In April, after his client was sentenced to 25 years to life for kidnapping and murdering 6-year-old Etan Patz—a New York City boy whose disappearance in 1979 gripped the nation and forever changed how missing children cases are handled—Harvey Fishbein vowed to appeal.
“While some may believe that justice has been served, it has not,” Fishbein said in the Manhattan courtroom where a jury had convicted Pedro Hernandez during an emotional, five-month retrial. “No one in this courtroom should feel good about what transpired over the course of this case.”
Of course, for many, including the long-suffering parents of Etan Patz, the guilty verdict was overdue justice that solved a tragic, nearly 40-year-old mystery: what happened to the sweet blonde boy who vanished without a trace on May 25, 1979, the first day his parents relented and allowed him to walk alone less than two blocks from his Prince Street apartment to his school bus stop.
More than six months later, Fishbein tells The Daily Beast he remains just as convinced that 56-year-old Hernandez—whose first trial on the same charges ended in a hung jury in 2015—is an innocent, mentally ill man who can’t tell fact from fantasy and was coerced into a false confession. He also contends that another man, longtime FBI suspect and convicted pedophile Jose Ramos, who is jailed in Pennsylvania, is likely to blame for the child’s disappearance. But he and Hernandez’s other lawyer, Alice Fontier, have decided they will no longer lead the case. They had approached the Center for Appellate Litigation, a legal team that represents indigent clients, with the case, and during the summer, the group officially became Hernandez’s lawyers of record.
Fishbein, a criminal defense lawyer in private practice, became Hernandez’s court-appointed attorney in May 2012, after the New Jersey father with no prior criminal record told police he was responsible for one of the most high-profile missing children cases in the city’s history. In a videotaped confession, with no lawyer present, he told authorities he strangled Etan the morning he disappeared. When Hernandez was 18, he worked in a SoHo bodega on the same corner as Etan’s Prince Street bus stop. He said he offered Etan a soda to get him in the basement of the store, then something “snapped” inside of him. “I tried to stop, but I couldn’t,” Hernandez told authorities calmly as he described how he choked Etan, put his limp body in a bag while he was still breathing, then threw him out in a trash heap a couple of blocks away. The taped admissions came after nearly seven hours of unrecorded police interrogations.
It’s not unusual for an appellate team to take over, especially for an assigned lawyer, but Fishbein and Fontier had to grapple with the decision to give a case they’d seen through two nearly five-month trials to someone else. “It’s very hard to let go, but it was the absolute right decision,” Fishbein said. “We’re trying to help [the appellate lawyers] as much as possible, but it’s important to have fresh eyes on this. I don’t know what issues they will choose to raise on appeal, but the issues in this case aren’t just legal technicalities… we’re talking about issues that go to a fair trial, things that go towards preventing innocent people from being convicted. And that didn’t happen here.” To Fishbein, emotion won out over evidence in this case—a case that is built largely on memories from nearly four decades ago.
Etan’s story in 1979 shook the city and grabbed headlines across the country. Posters with his beautiful little face were plastered everywhere—he was the first missing child to appear on milk cartons, and the day he went missing became National Missing Children’s Day. In scores of articles, the heartbreaking case of Etan is referred to as a watershed moment in the country’s history: It helped push forward measures to aid missing children, but also stoked parents’ anxieties and changed how parents watched over their kids. The Manhattan assistant district attorney prosecuting Hernandez’s case, Joan Illuzzi, referred to Etan’s disappearance as a “cautionary tale, a defining moment, a loss of innocence,” during her opening statement at both trials. It was also one of the city’s most famous unsolved cases.
In April 2012, nearly 33 years after Etan went missing, police decided to dig up the floor in a SoHo building near Etan’s family’s home. Two years earlier, at the urging of Etan’s dad, Stan Patz, Manhattan District Attorney Cyrus Vance Jr. had vowed to give the cold case a fresh look. At that time, Jose Ramos, a jailed pedophile, was still the prime suspect, and the man the Patz family then believed killed their son.
The Patzes have never moved, or changed their phone number, despite countless unwanted calls—they knew Etan had that number memorized. Police were searching for Etan’s remains in the space, once home to a handyman who had a relationship with the Patz family. They didn’t find anything—but soon police received a different tip. Hernandez’s brother-in-law, Jose Lopez, had seen Etan in the news again, and called police. He said he’d heard second hand that Hernandez told church group members decades earlier that he’d killed a child. Lopez thought it could be Etan (Lopez now says that he deserves a reward for this tip). Early on the morning of May 23, 2012, police came knocking at Hernandez’s door, in Maple Shade, New Jersey, where he lived with his second wife and daughter. Several hours later, they would have his confession. He’s been in jail ever since.
The center of the case against Hernandez, and the most disputed aspect, are his own words—things he said to police and several others more than 30 years earlier. There is no physical evidence, no eyewitnesses, no fingerprints linking Hernandez, or any other suspect, to Etan’s disappearance. The boy was declared dead in 2001, but his body was never discovered. Police never found any witnesses who said they saw Etan at the bus stop where he was headed the morning he went missing. Julie Patz, Etan’s mom, watched her middle child walk about a block from the family’s loft, wearing his book bag and beloved pilot’s cap, and holding a dollar she said he planned to use to buy a soda at the bodega—then he was never heard from again.
Hernandez, a disabled factory worker, has an IQ of 70, which is considered low. He has a history of mental illness and takes anti-psychotic medicines. Psychiatrists have diagnosed him with schizotypal personality disorder, a condition that can include paranoia, severe social anxiety, and deluded thinking. His daughter, 27-year-old Becky, a witness for the defense, testified at both trials about her father’s strange behavior: seeing visions of angels and demons, watering a dead branch believing it would grow, talking to himself, and barely leaving the house, except to go to church on Sundays. He was also controlling and had little interaction with others outside his wife and daughter. Since telling police that he choked Etan, the small, soft-spoken native of Puerto Rico has given investigators and mental health experts a variety of iterations of what happened on that gray and gloomy day (which he remembered as clear and sunny) when Etan disappeared. Sometimes he said he didn’t do it, sometimes he told stories about having other people in that basement with him when he strangled the boy, sometimes he didn’t seem to know what happened at all. Mental health experts have said he can’t tell reality from fiction, that he’s unreliable and highly suggestible, all of which make him vulnerable to a false confession. “I think anyone who sees these confessions will understand that when the police were finished with him, Mr. Hernandez believed he had killed Etan Patz, but that doesn’t mean that he actually did,” Fishbein told reporters in 2014, when he was fighting to keep his taped confessions out of the first trial. “And that’s the whole point of this case.” None of this means he couldn’t have done it.
The juries in both trials had to grapple with an accused killer who had confessed—and they had more than three hours of his confession tapes to watch—then pleaded not guilty, but still couldn’t definitively say whether or not he killed a child. He didn’t testify at either trial, and barely ever spoke, aside from quietly uttering “no” when the judge asked if he wanted to say something at his sentencing. They also had the prosecution’s assessment of Hernandez, which was quite different from the defense’s portrayal. Prosecutors showed video clips of a younger Hernandez socializing with family. They said he wasn’t mentally feeble. He was a pretty good auto mechanic, he had taught himself to play the accordion, and he had skills enough to hold jobs through the years, before he suffered a back injury at a factory and figured out how to collect disability payments.
They called him manipulative and cunning. They brought up his years of cocaine abuse and his volatile temper. They said he was faking his mental illness, and that his confession to police was him finally coming clean after holding onto a terrible secret for decades that saddled the religious man with guilt: He snatched Etan into that basement to sexually abuse him, then strangled him to hide what he had done.
Hernandez never said he sexually abused Etan—he always said he didn’t know why he did it—but prosecutors said he was lying. There’s no evidence he’d ever seen Etan before, but the prosecution’s theory was that Hernandez had targeted Etan for sexual reasons. “[Hernandez] saw this beautiful little boy, day after day,” Assistant District Attorney Iluzzi said during the first trial. “One day he acted on an impulse.” Prosecutors didn’t claim to have any records of Hernandez sexually abusing other children. Fishbein’s response to this motive: “You’re not a pedophile when you’re 18, then stop being a pedophile when you’re 19. Like everything else in this case, it makes no sense.”
The other key piece of the prosecution’s case were incriminating statements Hernandez had made to a church group, a friend, and his estranged ex-wife in the years right after Etan’s disappearance. They all offered varying accounts about him strangling a young person in New York. He broke down crying at his charismatic Catholic religious retreat, saying he had choked a boy and put him in the garbage. He told a friend it was a black kid who threw a ball at him and he “lost it” (the friend didn’t take him seriously). He told his first wife, before they got married, that a “muchacho” tried to “violate him” and he retaliated violently, strangling him. None had gone to authorities with information before Hernandez was arrested. Hernandez also stopped working at the bodega soon after Etan went missing, though it’s not clear exactly when he left. He headed back to Camden, New Jersey, where he’d lived since the age of 11, after his family moved from Puerto Rico.
Under New York law, a person cannot be convicted on his or her words alone. For juror Adam Sirois, the lone holdout in Hernandez’s first trial, which ended in a mistrial after 18 days of jury deliberations in May 2015, there was little else he could point to aside from Hernandez’s words, and that was not enough, he said. “I still think this a travesty of justice,” Sirois told The Daily Beast. “It doesn’t matter if he confessed a million times—he has mental issues, what else is there to back up this story that’s not circumstantial, where are the evidence and facts?” Sirois has been vocal about this opinion since the first trial ended in 2015. So have several of his co-jurors, who were convinced of Hernandez’s guilt. They’ve become friends with the Patz family, and attended the second trial. After the mistrial was announced, and jurors gave a press conference, one yelled to the cameras on the way out: “Pedro Hernandez, you know what you did!”
Perhaps the most troubling aspect for Sirois was Hernandez’s confession to police. “They used the full weight of the system on a man that’s mentally challenged,” he said. When NYPD detectives picked Hernandez up, and took him to the prosecutor’s office in Camden, they took his keys, wallet, and cellphone—then proceeded to question for him for nearly seven hours before he finally said something incriminating. That’s when they switched on the camera, and read him his Miranda Rights—his right to remain silent and to have an attorney. He began to tell them the story of how he strangled Etan. The detectives who transcribed his confession, added “I am here voluntarily” to the statement, even though Hernandez is never heard saying that on tape (he testified that Hernandez said that before recording).
The detectives comforted him, patted him on the back, and told him the strength of the Lord was with him in the 25-minute video. Detectives testified that during the unrecorded hours, Hernandez asked several times to go home, and they told him he could leave, but after they asked him a few more questions. Fishbein had argued that Hernandez thought he was in custody—and thus should have had his rights read—from the moment they began questioning him in the cramped, windowless room. And, even when they eventually read him his rights, he didn’t have the mental wherewithal to understand what that meant.
“We have no idea what really happened during all those hours, what those experienced detectives said to him—I think something inside of him broke and he started repeating, and internalizing what they wanted to hear,” Sirois said. After the first confession, NYPD took Hernandez to SoHo, where he walked detectives through the blocks where he said he strangled Etan, then carried his body to the trash in a bag—they captured this on grainy cellphone video. He was then taken to Assistant District Attorney Armand Durastanti’s office, and answered several more hours of questions that lasted into the early hours of the next day, May 24. In his quiet, high-pitch voice, he continues to tell versions of his confession, with no explanation of why he did it. At one point in the video, he stands, calmly showing how he wrapped his hands around Etan’s neck—and imitated the way the boy gasped for breath.
There’s something else that leaves Sirios convinced that Hernandez is not guilty—to him, and others, including a former FBI agent and federal prosecutor who testified, there is a more likely culprit. Jose Ramos—who’s been jailed in Pennsylvania for decades, since sexually assaulting two boys there—used to date a woman that was hired to walk Etan and other children home from school when there was a bus strike in the weeks before he went missing.
Ramos, who at one point lived in a drainpipe in Van Cortlandt Park, where he tried to lure children, was known to have a penchant for young blond blue-eyed boys that looked like Etan. On a screen in court, Fishbein flashed a photo of Ramos’ girlfriend’s young, sandy-haired son, who Ramos molested, next to an eerily similar photo of Etan. There was also a statement from Etan’s childhood best friend to investigators years earlier, that said Etan planned on going away with his friend Johnny soon before he went missing, that Etan was afraid of his mom finding out and that Johnny was going to give him a lot of presents. Fishbein suggested Ramos was Johnny. On the stand, the friend, now a 44-year-old woman, said she didn’t remember saying that, and now believed “Johnny” was imaginary.
Ramos was long the FBI’s prime suspect. He told a former federal prosecutor, Stuart Grabois, that he was “90 percent sure” that a boy he had picked up in Washington Square Park the day he went missing, and brought back to his apartment for sex, was Etan. But he said he let the boy go and put him on a train to Washington Heights. Former FBI agent Mary Galligan, who worked on the Patz case for 10 years, and eventually led the agency’s 9/11 investigation in New York, testified at the second trial, when asked by prosecutors, that she believed Ramos was the child’s murderer. The FBI, however, did not have jurisdiction to bring charges against Ramos, and the Manhattan DA’s office never felt they had enough evidence.
Ramos has said he would invoke the Fifth Amendment to avoid incriminating himself at trial, and has repeatedly denied being the killer. For years, the Patz family believed Ramos was the murderer. On Etan’s birthday, and the anniversary of his disappearance, Stan Patz would send a missing child poster to Ramos, with “What did you do to my son?” written on the back. The Patzes brought and won a civil suit against him, declaring Ramos responsible for Etan’s death in 2004, but had the decision reversed in 2016, after they became convinced that Hernandez was the killer while sitting through the first trial. “This man did it,” Stan Patz said after the mistrial. “He said it. How many times does a man have to confess before someone believes him?”
Several legal experts The Daily Beast spoke with said that while a reversal of a guilty verdict is very difficult, an appeal in this case would not be frivolous. Issues surrounding Hernandez’s confession, the slim evidence against him and the possibility of another culprit, could all be brought up on appeal. James Cohen, a Fordham Law School professor and expert on criminal procedure, thinks this case “absolutely” has a chance at winning an appeal. “If you take a step back, and it’s hard to take a step back—sometimes it’s even hard to take a step back for judges because of the heinousness of the crime—you’ve got another person out there that there seems to be a fair amount of evidence against, and you’ve got more than arguable violations of some of our fundamental rules, including custodial interrogations.” Hernandez’s current legal team, The Center for Appellate Litigation, declined to comment for story.
There’s another potential issue that experts said could likely be used on appeal: jury contamination. After the retrial jurors came to their guilty verdict, after nine days of deliberations, it was revealed that at least some of them knew that jurors from the first trial were sitting with Etan’s family in the courtroom. They were told by a court officer that the previous jurors were coming to the retrial. No one in the retrial was allowed to mention the previous trial, it was called a prior proceeding. Fishbein tried to get a hearing on jury contamination after the verdict, saying the case was so emotionally charged that knowing previous jurors were in support of guilt could sway the case. The judge denied Fishbein’s motion, and let the sentencing move forward.
An appeal on Hernandez’s case is expected within a year, according to Fishbein. But whatever happens moving forward in the tragic case, Fishbein has said there will likely never be the outcome everyone is looking for. “Unfortunately, in the end, we don’t believe this will resolve the story of what happened to Etan in 1979.”