Defense lawyers for Pedro Hernandez in the Etan Patz retrial on Friday unexpectedly rested their case early in a major strategic shift designed to block attacks on the credibility of three key witnesses who have implicated a different suspect, convicted child molester Jose Ramos.
The move came after former FBI supervisor Mary Galligan was allowed to describe inculpatory statements Ramos allegedly made to a former federal prosecutor and two jailhouse informants, who were subjected to withering cross-examination during Hernandez’s first trial in 2015.
When defense lawyer Harvey Fishbein announced that he wasn’t going to call the three — depriving prosecutors of the opportunity to raise issues of bias, self-interest and the full criminal histories of the informants — furious prosecutors said they were sandbagged and urged the judge to block the tactic and strike part of Galligan’s testimony.
“This is a classic trial by ambush,” Assistant District Attorney Joan Illuzzi-Orbon fumed to Manhattan Supreme Court Judge Maxwell Wiley.
Hernandez, 55, of Maple Shade, New Jersey, is charged with murder in the long-unsolved 1979 disappearance of 6-year-old Patz in SoHo. Prosecutors say the boy was strangled by Hernandez in the basement of a neighborhood bodega where he worked at the time.
Hernandez confessed after a relative tipped off police in 2012, but the defense has offered a two-pronged defense — that his confession was a fantasy resulting from a mental disorder, and that Ramos, long a suspect, was the real culprit.
The first trial ended with a jury deadlocked 11-1 for conviction, and the retrial began last October. Until Friday, the trials had largely followed the same pattern.
Former federal prosecutor Stuart GraBois and the two informants — fraudsters Jeffrey Rothschild and Jack Colbert — had all testified at the first trial about comments Ramos made hinting that he had run into Etan on the day of his disappearance. But the district attorney’s office attacked GraBois as a grandstander who made money off a book on the case, and the con men as unreliable.
Galligan, an ex-agent who later ran the FBI’s investigation of the Sept. 11 attacks, testified early this week about her role as a young agent investigating Ramos and interviewing him in the 1990s. Prosecutors questioned her belief that he was guilty on cross-examination, and that allowed Fishbein to bring out her knowledge of the statements Ramos made to GraBois and the informants.
By substituting an FBI agent’s credibility for two ex-cons, Illuzzi-Orbon complained, the defense tactic would give jurors “the best of Colbert, the best of Rothschild and the best of GraBois without them being challenged.”
But the defense said prosecutors had themselves to blame for opening the door by challenging Galligan. “She’s a national hero,” said defense lawyer Alice Fontier. “I can’t imagine attacking the credibility of someone like her.”
Wiley dismissed the jury until Tuesday to give himself time to sort through the legal issues. He said he had based rulings on the assumption the three would testify and was “surprised” by the defense tactic, but hesitant to grant prosecutors’ request to strike Galligan’s testimony.
He scheduled a hearing for Monday.