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Defense lawyer in Patz case: 'Story is filled with improbabilities and impossibilities'

Pedro Hernandez, right, appears in Manhattan criminal court

Pedro Hernandez, right, appears in Manhattan criminal court with his attorney Harvey Fishbein, in New York in 2012. Credit: AP / Louis Lanzano, Pool, File

A lawyer for defendant Pedro Hernandez urged jurors at the Etan Patz murder trial Monday to reject his client's disputed 2012 confession to killing the 6-year-old boy in 1979 because a convicted child molester with ties to the boy's family who also confessed was a more likely suspect.

The closing argument by defense lawyer Harvey Fishbein focusing on pedophile Jose Ramos, who was a favorite target of Patz investigators before 2012, marked the first clear suggestion in the trial that lack of evidence of any other child abuse by Hernandez pointed to his innocence.

"This is a case with two confessions," Fishbein said during his five-hour summation. "One by Pedro Hernandez, one by Jose Ramos. Both cannot be true. . . . Which person is more likely to be a predator? Pedro Hernandez who has no history, or Ramos?"

Etan vanished on his way to catch a school bus in SoHo on May 25, 1979. Hernandez, 54, a married father from Maple Shade, New Jersey, told police in 2012 that as a teen working at a bodega near the bus stop he lured Etan into the basement, strangled him and stuffed the body in a box.

Defense arguments before a packed gallery that included Etan's father and sister and, a few feet away, Hernandez's daughter and wife, took up most of the day in Manhattan Supreme Court. The jury could get the case Tuesday or Wednesday, after prosecutors finish their summation.

The defense contends that police were able to manipulate Hernandez during a 7 1/2 hour interrogation because he has a low IQ, and he gave a false confession because he suffers from a mental disorder that can cause him to have visions and blur reality and fantasy.

The confession, Fishbein told jurors, had crucial glitches -- Hernandez got the weather wrong, forgot about a pilot's cap Etan was wearing, incorrectly described his book bag and said he lugged the 40-plus pound body 1 1/2 blocks to an alley that turned out to be a bakery entrance in 1979.

"Pedro Hernandez is the only witness against himself," he said. "The stories he has told over the years are the only evidence. Yet he is inconsistent and unreliable. . . . His story is filled with improbabilities and impossibilities."

Ramos, a drifter convicted twice of child molesting who is still in prison, became a suspect in the 1980s because he had been a friend of a woman who walked Etan to school during a bus strike.

He once told a federal prosecutor he was "90 percent sure" he picked up Etan and tried to have sex with him on the day he disappeared, and allegedly told a jailhouse informant that he molested the boy, according to trial testimony from the prosecutor, the informant and a former FBI agent.

In his closing, Fishbein hit the connection hard, telling jurors the suspicions of Ramos cut against a guilty verdict. "In order for you to convict Pedro Hernandez you must exclude Jose Ramos," he said. "You must exclude him, you must say no way."

One key challenge for the defense is giving the jury an explanation for testimony about incriminating statements Hernandez made in private settings years before police were involved -- at a prayer meeting, to an ex-wife and to a friend.

Fishbein said none of those statements named Etan, they had variations -- in one version he had cut a boy to pieces, in another he killed a black youth in a fight -- that raised doubts about their truth, and no one who heard the "stories" took them seriously enough to alert authorities.

Hernandez, his lawyer said, is a "flawed" person -- with mental limitations and problems, who once had a cocaine habit and became violent toward his wife, according to testimony -- but not one who should be saddled with one of history's most notorious child abductions.

"He is someone you might feel sorry for," Fishbein said. "But he should not be considered a child killer for the rest of his life. . . . This is the time for this to end."

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