Judge Will Determine If Pedro Hernandez Recording Can Be Used In Trial


NEW YORK (CBSNewYork/AP) — A police detective testified Thursday that Pedro Hernandez initially denied knowing anything about the death of Etan Patz before breaking down and admitting to killing the 6-year-old boy in 1979.

Detective David Rosario testified that after Hernandez told police in 2012 that he did not see Etan at the SoHo bodega where he worked the day the boy disappeared, Rosario noticed a cross being worn around Hernandez’s neck. The detective said he asked the man if he thought he’d go to heaven if he died today, WCBS 880’s Irene Cornell reported.

Hernandez said he believed he would go to heaven and that he had repented for his sins, Rosario testified. Hernandez then asked if police had captured the boy’s killer, according to the detective.

But a couple of hours later, Hernandez confessed to killing Etan.

Etan Patz (credit: CBS 2)

Etan Patz (credit: CBS 2)

A judge will decide whether video of the confession can be used as trial evidence. Hernandez has pleaded not guilty.

On the recording played in court Monday, Hernandez calmly tells police he strangled the child.

“I was nervous; my legs were jumping,” Hernandez says. “I wanted to let go, but I just couldn’t let go.

“I felt like something just took over me. I don’t know what to say; something just took over me and I was just choking him.”

Hernandez demonstrated with his hands around his own neck. He said the boy was still alive when he put him in a bag.

Hernandez said he dumped the body and returned the next day, but it was gone.

Hernandez’s lawyer, Harvey Fishbein, says his client falsely confessed and lacks the mental ability to understand his rights.

Hernandez had been in custody nearly eight hours when the videotape was made, Fishbein said.

“We don’t have a record of what happened in that 7 1/2 hours,” Fishbein said Monday. Hernandez asked to go home a number of times, Fishbein said.

Fishbein also said Hernandez got details incorrect that the killer should know, like where the body was dumped. “We will show he’s wrong all the time,” the defense lawyer said. “He’s unreliable. He’s a terrible historian; he’s inconsistent.”

In 2012, police got a lead that brought them to Hernandez, who had worked at a bodega in SoHo where Etan disappeared.

After agreeing to go to a police station near his home in Maple Shade, New Jersey, he was questioned for about seven hours before detectives advised him of his so-called Miranda rights. They then recorded him saying he lured Etan into the store with a promise of a soda, suffocated him in the basement, put the body in a bag, stuffed the bag inside a box and left it on the street, authorities have said.

A judge will examine the timing of the Miranda warning, an often-disputed legal issue that turns partly on whether a suspect felt free to leave during any questioning before the warning. But the judge also will be asked to decide whether Hernandez made an “intelligent and voluntary waiver of his rights, and what role his psychological status and very low IQ play,” Fishbein said.

Hernandez has an IQ of 67, his medical records mention schizophrenia dating back years, and he’s taken anti-psychotic medication for some time, Fishbein said in papers filed in November 2012.

After his arrest, doctors diagnosed Hernandez with schizotypal personality disorder, an ailment characterized by “cognitive and perceptual distortions,” Fishbein wrote. A psychiatrist expert in determining the reliability of confessions found that relying on Hernandez’ statements would be “profoundly unsafe” unless there’s tangible corroborating evidence, according to Fishbein. So far, no such evidence has been found, he said.

Etan’s disappearance led to an intensive search and spawned a movement to publicize cases of missing children. His photo was among the first put on milk cartons and his case turned May 25 into National Missing Children’s Day.

Etan’s body has never been found.

In 2001, his parents obtained a court order officially declaring their son dead.

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