Missing: A Boy and The Evidence Against His Accused Killer

A version of this story was co-produced with WNYC. Listen to it here.

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
Etan Patz.

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 Etan Patz
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 Etan Patz.”

The First Milk Carton Child

When Etan Patz 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.

Unusual Suspects

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 Etan Patz? 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.”

Blind Spot

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 Etan Patz 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 Patz took 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.

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Update, Feb. 14, 2017: A Manhattan jury on Tuesday convicted Pedro Hernandez of murdering 6-year-old Etan Patz in 1979. The jury accepted the prosecution’s argument that Hernandez, then a teenage clerk in a bodega near Patz’s home, lured the boy into the store’s basement, strangled him and disposed of the body in a box on the city streets. The first trial of Hernandez resulted in a hung jury.