the third was 11-1.

“When Pedro said there was no door on the alley where he said he put the body, for me, that showed he is guilty,” Chris said. “Only the killer could know that.”

Juror No. 10, who identified herself as Jennifer, cited the walk-through video of the crime scene shown to the jury as a factor in her decision to vote for a conviction.

“He said before the walk-through [by Hernandez] that he put the body a block-and-a-half away [from the bodega] and then showed them where he put the body.”

She added: “It was those kinds of details.”

‘We Will Be Ready’

Fishbein said he and his client were disappointed that the verdict wasn’t an acquittal, but he said that if the D.A. decides to retry the case, “we will be ready.”

He said, “My client is not the cunning, planning killer the prosecution says he is.”

Fishbein said his client responded when told go the mistrial, “Does that mean I won’t have to come back on Monday?”

Hernandez has been in jail without bail since his May 24, 2012 arrest and will remain in jail.

Pedro Hernandez
Pedro Hernandez in 2012
AP/Louis Lanzano

During the 10-week trial, with testimony from 51 witnesses, the prosecution portrayed Hernandez as a cunning killer who had wanted to unburden himself by confessing to those he sought to be close to, but who did not want to suffer the legal consequences for his act.

The defense produced experts to support its claim that Hernandez was a suggestible, intellectually impaired man with a history of hallucinations.

The hung jury followed a 10-week trial in which Illuzzi-Orbon relied on nearly five hours of video tapes of Hernandez, in which the now-54-year-old calmly described first to detectives and a prosecutor, and then to a prosecution psychiatrist, how, as a teenage stock clerk working at a bodega on Patz’s route that morning, he had lured the boy down to the bodega basement with the promise of a soda, and then choked him to death.

The videotapes jurors saw of the confession were consistent with stories Hernandez told to four trial witnesses, including his first wife.

Patz vanished while on his first grown-up-free walk to a school bus stop two blocks from his family’s loft apartment in the then-scruffy Soho neighborhood. His parents mobilized a massive search aided by photos of the first-grader, taken by Stanley Patz, a professional photographer.

The Patz photos lived on as an emblem of the national missing child movement, which emerged in the wake of his disappearance.

Despite using dogs, helicopters and harbor craft in the days after he disappeared, and investigations lasting years stretching as far away as Israel, no body or other physical evidence was ever found.

Hernandez never gave authorities a motive, but Iluzzi-Orbon said the defendant was a cunning sex predator.

During its deliberations, the jury of five women and seven men requested to review numerous pieces of evidence.

Jurors asked to see the weather report from May 25, 1979, the day Etan went missing. Hernandez said in one of the video tapes that “it was a nice day.” Weather records produced by the defense showed it was cloudy with occasional rain, and unseasonably cold.

They also asked for cellphone records of calls in 2012 between Hernandez and his brother-in-law, Juan Santana, who the prosecution implied may have known of the crime.

The jury twice asked for a read back of Wiley’s charge with respect to the requirement that some evidence in addition to a confession was required for a conviction.

The jury also requested a readback of the summations of both the prosecution and the defense.

Jurors heard that Hernandez said—first at a religious retreat a few weeks after the crime, then a few years later in conversations both intimate and casual—that he had killed someone while living in the city. The details he gave differed, however. In one account it was a black child, in another a young white man.

Hernandez had never been a suspect in the case, nor had he ever been arrested for a crime, before three New York City police detectives, acting on a tip from a relative, arrived at his home in Maple Shade in 2012 to ask if he would accompany him to nearby Camden’s police station to “talk about a few things.”

Fishbein told the jury that Hernandez’s confessions were the product of lifelong mental illness characterized by visual hallucinations, an IQ in the bottom 2 percent, and threats, suggestion and manipulation by two canny NYPD detectives.

The prosecution relied on Dr. Michael Welner, a psychiatrist who testifies mainly for prosecutors.

Welner told the jury that his examinations of Hernandez led him to conclude that he “fully able to distinguish fantasy from reality.” He also testified as an expert of false confessions generally, saying they were “very rare.” Hernandez, he said, confessed because he realized the police had compelling evidence against him.

Fishbein also called to the stand a former federal prosecutor and FBI agent, and their jail-house informer, who said that Ramos—incarcerated since 1986 on serial child sex assault convictions, who knew the Patz family and lived a short walk away at the time—was the actual killer.

Illuzzi-Orbon told the jury in her closing that Hernandez’s confessions had “the ring of truth. He never retracted them in all those years.” Although the details of the confessions varied, in three instances he said he had killed a child during the time he was working at the bodega.

Fishbein told the jury in a five-hour summation that his client’s account was “improbable and impossible. There is no other evidence in this case except the memories of Pedro Hernandez. And he is an unreliable witness.”

Two witnesses testified that Hernandez, whom the D.A. said returned to his family’s home near Camden only days after Patz disappeared, had told a prayer circle at a 1979 religious retreat that he had killed a child. They never reported the statements to police.

A few years later in an intimate conversation shortly before they married, his first wife, Daisy Rivera, then 16, testified that Hernandez had told her he needed to tell her “something terrible” before they went through with the marriage.

The jury asked for a read back of Rivera’s testimony a day into their deliberations.

“He was somewhere in New York … and someone approached him. He never said his name. He said he was a young man … a white guy, a person,” Rivera said in the testimony.

Under cross-examination, Rivera acknowledged their divorce had been acrimonious and that she had never reported his statements to police before being questioned in 2012.

Hernandez’s confessions had been known to other family members for years, Rivera testified.

On cross examination, Fishbein elicited statements from Rivera and others who knew of the confessions that they had frequently allowed their own children to be with Hernandez unattended.

One witness also testified it was common knowledge within the family that Pedro was “not well,” meaning he had mental illness. Hernandez’s daughter Becky, by his second wife, told the jury her father sometimes described ghostly figures who came to him while he was alone.

Hernandez was diagnosed by defense expert Dr. Michael First as suffering from Schizotypal Personality Disorder.

During Welner’s video-taped post-arrest evaluation, Hernandez casually mentioned that when he was in the cramped basement with Etan, “there were other people there with me.”

He told Dr. First “about a dozen people dressed in white” were there.

Illuzzi-Orbon said in her summation “the defendant’s ghosts seem to appear when it is convenient.”

Read more: http://www.newyorklawjournal.com/id=1202725938087/Mistrial-Declared-in-1979-Missing-Boy-Case#ixzz3ZqvcgUkI

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