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Defense in Etan Patz case wants to use banana box filled with potatoes to make a point

A private investigator for the defense wheels two

A private investigator for the defense wheels two banana boxes, one empty, top, and the other containing 50 pounds of potatoes approximating the weight of Etan Patz, bottom, in the hallway of Manhattan Supreme Court during the murder trial of Pedro Hernandez on March 16, 2015. Credit: Charles Eckert

Defense lawyers in the Etan Patz murder trial Monday asked to put a banana box filled with 50 pounds of potatoes into evidence so jurors can test defendant Pedro Hernandez's claim in his purported confession about how he disposed of the 6-year-old's body.

Manhattan Supreme Court Justice Maxwell Wiley earlier let prosecutors show jurors a picture of a 48-pound boy squeezing into a banana box, but said he wants a day to decide whether to let the defense put on a similar display, which prosecutors angrily denounced.

"Carrying a body is vastly different from carrying potatoes," argued prosecutor Joan Illuzzi-Orbon, who said Etan was less than 50 pounds, and threatened to offer a 45-pound doll with arms and legs to counter the spuds. "The weight distribution of potatoes is vastly different."

"The jury should know what does it feel like to put 50 pounds on your shoulder," answered defense lawyer Harvey Fishbein. "That's all this is about. Not a boy in a box or doll in a box."

Hernandez, 53, of Maple Shade, New Jersey, told detectives in 2012 that as a teen working at a SoHo bodega in 1979, he strangled Etan in the basement, stuffed the body into a box, and lugged it on his shoulder up the steps and 11/2 blocks to an alley where he left it.

Etan vanished without a trace on May 25, 1979, on his way to catch a school bus that stopped near the bodega. His body was never found. The defense contends the confession was a delusion caused by a mental disorder.

In addition to psychiatric testimony, defense lawyers have tried to convince jurors that the story is implausible and that Hernandez's description of some things -- such as the weather, Etan's clothing and the alley where he left the body -- didn't fit with known facts.

Wiley let prosecutors show jurors the staged photo with a boy in an unclosed banana box to prove it would have been possible for Etan to fit. But Monday, after initially signaling he would allow the potato demonstration, the judge indicated he was leaning against it.

"The way this differs is that . . . [prosecutors] were seeking to answer a yes or no question," Wiley said, explaining that strength was a key variable in the potato experiment, and he couldn't have jurors during deliberations try to hoist the box on their shoulders.

Fishbein told the judge that if he was looking for a yes or no demonstration, jurors should be taken to the bodega basement and asked to hoist the box on their shoulders and follow Hernandez's purported route. "We're not doing that," Wiley said.

The judge, a former Manhattan prosecutor, reversed course on a key issue last week and decided to let prosecutors put in evidence that Hernandez once abused cocaine and hit his wife.

Fishbein told reporters after court he hoped the judge would rule for the defense on the potatoes, so jurors could make an informed decision about whether Hernandez -- about 5 feet, 3 inches tall and 112 pounds in 1979 -- could have done what he confessed to.

"We feel it's very relevant for this jury to get the feeling of what a 50-pound box feels like," he said. "This case is full of improbabilities and impossibilities, and this box is one of them."

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