The police announced that they had solved one of the most horrific and long-standing open cases in New York City history, the disappearance of Etan Patz. Perhaps “solved” is a bit of exaggeration, given that Pedro Hernandez confessed to the crime, saying he strangled the child in the basement of a SoHo bodega across the street from the bus stop.
Solved might have suggested that the cops spoke with him 33 years ago and pieced together evidence to prove his guilt. Somehow, despite the enormity of the interest in the case, that never happened. It wasn’t until a family member told police that Hernandez had confessed that they first went to speak with him. And he spilled his guts.
But the New York Times calls this the “worst case scenario.”
“Time is an enemy here,” said Vernon J. Geberth, a retired New York City police lieutenant commander in the Bronx. He said he was struck by the absence of corroborating details in the news accounts of Mr. Hernandez’s confession. “I have to ask myself a question, do they have something they’re not telling us?” he said.
No body. No physical evidence of any sort connecting Hernandez to a crime. And a confession that provides essentially no factual hook beyond he did it.
Why? “Great evidence in court,” [some unspecified detective] said. “When you go to court, you not only have his statement saying that’s what happened, but you have evidence for jurors to see.”
Jurors. That there are 12 people walking around who may one day sit in judgment of Mr. Hernandez is what has the police hunting for proof and for the holy grail — motive, the prosecutor said. “Corroboration is such a legal thing, it’s a thin requirement,” he said. “The question is, do you get the jury to believe this is the real thing?”
Jurors, he said, “care about why.”
Well, not exactly. There is another reason for needing corroboration, that being New York Criminal Procedure Law, §60.50, which provides:
A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed.
This is called the confession corroboration rule, its purpose being to preclude someone from being convicted upon a false confession, where there is no evidence to prove the commission of the crime beyond the confession. After all, there are some folks who inexplicably like to confess to crimes for fun, and there used to be some folks manipulated or coerced into giving false confessions (until
scientific lawprof expert Paul Cassell concluded that evolution never happened and there is no such thing as a false confession, just evil defendants who DID IT!!!).
Hernandez doesn’t seem likely to be a false confessor type, having never confessed before nor been arrested for any crime up to now. And yet there is little with which to corroborate what he said, other than the absence of a little boy for the past 33 years. And that doesn’t do much to show that Hernandez is responsible.
This case will prove an enormously difficult test of the corroboration rule. Nobody wants to see the killer of Etan Patz walk. It was a crime that shocked New Yorkers, who aren’t easily shocked. The loss broke hearts, and there is no parent, if anyone, who doesn’t share the pain. If Hernandez killed this child, committed this heinous crime, then he must not walk.
And yet, there is an excellent chance that the law will require otherwise, in the absence of corroboration. Indeed, this may well be a case where the law, if a judge is bold enough, would compel the grant of a motion to inspect the grand jury minutes and dismiss the indictment for lack of corroboration. Of course, that judge would be assured of a front page picture in the New York Post as the world’s worst judge.
In the old days, the maxim was bad cases make bad law. And this is a very old case. It boggles the mind when contemplating what sort of machinations the prosecution will employ to claim the existence of evidence to corroborate the confession. It’s not that the district attorney won’t try, or shouldn’t try. If they believe Hernandez’s confession (and there isn’t any known reason not to), then pursuing this prosecution seems a duty. Just as it’s the defense’s duty to test that pursuit if it fails to satisfy the requirements of the law, and the judge’s duty to grant the motion to dismiss for that failure.
The scenario is indeed worst case. Of course, if the police had done as thorough an investigation as they would have us believe in the first place, as they lay claim now despite the fact that the extent of their involvement was to answer a phone call and listen to an old man, perhaps there are facts, photos, evidence that will suddenly make sense, suddenly connect, suddenly corroborate this awful confession.
Or maybe the killer of a smiling, happy, beautiful child will go free because they can’t corroborate a thing 33 years after their claims of thoroughness, dedication and professionalism are exposed as crap. Should that happen, you can bet they will blame the judge, the defense lawyer and the law for the outcome. What you won’t hear is the Police Commissioner’s true confession that they screwed up when they failed to properly investigate the disappearance of Etan Patz 33 years ago.