Oklahoma Criminal Defense Blog

Pedro Hernandez confessed last month to the murder of Etan Patz, a 6-year old boy who disappeared in New York in 1979.   Indeed Hernandez worked at a small grocery on the corner where the boy was supposed to catch his bus, but some experts are raising questions about the credibility of the confession.

Hernandez is now a family man, confessing to a crime 33 years old.  So, did he commit this crime only and then walk around with the guilt for three decades, or has he killed other people in the interim?  Psychiatrists say it is an odd case.

Hernandez was 18 at the time, and that is about the age when psychiatric conditions such as schizophrenia and bipolar disorder first manifest. It is possible Hernandez committed this murder and then got treatment for the rest of his life, and that could account for his going 33 years without being noticed by the police.  If he started medication, he could have then controlled his symptoms.  People who know Hernandez say he is taking Zyprexa, which is often prescribed for schizophrenia and bipolar.

But back in the 1970s, psychiatric treatment was rarely accessed by someone like Hernandez, a teenager from a large working-class family.  Effective treatment so quickly after first symptoms would have been rare in the ‘70s.  And, for him to avoid the symptoms, Hernandez would have had to stay consistently on his medication consistently, often not done.

His case does not fit known patterns.  For one thing, Hernandez told police he killed the child but did not admit any sexual motives.  Forensic psychiatrists say, however, adult men who kill strangers of school age almost always do it for sexual reasons.  One psychiatrist’s studies cover reports of 1,500 serial killers.  Of those, 50 involved an adult male killing a child who was a stranger.  In all but 3 of those cases, there was evidence of a sexual motive.  Further, in all of those 3 cases, the killers were clearly recognized before their crimes as dangerous people. People noticed them as dangerous.

Hernandez, however, was known to his family and neighbors as married and two children.  Psychiatrists say someone who kills a child at age 18 was likely already crazy- dangerous for a year or two and is not likely to improve a lot by age 42.   If Hernandez was a sexual predator, it would have been very hard for him to silence those urges for a lifetime.

We are reminded that over 100 people confessed to killing President John F. Kennedy when he was assassinated.  Hernandez may be one of these.  But if he did not kill young Etan Patz, who did?

Another suspect did surface, and the Petz family brought a civil case of wrongful death against him in 2004.  The family won the lawsuit against Jose A. Ramos, who said he believed he had molested Etan but did not kill him.  Ramos is in prison in Pennsylvania from a conviction for child molestation in a different.

Details of the confession Hernandez gave are still now known in detail, but as those details are revealed, more of Hernandez will come to light, as well as the details he gave to police – or failed to give.

Trayvon Martin was shot to death in Sanford, Florida last April.  Fred Zimmerman shot him.  That much is known, but too little else is known for sure.

The shooting made national headlines because it involves the “Stand Your Ground” law that allows Floridians to use deadly force in self-defense under certain circumstances.  It also made headlines because Trayvon was African American and Zimmerman was not, and Zimmerman was not initially charged with any crime.  The African-American community and its sympathizers cried “foul.”  Eventually, even the President of the United States came down to make a statement.

Now that Zimmerman has been charged with second degree homicide by a second prosecutor appointed by the governor, the jury will have to decide most importantly what was in the mind of Zimmerman just when he pulled the trigger.  Intent and state of mind are always proved or disproved by circumstantial evidence, and ultimately by arguments about the tiniest details.  The problem in this case is that a lot of details were lost due to the haphazard investigation by the small-town police force.

Zimmerman told police he thought Martin, 17 yrs old, was an intruder in his gated community.  Investigation has shown he was not an intruder.  Martin was a guest at the Retreat at Twin Lakes and his girlfriend was exchanging text messages just before he was shot. Most critically, there were no witnesses to the beginning of the fight between the two, the fight ended with Martin’s getting shot to death and Zimmerman receiving a broken nose and lacerations on the back of his head.  Witnesses saw the two fighting and heard one of them crying, “help,” but it’s uncertain which of them cried out.

Police interviewed Zimmerman only 15 minutes before concluding the shooting was justified.  They never looked for his car, the location of which might have given some perspective on how far he walked to Martin.

Also significant, as reported from the first, was the fact that Zimmerman followed Martin and reported his following to the 9-11 call center.  When Zimmerman made this call, the 9-11 operator told Zimmerman to get back in his car, not to confront Martin.  It is this fact, that Zimmerman disregarded the 9-11 dispatcher, that Martin sympathizers claim makes Zimmerman an aggressor and therefore guilty of causing a confrontation and of killing Martin unnecessarily.  Zimmerman sympathizers claim that a 9-11 dispatcher has no authority to give any directions or legal advice, and that Zimmerman simply continued to follow Martin until Martin attacked Zimmerman.

That would be the nub of the case if Zimmerman were facing a jury in Oklahoma.  The jury would be given an instruction of law as follows: “ A person is an aggressor when that person by his/her wrongful acts provokes, brings about, or continues an altercation.” The instruction also provides the following additional language where appropriate: “The use of words alone cannot make a person an aggressor.”  OUJI-CR 8-53:  Defense of Self-defense – Aggressor Defined.
The jury in Oklahoma would also be given an instruction of law that provides:
“A person is justified in using deadly force in self-defense if that person reasonably believed that use of deadly force was necessary to protect himself/herself from imminent danger of death or great bodily harm. Self-defense is a defense although the danger to life or personal security may not have been real, if a reasonable person, in the circumstances and from the viewpoint of the defendant, would reasonably have believed that he/she was in imminent danger of death or great bodily harm.”  OUJI-CR 8-46: Defense of Self-defense – Justifiable Use of Deadly Force”

The Court of Criminal Appeals has further explained regarding this law:
“Fear alone does not justify a homicide, nor may a homicide be justified because of threats or insults by the decedent, nor may a defendant kill and be justified when acting simply on subjective honest belief. Rather, a homicide is justifiable when a reasonable person would have used deadly force. A homicide is also justifiable when the use of deadly force is reasonably necessary because the danger appears imminent.”  And finally, “The jury should view the circumstances from the viewpoint of the defendant.”

Moreover, if Zimmerman was not the aggressor (as defined above), he would have no duty to retreat in Oklahoma.  “A person who (was not the aggressor)/(did not provoke another with intent to cause an altercation)/(did not voluntarily enter into mutual combat) has no duty to retreat, but may stand firm and use the right of self-defense.”  (OUJI-CR-8-52)

When this case finally goes to trial in Florida, it will be difficult for observers to follow the evidence in the media because the smallest details in evidence can be significant, and the contexts of those details matter a lot.  It requires considerable time and patience to present all that is necessary for a full understanding of those details and those contexts, and headline news does not have that patience nor give that time. This is one of the reasons trial judges warn juries not to read or listen to news reports of the case they are hearing.