Commentary: Patz Mistrial is Proof Positive For Why Wrongful Convictions Still Happen

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interrogatorEtan Patz was six years old when he disappeared on May 25, 1979, in New York. I, too, was six years old in May of 1979. The case would have a profound impact not only on the community but on the way parents would handle their children.

The case remained unsolved for decades. I had not paid attention to this case until it hung, with one juror holding out. One of the first cases the Vanguard Court Watch followed was the second trial of Ernesto and Fermin Galvan in early 2010, and there was a single holdout juror, a UC Davis employee. The first trial had also hung. Ultimately, in the next trial, that holdout juror turned out to be right, and the jurors in the third trial acquitted the brothers on some charges and the DA’s office ultimately dropped the case.

After reading several articles on the mistrial and comments by the lone holdout, who spoke at length in an interview the New York Post (an article I highly recommend you read), I realized that, but for this juror, a potentially innocent man would have gone to prison. In fact, this case reads like it was actually tried in 1979 and the culprit was exonerated after spending 36 years in prison – except this trial took place in 2015 and what you are about to read is both unconscionable and unfathomable, given what we know about false confessions.

The problem with the trial is that the body was never found, and there is no physical evidence tying Pedro Hernandez to the crime. Mr. Hernandez is, in fact, only tied to it because he confessed to police after a long interrogation that was recorded – but portions of it are missing. Mr. Hernandez suffers from mental illness and quickly recanted the confession.

Moreover, there was a previous confession by a guy named Jose Ramos. He may, in fact, be the more likely suspect – he is currently serving a prison sentence in Pennsylvania and is a serial pedophile.

Mr. Ramos confessed to police that he kidnapped a boy who he was “ninety per cent sure” was Etan. He denied killing him, however, claiming he put him on the subway. Moreover, he had an actual connection to the family – he was 18 years old at the time of the disappearance and he was boyfriend of a lady who had been hired to walk the children to school.

As Amy Davidson of the New Yorker would write, “The doubt in this case was not just reasonable. It was, and is, profound. There was no real physical evidence. Etan’s body was never found.”

She added, “Ramos is a frightening figure, who once tried to lure children into a drainpipe in Van Cortlandt Park, in the Bronx. He’d been living in the drainpipe, and police found pictures of boys Etan’s age among his possessions.”

On the other hand, Mr. Hernandez did not simply confess to police, but, as his first wife testified, “He continued to explain to me that something terrible had happened when he was in New York” and then he described killing the boy.

The jury would deliberate for 18 days, asking about the evidentiary status of confessions.

There were also problems with the confession. Pro Publica, for instance reports that “[h]e said he choked the boy in the bodega’s basement. He offered no motive. And some of his claims contradicted the few accepted facts surrounding the boy’s disappearance.”

They point out, “Hernandez was quickly arrested, and eventually indicted, despite prosecutors discovering no meaningful additional evidence against him.”

Pro Publica notes, “Federal officials privately expressed skepticism about the case. Some prosecutors within the office of Manhattan District Attorney Cyrus Vance also worried that Vance was making a mistake in pursuing a conviction. Several experts interviewed by ProPublica faulted the police interrogation – hours of it went unrecorded – and said Hernandez appeared to fit the profile of someone who might falsely confess.”

But this case ultimately came down to Adam Sirois. As he told the New York Post, “I knew that I would start from the presumption of innocence. I knew that because we are told we should start from that presumption.”

He freely admits there were times when he fully felt that Mr. Hernandez was guilty. He said about the confession: “They are quite hard to watch. If you only saw that, and you had nothing else to consider, yes it would be hard to find him not guilty.” However, “But we’re told we are not supposed to judge a person only on his own words.”

He also found it more chilling to hear the Jose Ramos interview. “For me, it was hard to get over that. For me, Ramos is a serious factor that needs to be considered.”

But what hung this for him was: “For me, the whole case kind of hinges on mental health, which factors into what I think are the false confessions — or at least the likelihood of false confessions being made by him [Hernandez].”

He said, “First of all, false confessions do exist . . . That’s one thing we had to consider. The second factor was both mental-health witnesses for the defense and the prosecution [described] a series of factors that would make someone vulnerable to say a false confession.”

He said that, while he is not a mental health expert, he has a public health background and was asked by the jury to explain the mental health issues to everyone.

Mr. Sirois said, “A lot of the things you have to believe for Pedro to be guilty just don’t add up.”

As the New York Times editorial this morning puts it, “False confessions are far more common than most people realize, and Mr. Sirois, who has a background in public health but not mental health, said he was asked to explain to the other jurors how someone could possibly confess to a crime he did not commit.”

The mental illness factor, the confession being the only evidence tying Mr. Hernandez to the crime, and the missing hours of the confession tape are enough for me to question why this case was being tried at this time.

It was a horrible crime, to be sure, but that crime is not rectified 36 years later by putting the wrong person in prison.

It seems like the defense presented expert testimony on false confessions, but even that does not seem to be enough to overcome the power of watching a man confess to a crime on video.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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7 thoughts on “Commentary: Patz Mistrial is Proof Positive For Why Wrongful Convictions Still Happen”

  1. sisterhood

    When a person is finally released from incarceration, they often want no further contact with our criminal injustice system. Therefore, they lose all the money that they lost while incarcerated. The bigger deal is that the internet will never erase the lies that were published about them.

    Damien Echols and the other men of the West Memphis 3 will never get a cent because of their Alford Plea. I have a feeling he is doing okay, still married, selling his art, helping others when he can, moving forward with his precious life that was almost ended three times by the death penalty. His wife was never able to have his child, due to his incarceration. Perhaps now they no longer want a baby? Who knows? How can you place a price on lost parenthood, the single biggest joy in my own life?

    I suggest that folks who were wrongfully incarcerated are allowed to deduct dollar for dollar, every cent they spent, from city sales tax (city cops wrongfully arrested them) county (jail imprisoned them) , state (d.a. prosecuted) and federal income tax owed for money they spent on bail, lost wages, legal defense, and doctor bills from PTSD.

     

  2. Davis Progressive

    this is a case full of holes, i can imagine that the jurors were horrified of the long time lack of justice for the little boy, but punishing the wrong person doesn’t give him justice.

    for me this comes down to a few key points the lack of physical evidence against the defendant is a key point.  i think they really need to change the rules governing confessions to require that there be corroborating evidence that ties the individual to the crime over and above the confession.  in this case, there really isn’t.  add the fact that there is another and perhaps more likely suspect, and i wonder what those 11 jurors were thinking. we really need better instructions on confessions even with experts who apparently did testify in this case.

  3. Davis Progressive

    the innocence project warned of this problem as early as december 23:

    After an in-depth investigation, ProPublica.org — in co-production with WNYC— published a story today in which it reveals that the New York City police failed to record the interrogation of Pedro Hernandez, the man who, according to investigators, claims to have killed Etan Patz. The story gives a detailed account of how this single misstep could present challenges for the upcoming trial for this notorious missing-person case.

    ***
    After an in-depth investigation, ProPublica.org — in co-production with WNYC— published a story today in which it reveals that the New York City police failed to record the interrogation of Pedro Hernandez, the man who, according to investigators, claims to have killed Etan Patz. The story gives a detailed account of how this single misstep could present challenges for the upcoming trial for this notorious missing-person case. – See more at: http://www.innocenceproject.org/news-events-exonerations/lack-of-recorded-interrogation-could-affect-trial-of-etan-patz-case#sthash.txvjA5k9.dpuf
    After an in-depth investigation, ProPublica.org — in co-production with WNYC— published a story today in which it reveals that the New York City police failed to record the interrogation of Pedro Hernandez, the man who, according to investigators, claims to have killed Etan Patz. The story gives a detailed account of how this single misstep could present challenges for the upcoming trial for this notorious missing-person case. – See more at: http://www.innocenceproject.org/news-events-exonerations/lack-of-recorded-interrogation-could-affect-trial-of-etan-patz-case#sthash.txvjA5k9.dpuf
    ProPublica reports that both of the people overseeing the Patz investigation — Manhattan District Attorney Cyrus Vance and New York Police Commissioner Raymond Kelly — have cited the mandatory taping of interrogations as “perhaps the single most important tool in preventing wrongful convictions.”  In addition, the publication reports that the New Jersey office at which Hernandez was questioned is fully equipped to record interrogations, and that at that particular office, it is, in fact,  mandatory that all questioning of suspects be recorded. According to the story, “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.”

    Harvey Fishbein, Hernandez’s lawyer, told ProPublica that “the untaped interrogation of Hernandez violated New Jersey law.” In addition, he says that his client’s statements amount to a false confession because Hernandez, he claims, has a long history of mental illness.

    ***

    – See more at: http://www.innocenceproject.org/news-events-exonerations/lack-of-recorded-interrogation-could-affect-trial-of-etan-patz-case#sthash.txvjA5k9.dpuf
    After an in-depth investigation, ProPublica.org — in co-production with WNYC— published a story today in which it reveals that the New York City police failed to record the interrogation of Pedro Hernandez, the man who, according to investigators, claims to have killed Etan Patz. The story gives a detailed account of how this single misstep could present challenges for the upcoming trial for this notorious missing-person case. – See more at: http://www.innocenceproject.org/news-events-exonerations/lack-of-recorded-interrogation-could-affect-trial-of-etan-patz-case#sthash.txvjA5k9.dpuf

  4. sisterhood

    I never fully understood the mental illness/anguish associated with a made up confession until the Dixon Police Force lied to me while interviewing me without my lawyer present. They tried every trick in the book to get any kind of dirt on my family member, because I believe they realized, after they arrested him without any kind of meaningful investigation, that they had made a grave error.

    I now understand how someone may confess to something they did not do. Unscrupulous police will lie in a million ways to get a confession. Luckily for me, I was strong enough to call them on their lies. They then back-pedaled and claimed it was all a big mis- communication. It was not a miscommunication. It was a lie, plain and simple. Shame on them.

    I would never advise anyone to talk to Dixon Police Force without a lawyer present, even if they threaten to send CPS to your home or high school to harass your kids. Call their bluff. Have your kids tape any interview.  Explain to your kids their legal rights. If necessary, hire a lawyer who specializes in CPS cases to accompany your kids. Tell the high school you do not give them permission to allow cops or CPS to interview your kids without your lawyer present. Have your kids bring a trusted friend to the interview, if your school refuses to cooperate.  With our age of cell phones comes great opportunity to catch/record unscrupulous cops in their webs of deceit.

    We can also catch the honest cops doing a good job, protecting their communities.

  5. Tia Will

    sisterhood

    They tried every trick in the book “

    I think that the operative word in your post is “trick”. I have heard directly from police officers that they are allowed to lie ( which I see as a form of trickery) to people to get them to confess or provide information that incriminates someone that they believe committed a crime whether or not they have physical evidence to support their assessment.

    In a “justice” system, there should be no use of “tricks” or “lying” or threats to potential witnesses or the accused. Threats of deportation, or having a child taken away, or loss of a job should never come into play in extracting information from the accused or a potential witness. Individuals should never be harassed in their homes or at their work place or schools. And yet, these seem to come up frequently as common techniques used in law enforcement and the judicial system and are even praised when used by police and the prosecution, but uniformly reviled when there is any suggestion that the defense may be using similar deceitful tactics. What we need badly is a judicial system focused on ascertaining the truth and establishing a just outcome, not winning another case.

     

    1. Miwok

      It was always funny to watch TV or Movies with PD or Prosecutors, or Police/Sheriff. They laugh at how much of what they see is fantasy, and illegal. They can use some persuasion, but the trained investigator will elicit what they can from persuasion, not intimidation or lies. I have seen video of actual interrogations to this effect.

      If the Officer lied or intimidated a suspect, and the suspect was mentally ill or naive, is that Justice? Truth? Usually they have to have evidence to even arrest you, anything else is just a conversation.

  6. sisterhood

    Their “evidence” was the remarks of a mentally ill woman, who we forgive, because of her illness. And a tiny amount of medically prescribed cannabis found when they ransacked his home.

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