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Judge in Patz Case Forced to Justify Secrecy Decisions

News organizations ask New York appellate court to force judge to unseal hearings on evidence and jurors in famous missing child case.

Several news organizations have filed court papers seeking to compel the judge in the Etan Patz murder case to make public aspects of the trial he has so far kept secret. The proceedings in dispute include the questioning of jurors before the trial's start last month, as well as a handful of hearings on the admissibility of certain evidence.

The news organizations, most of which are providing daily coverage of the trial, assert that the judge, Justice Maxwell Wiley of State Supreme Court in Manhattan, has "violated his state and federal constitutional duties" in shielding from the public both the proceedings themselves and the transcribed records of them.

"All of these closures," the organizations said in the papers filed last week, "occurred without following proper procedures, without making the requisite findings, and without applying the strict legal standards that must be satisfied before the public's constitutional access right may be abridged."

The motion by the news organizations will be heard by the state appellate court. Wiley must respond formally by Friday.

The Patz case is both a high-profile and legally complex one. A former Manhattan bodega clerk has been charged with murdering the 6-year-old boy who in 1979 became the subject of an infamous missing child case. The boy's body has never been found; the former clerk, who confessed to the crime after hours of police questioning in the spring of 2012, has been portrayed by his defense lawyers as mentally ill. And the defense intends to present to the jury evidence suggesting that the boy's real killer is a convicted pedophile who years before was considered the top suspect in the case.

It is unclear why Wiley has determined that the disputed proceedings need to be kept secret. To date, he has merely declared his right to do so, and his intention to continue to do so through the course of what is expected to be a trial lasting several months. He has said in at least one instance that he was doing so at the request of the prosecution and the defense lawyers. Certainly, neither side has publicly complained about the decisions to keep material secret.

ProPublica has spent more than a year examining the question of prosecutorial misconduct. As part of that reporting, ProPublica in 2013 published a detailed look at the Patz case, an examination that raised the question of whether prosecutors had gone forward with the case in the face of real concerns about whether the clerk, Pedro Hernandez, was the right man. The details of his confession did not match a number of the known facts of the case. The confession came after hours of interrogation, much of it not recorded. Several of the people who claimed Hernandez had talked of once having harmed a child gave conflicting accounts of his tale.

Prosecutors with the office of Manhattan District Attorney Cyrus Vance have steadfastly maintained they have enough evidence to convict Hernandez, and since the trial's start have begun to lay out what they say is a convincing criminal case against him. Three people have testified that in the years after Patz's 1979 disappearance, Hernandez, as part of a prayer group, had spoken of having killed and perhaps molested a child.

Hernandez's lawyer, Harvey Fishbein, has in each instance sought to undermine the reliability of the testimony. He has highlighted the discrepancies in the three accounts, and has suggested that, if Hernandez had said such things, they were evidence of his mental illness, not his actual guilt.

Fishbein has also used the cross-examination of prosecution witnesses to raise doubts about the likelihood that Hernandez did what prosecutors have charged: strangled the boy in the bodega basement, tossed away his book bag, placed the boy in a bag, and then a box, and left him on the street in broad daylight. The former bodega manager, for instance, has testified that the basement was kept locked during the hours when prosecutors say Hernandez lured Patz there. And one of the lead police investigators on the case 35 years ago testified that it was highly unlikely the basement of the bodega had not been searched for evidence of the boy and his belongings during the intense manhunt that took place in the days and months after Patz went missing.

On Tuesday, Hernandez's taped confession was played in Wiley's courtroom. News reports said jurors were riveted, many taking notes. But again, Fishbein was able to demonstrate that Hernandez's account was at odds with the few known facts of the case. Indeed, Fishbein was able to highlight ways in which Hernandez's confession differed from the account offered by Patz's mother at the outset of the trial. Those differences involved whether the boy was wearing a hat and the color and type of his schoolbag.

In a case that involves some of the justice system's most debated questions – how police interrogations are conducted, the potential for false confessions, the possible solving of one of the city's legendary mysteries – news organizations and others have been eager for every detail of the prosecution. Wiley's rulings have frustrated them. This week, Wiley decided to make the taped confession available to the news media, reversing his prior position and perhaps signaling ahead of his Friday deadline that he will have to open up more of the proceedings.

"It goes without saying that there is intense interest in the fate of the first man brought to account for the May 25, 1979, disappearance of Etan as he walked to his school bus stop," The New York Daily News said in an editorial last week. "The crime galvanized the city and the nation, as has the push for justice all these years later.

"But the case, big or small, is beside the point. This is America. This is New York. Courts are open. Period."

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