commentary by Patrick H. Moore
We’re all probably familiar with the horrible dream scenario where you’ve been having a bad dream and you wake up, only you’re not completely awake, and you remember your bad dream with a sinking heart wondering if it really happened, and then as the cobwebs start to slowly lift you gradually realize that the “dream” was only a “bad dream” and a feeling of vast relief floods your system.
But what if this is precisely your situation and what if it wasn’t a dream but rather a TV show about a murder and as you watch it (or afterwards), you realize to your horror that YOU ARE THE MURDERER? Worthy of Edgar Allan Poe or the Twilight Zone, you say?
This is the peculiar scenario a 53-year-old man named Pedro Hernandez finds himself in concerning the now 35-year-old disappearance of missing poster child Etan Patz.
On the morning of Friday, May 25, 1979, six-year-old Etan Patz left his SoHo apartment in New York City. It was his first time walking the two block from his house to the bus stop by himself. Etan wore a blue captain hat, a blue shirt, blue jeans and blue sneakers. He never reached the bus stop. When he did not come home when school ended, his mother called the police. Etan’s disappearance helped spark the missing children’s movement, including new legislation and various methods for tracking down missing children, such as the milk-carton campaigns of the mid-1980s. In fact, Etan was the first ever missing child to be pictured on the side of a milk carton. He was declared legally dead in 2001.
Etan’s case was officially re-opened in 2012 and on April 19, 2012, FBI and NYPD investigators began excavating the SoHo basement of 127B Prince Street, near the Patz home. It had been discovered that case files revealed the basement had been newly refurbished shortly after the boy’s disappearance in 1979. The basement had been the workshop and storage space of a carpenter who had previous contact with Etan as well as many others in the neighborhood at the time. After a four-day search, investigators announced there was “nothing conclusive found”, including any skeletal or human remains.
It was while watching a TV show about the search of the basement workshop that Pedro Hernandez realized (or re-realized) that he had murdered Etan Patz by strangling him. But although he was quite sure he was the killer, he was not 100 per cent certain.
Jennifer Peltz writes for the AP:
“‘Did I (do) it?’ . It was just a thought that came into my head,” Pedro Hernandez recalls in the psychologist’s report, part of a recent court filing that adds new details about his defense in a case that galvanized the missing-children’s movement. “I was, like, nervous and questioning myself … trying to make sense.”
Hernandez would soon tell police he did choke 6-year-old Etan Patz in 1979, confessing after investigators were tipped (off) that he’d spoken of having harmed a child. But defense psychological experts later found him unsure of whether the brutal scenario he’d described was real or imaginary.
“I believed it in my mind that I did it, but I don’t think I did it,” Hernandez, 53, told one psychologist.
It turns out that Hernandez’ belief that he may have been the killer was not an entirely new realization for him in 2012 after watching the TV show. In fact, back in the early 1980s, he had reportedly told various people including his ex-wife (with whom he’d remained friends) and a church prayer circle that “he’d hurt an unnamed child in New York City.”
But although Hernandez may have confessed his alleged crime to various people 30 years ago, when questioned by the authorities, these folks provided widely varying tales. One person remembers him saying he’d dismembered a boy, while another recalls him strangling a child after being hit with a ball. The reports were all over the map and “even the child’s race varied, according to one of three recently filed defense psychologist’s reports.”
But based on the reports, old and inconsistent though they were, the investigators met with Hernandez in May of 2012 and questioned him for more than 6 hours. At some point in the interrogation, Hernandez confessed on video that “he choked Etan, put the still-living boy into a plastic bag, stuffed the bag in a box and dumped it on a street.”
“I felt like something just took over me.”
Hernandez has been on anti-psychotic medication for the past ten years. He has been diagnosed with schizotypal personality disorder, the characteristics of which include social isolation and odd beliefs.
In the course of his police interrogation, Hernandez said that he’s seen visions of his deceased mother. In his conversations with defense psychiatrists, he explained that he has heard voices ordering him around intermittently since his teens. He’s also seen furniture move without any sign of moving men and has observed people no one else sees hanging around around his house. He told his doctors that “a voice told him to approach Etan and that several mysterious people followed along during the attack, though he also said the memory “feels like a dream,” according to the psychologists’ reports.
Defense psychologist Bruce Frumkin believes that Hernandez’ psychological problems and intellectual limitations (his IQ in the bottom 2 percent of the population) put him “at much greater risk than others” of falsely confessing and make it difficult for him to distinguish real life from fantasy. Frumkin writes:
“His delusional thinking and hallucinatory experiences could have easily caused him to convince himself he was somehow responsible for the boy’s death when in fact he was not.”
This week the judge ruled that at Hernandez’ trial set for early next year, the jurors will be allowed to hear his confession, and that it will be up to them to decide how much weight to give it. Thus the curious borderland between belief and reality “is shaping up to be a central issue in his murder trial.”
Needless to say, the prosecution insists that his confession was entirely legitimate and they will be attempting to limit the admissibility at trial of “expert testimony on the psychological phenomenon of false confessions.”
“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 Manhattan district attorney’s office stated.
The prosecutors naturally have their own psychologists’ evaluations of Hernandez, which to date they have not disclosed. They do note, though, that Hernandez was never hospitalized for psychological problems before his arrest and that he’d been able to hold jobs, apply for government benefits and, on occasion, discuss religion.
Technically, the prosecution has requested that the judge limit any potential false confession expert testimony to factors accepted by the “scientific community,” based on a New York legal standard. Hernandez’s lawyer, Harvey Fishbein, stated, however, in court papers filed by the defense, that testimony provided by Hernandez’ doctors will meet the criteria propound by the “scientific community”.
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I suspect that in reality the jurors get it wrong much of the time. How often? 20 per cent of the time? 30 per cent of the time? My point is that the evidence provided at trial often does not provide solid and unequivocal proof of who did what. Just last week, I read a 1,000 page trial transcript and came away from it quite certain that based on the evidence, it was impossible to conclude beyond a reasonable doubt whether the defendant was actually guilty. Yet the jurors chose to convict in relatively short order.
In the case of Pedro Hernandez, I suspect that there is no way on earth that the jurors will be able to conclude with certainty whether or not his confession was valid. Yet, more than likely, they will reach a hard and fast verdict to acquit or 
convict (probably the latter) at the end of the trial.
In a sense, the jurors will find themselves in a position not unlike Hernandez himself.
Hernandez: Did I kill Etan Patz? I think I did but I’m not sure.
Jurors: Is his confession valid? We think it is but we’re not sure.
“Ladies and gentlemen of the jury, have you reached a verdict?”
“We have, your Honor. We find Pedro Hernandez _____ of the murder of Etan Patz…”