by Joaquin Sapien
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Last week, a federal appeals court overturned the conviction of Pedro Hernandez for the murder and kidnapping of Etan Patz, a 6-year-old New York boy who disappeared in 1979 in one of the most famous missing child cases in U.S. history.
The three-judge panel ruled that a trial court judge had given jurors “manifestly inaccurate” guidance regarding a confession Hernandez made before he had been advised of his Miranda rights. Jurors asked whether, if they decided the first confession was involuntary, that meant they should disregard two videotaped confessions that came afterward.
The trial judge said “the answer is no” and offered no further explanation.
The appellate judges, in their opinion, said that by doing so, “the state trial court contradicted clearly established federal law.” They threw out Hernandez’s conviction and ordered that he be released or retried. He is now 64 years old and has served 13 years of a 25-years-to-life sentence in a case that has haunted New York City for decades.
The body of the 51-page decision echoed stories published by ProPublica starting in 2013, before Hernandez was convicted, that raised questions about the veracity and legality of his confessions.
We reported that Hernandez met many of the criteria of a person prone to making false confessions, a growing phenomenon and leading cause of wrongful conviction. We also discovered that Hernandez’s statements to law enforcement and others over the years were inconsistent and did not match the known facts of the case.
On the morning of May 29, 1979, Patz was allowed to walk alone to his school bus stop two blocks away and then vanished. His disappearance ignited national concern around missing children, as he became one of the first “milk carton kids” and his image was plastered across New York City.
A massive search ensued, and law enforcement spent thousands of hours looking for him: Divers plunged into the East River searching for his remains following a tip from a psychic. Leads were chased as far as Israel. But no arrests were made. No charges brought.
In 2012, New York police and the FBI suddenly and very visibly took action on another lead, digging up the basement of a workshop near the Patz family home used by a carpenter who knew Etan and was briefly considered a suspect.
Nothing came of the dig, but the surge of media attention prompted one of Hernandez’s relatives to call police with a tip about rumors that he had a role in the disappearance of Patz.
New York police officers arrived at Hernandez’s home in New Jersey on the morning of May 23, 2012, and brought him to a local prosecutor’s office to question him. In the ensuing hours, Hernandez asked several times to go home, said the officers were trying to trick him, sobbed, clutched at his stomach, lay on the floor in a fetal position, had a fentanyl patch placed on his chest to treat his chronic pain, and mentioned his mental illness diagnoses. After more than six hours, he told officers that he “did it.”
He said he offered Patz a soda to lure him down into the basement of a bodega where he was working. He said he choked the boy, placed the body in a garbage bag, put the bag in a box and left it around the corner in broad daylight.
It wasn’t until after that confession that the officers read Hernandez his rights. They then had him repeat his statement in two video-recorded interviews over the next 24 hours. The stories he told contained several inconsistencies.
The federal court found that the trial court judge’s instruction to the jury about the confessions was “manifestly inaccurate,” that the jury should have been given more thorough instructions and that it could in fact disregard the recorded confessions.
The jury, which had asked about the un-Mirandized confession on the second of nine days of deliberations, was “clearly grappling with what weight, if any, to give to the confessions,” the appeals court wrote.
ProPublica covered the early phases of the case against Hernandez extensively, interviewing the people to whom he supposedly confessed over the years and speaking with a variety of legal and psychological experts about how police tactics can induce false confessions.
We found early on that Hernandez’s previous claims of having harmed a child not only conflicted with each other but bore little resemblance to the details of his confession to police. Once, for example, he said that he had killed a Black child. Patz was white.
We also learned that the bodega Hernandez was working out of had become a kind of police hub for the officers searching for Patz. Hernandez said in one of his confessions that he tossed the boy’s book bag behind a refrigerator there. It was never found.
Experts told us that a handful of factors are often at play in producing false confessions and that Hernandez’s situation contained many of them: He had low IQ, had a history of mental illness, and confessed to a high-profile crime where many of the details were widely known over the course of an intense, long interrogation.
The judges, in their decision, took note of many of these same characteristics, which, in their view, made it all the more important for the jury to have proper instructions to evaluate the confessions.
ProPublica also highlighted how the trial judge, Maxwell Wiley, held a hearing early in the proceedings to determine for himself whether Hernandez was properly informed of his rights and if he had the capacity to meaningfully waive them. He decided that the confession could be used. Later, Wiley, a former Manhattan prosecutor, limited the questions that could be asked about it and kept some subsequent hearings on the matter secret, drawing fire from several news organizations. Wiley, who is now retired, did not respond to calls for comment.
In an email, Cyrus Vance Jr., who handled the case against Hernandez as Manhattan district attorney, said it was “exceptionally challenging given the passage of time but also very strong.”
He said the recent decision came as a surprise, as other appellate courts had reviewed and sustained the confession and verdict.
“Clearly, the jury heard substantial expert testimony from both the prosecution and the defense, and considered both and the legal instructions by the court during deliberations and before the verdict,” he said, adding that he continues to believe Hernandez is guilty and that his “thoughts are with the Patz family and with Etan.”
Now Vance’s successor, Alvin Bragg, will have to decide whether to retry Hernandez for the third time. The first of his two trials ended in a hung jury.
In a statement from Bragg’s office, a spokesperson said only: “We are reviewing the decision.”
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