Pedro Hernandez confessed to killing Etan Patz; now what can Cy Vance do about it?

A poster calling for information on Etan Patz's disappearance. ()
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Bill Fleisher is a connoisseur of cold cases.

A former cop and F.B.I. agent, he co-founded the Vidocq Society, a club of experts—retired police detectives, pathologists, prosecutors, and other inquisitive types—who regularly gather for lunch in his hometown of Philadelphia to pick over unsolved murders. The society is named for a 19th Century French detective, the model for some of the first fictional sleuths, and Fleisher is full of grisly erudition when it comes to the history of violent crime. He is not easily baffled.

But Fleisher sounded highly uncertain when I called him the other day to talk about the disappearance of Etan Patz.

“You’ve got a very tough case,” the detective said.

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It has been 11 days since Pedro Hernandez, a disabled construction worker from Maple Shade, New Jersey, confessed to killing the six-year-old back in 1979. The initial shock of resolution—the Post went with “Etan Case Solved” on the front, while the News had “And Here’s His Killer”—has given way to unsettling doubts about the truthfulness of the mentally unstable prime suspect.

Though it is certainly possible that compelling corroborating evidence will emerge, with an intense investigation underway, the case currently appears to rest on Hernandez’s account of impulsively killing the boy in the basement of a bodega, and disposing of his body in an alley.

At a press conference Thursday, Manhattan District Attorney Cyrus Vance said it was “really premature” for him to answer questions about his confidence in the arrest.

“You need to make sure that accountability is levied on the right person,” he said. “Now our task is to make sure justice is brought.”

As Hernandez remains in custody at Bellevue Hospital for psychiatric evaluation, however, and procedural deadlines loom, the prosecutor will soon face wrenching legal and political choices about how, when—and perhaps even whether—to move forward.

Through his spokeswoman, Vance declined to comment.

But to veterans of cold case prosecutions, an exclusive fraternity, his cautious public statements have a familiar ring.

“The stakes are very high for the D.A.,” said Fleisher.

Though the detective has never been directly involved in investigating the Patz case, he’s been following it closely, and he told me that he foresaw a difficult road for the prosecution based on the facts so far disclosed.

“There’s a lot of factors in this case that are alarming,” he said. “You don’t have a body. You don’t have a viable crime scene.”

Then, there’s the rogues gallery of suspects that police have considered over the years—including Jose Ramos, an imprisoned pedophile who was long thought to be the most likely killer—and the possibility, raised by Hernandez’s defense attorney, that this new confession is a schizophrenic delusion.

“If this thing falls apart, it’s going to be an orphan,” said Christopher Morano, former chief state’s attorney for Connecticut, who secured the 2002 conviction of Kennedy cousin Michael Skakel for the murder of a neighbor more than 20 years before. “The last one to touch it is going to take the heat, and that’s going to be the prosecutor.”

Facing reelection next year, Vance cannot afford to gamble—with either the burden of proof or the expectations of his electorate. Both he and his principal opponent in 2009, Leslie Crocker Snyder, campaigned on promises to reopen the Patz investigation. (Patz’s father endorsed Snyder.)

But Vance has a had rough first term, marred by the collapse of the Dominique Strauss-Kahn rape case, and he suffers by comparison to his iconic predecessor, Robert Morganthau. Little wonder, then, that he is proceeding carefully with Hernandez. Vance was conspicuously absent from New York Police Department commissioner Ray Kelly’s press conference announcing the arrest. On Friday, the Post quoted anonymous sources saying the D.A. was initially reluctant to jail the suspect so quickly.

BY THEIR NATURE, LONG-UNSOLVED CRIMES like the Patz disappearance inevitably present prosecutors with difficult decisions.

“These are cold cases for a reason, because they were challenging originally, and the passage of time doesn’t make them any less challenging,” said Clay Thompson, state’s attorney for DeKalb County, Illinois.

In 2008, Thompson reopened the investigation of the murder of Maria Ridulph, a girl whose 1954 disappearance was an Eisenhower-era precursor to the Patz case. For more than three years, investigators focused attention on Jack McCollough, a 71-year-old ex-cop, finding new evidence that undermined the alibi that had originally eliminated him as a suspect. Ridulph’s body, found about five months after she went missing, was exhumed for a forensic examination, and police convinced witnesses to come forward and testify that McCollough preyed on young girls.

For all his painstaking work, though, Thompson has struggled with his burden: Two months ago, a judge acquitted the defendant on a related rape charge, making it more difficult to prove a history of sex offenses.

“It’s unavoidable that high-profile cases like this involve intense pressure from the public, and cases involving the murder of children make that pressure even more intense,” Thompson said. “You are really putting yourself out there, as a law enforcement professional and as a prosecutor, and obviously there’s politics involved in it.”

The Patz case, though, presents several complications that raise the stakes even further. First, you have the confession. On television, it always comes at the end of the episode, but in real life, investigators often have to work backward from an admission of guilt. A common law principle, dating to the 17th century, holds that defendants may not be convicted based solely on their own word. The validity of that rule has been demonstrated by modern psychological research.

“False confessions are nothing new,” said Richard Walton, a former police detective and professor of criminal justice at Utah State University, and author of the textbook Cold Case Homicides: Practical Investigative Techniques.

And the more notorious the murder, the more confessors there are. Morano told me that when he worked the Skakel case, he kept a thick folder known as a “nut file.” Sometimes, the nuts manage to fool prosecutors. In 2006, a man named John Karr was extradited from Thailand to Colorado after he falsely claimed to have killed JonBenét Ramsey. The state’s governor later attacked district attorney Mary Lacy for ordering “the most expensive D.N.A. test in Colorado history.” (Neither Lacy, now retired, nor Karr, who has reportedly undergone hormone therapy and now goes by the name Alexis Reich, could be reached for comment.)

Of Hernandez, Fleisher said: “Obviously, he’s a tormented individual. But what’s tormenting him?”

The fact that the suspect apparently made prior confessions, to family members and in church settings, is suggestive but not dispositive. For example, I once wrote about a preacher who often boasted of committing a murder in order to dramatize his own redemption; charges against him were later dropped for lack of evidence. The Skakel case involved several confessions that were problematic because they could be considered hearsay, or were excluded because they took place in counseling sessions.

“Michael, he came with some mental health issues, but it’s not unbeatable,” Morano said. “He had access to the murder weapon, which came from his house. He placed himself at the scene of the crime, at the time of the crime.”

In the Patz case, by contrast, there is no murder weapon, and little physical evidence of any kind. By most accounts, the police department handled the original investigation incompetently—why was the disturbed stock boy at the neighborhood bodega apparently never interviewed?—and such errors will only grow more glaring if the case moves to trial, where prosecutors will have to deal with what they call “the ‘CSI’ effect.”

“I think there’s an expectation on the part of the public, and juries, that there is going to be some kind of forensic proof, particularly D.N.A.,” said Andy Rosenzweig, former chief investigator for the Manhattan district attorney’s office, and the subject of Philip Gourevitch’s book A Cold Case. “That’s not always the case, particularly in old cases, when evidence collection was not as good as it is today.”

Right now, investigators are sure to be turning over every detail of Hernandez’s life, looking for incriminating patterns.

“If he’s a pedophile, then there are other cases out there somewhere,” said James Adcock, a professor, former coroner and author of a book on cold cases.

Though Hernandez was inconspicuous, detectives are working with the cooperation of family members and a three-hour interview, from which few details of have emerged. A crucial issue will be how well his account jibes with the department’s “holdback information”—details of the case that were never released to the public.

Though the Post reported that Hernandez did disclose such details, their significance remains to be seen: It’s unclear how much information the police had to hold back. The investigators’ task has been further complicated by the speed with which the case has unfolded. Usually, time is one of the few luxuries that cold case investigators enjoy. With expectations low, and the suspect off-guard, investigators can gradually overcome their deficient evidence.