June 4 2012
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.
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.
“Nobody knows that you’re working the case until you bring it forth,” Walton said. But with Hernandez, the typical timeline has been severely compressed.
“You’ve played your hand once he’s arrested, and then you’re somewhat limited in an investigative sense,” Rosenzweig said. “Unless the guy is going to flee, you’ve waited this long, so what’s the urgency? But the other side of the argument is, if the guy is a pedophile, he could hurt other children.”
Publicity can serve a strategic purpose in cold case investigations. After all, it was news coverage about the excavation of a Soho basement—and the accompanying scrutiny of a handyman who used to work there—that seems to have inspired Hernandez’s family to call the police.
“I really wondered when they started doing all that digging,” Adcock said. “The F.B.I. behavioral guys probably said, ‘Let’s stir the pot and see what falls out.’”
Once suspicion refocused on Hernandez, however, the investigating authorities appear to have split. Since the arrest, newspapers have been filled with anonymous leaks, indicating a covert war over the confession’s credibility. On Memorial Day, the eve of the crime’s 33rd anniversary, Kelly declined to comment when reporters confronted him with questions about a Daily News article citing sources inside the F.B.I. who were “very skeptical.” While such law enforcement factionalism is hardly rare, it is unusual for it to break quite so publicly, and bodes poorly for the prosecution.
“If you’ve got 500 different detectives who worked the case, you’ve probably got 400 different opinions” about the profile of the likely perpetrator, Fleisher told me. “They become dogmatic about their view about what happened.”
For years, many people—most notably, the Patz parents—were sure they knew the identity of the killer: Jose Ramos, a boyfriend of Etan’s babysitter who was later convicted of molesting children. According to Lisa Cohen’s definitive book After Etan, Stanley Patz would regularly send copies of his son’s “missing” poster to Ramos at his prison in Pennsylvania, with a message on the back: “What did you do to my little boy?” Although federal prosecutors went to extraordinary lengths to build a case against Ramos, they were never able to charge him. But in 2004, a New York judge found Ramos responsible for Patz’s wrongful death in civil suit bought by his parents.
“With cold cases, over time, there are always different lead suspects,” Morano said.
But another former prosecutor said the civil court judge’s decision against Ramos creates unusual problems. Ironically, the efforts of an earlier generation of investigators could provide Hernandez’s defense team with an unusually strong argument for reasonable doubt. And what if Ramos really is the right guy? Lingering suspicion has kept him in prison through multiple parole dates, but he has another one coming up in November, and his term expires regardless in 2014.
These are all issues that Vance must weigh—very quickly. While the procedural rules are somewhat flexible in practice, and Hernandez’s mental condition could allow for an involuntary commitment, at some point soon, Vance will have to decide whether to proceed with an indictment.
“Once they indict, they’re on a judge’s schedule,” said Daniel Gitner, a former federal prosecutor who is now a criminal defense attorney at Lankler, Siffert & Wohl. “They have to feel like they’re ready.”
In theory, the district attorney could delay an indictment, buying time to fully develop his evidence and witnesses. But such a step could also be seen as signaling weakness in the case, and would raise the possibility—however remote—that Hernandez could walk out of the hospital, free.
“They would have to be willing to take that publicity hit,” Gitner said. “And secondly, once he’s free, he’s free. If something happens, it’s on their watch.”
So, while the case could still spring more surprises—maybe Hernandez kept a memento, or maybe he will plead guilty—the most likely scenario is that Vance will have to assess an imperfect collection of facts.
Juries have proven willing to look past evidentiary weaknesses in other cold cases: even, very rarely, the absence of a body. The Vidocq Society, for instance, helped to solve the case of Scott Dunn, who was bludgeoned to death in Lubbock, Texas in 1991. Just two weeks ago, more than a decade after two people were convicted, Dunn’s remains were finally unearthed near the murder scene.
“By accident,” Fleisher said. “The utility company found a bag full of bones.”
When he thinks about the Patz disappearance, though, Fleisher compares it to the most bewildering mystery he’s ever encountered. In the that one, Philadelphia’s so called “boy in the box” case, investigators found a bruised body of a four-year-old, but despite an exhaustive publicity campaign, were never able to determine his identity. A few years ago, a woman came forward with a story involving her dead mother, child trafficking and abuse. The witness was mentally unstable, but Fleisher found her account credible. “Yet you couldn’t prove anything, and you couldn’t disprove anything,” he said.
Fleisher believes that Vance may have found himself in a similar predicament. “What you do have is a guy who was a person of interest back then, who fell through the cracks,” the detective said. “What you do have is a man who has over the years confessed several times to the crime, to various people.”
Hernandez may in fact be insane, but that doesn’t mean he’s innocent: Obviously, anyone deranged enough to murder a child is also unlikely to make a reliable witness against himself. Even the heartbreaking account of the body’s fate—scooped up heedlessly as trash—has a plausibly random ring to it. But will that be enough to satisfy a jury, the public and the long-grieving family?
“Prosecutors—and I’m going to offend a lot of people here—but prosecutors are very politically astute. They don’t want to be perceived as losers,” Fleisher said. “Vance is distancing himself. But just because he’s distancing himself, it doesn’t mean they don’t have the right guy. Maybe it just means they have an unwinnable case.”