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.

Crime declined last year to the lowest rate in 40 years.  The findings reported by the F.B.I. has baffled experts for a number of reasons.  This drop in crime continues declines in previous years, and that continuation of decline also baffles the experts.

The statistics, reported to the F.B.I. from 13,000 local law-enforcement agencies, show that in small towns with populations under 10,000. the number of murders declined more than 25 percent from the year before.  Nationally, violent crimes declined by 5.5 percent from the previous year, and that previous year (2010) had also witnessed about a 5.5 percent decline from the year 2009.  Nationally, murder declined while property crimes, including larceny, burglary, car theft, and arson, dropped only 2.4 percent last year, following a drop of 4.6 percent drop the year before.  Last year in all regions of the country, the odds of being murdered or robbed were not even half what they had been at the statistical apex of reported violent crimes in the 1990s.

New York and San Antonio were the only cities of over a million to witness an increase in violent crimes.  These increased in New York 4.6 percent last year to the total number of violent crimes reported of 48,489.  In New York last year, rapes reported increased 24.5 per cent, murders 8.24 percent with an increase of 65 murders over 2009, which had been the lowest number since the 1960s.  The further historical backdrop for this that 2,245 murders were recorded in New York in 1990, but less than 900 for the last 9 years.

Some of the standard explanations are that, when crime statistics go up, they are explained as the result of better reporting due to more effective police “encouraging victims to come forward, “ and when crime shows a decrease, it’s a result of good police work.   Criminal defense attorneys hear that all the time.

Crime is supposed to increase in times of economic distress and recession, such as we are, in periods of higher unemployment.  The experts are therefore puzzled.  Neither can they explain how crime has dropped another year after the previous declines.

Another popular theory, certainly among the public, is that higher incarceration rates are supposed to lower crime, yet these drops are taking place as the country has been lowering incarceration rates.

State by state, fewer juveniles are being tried as adults.   In Roper v. Simmons, the U.S. Supreme Court decided that the death penalty could not applied to juveniles who younger than 18 at the time of the offense.  The Court based this decision on the “general differences” which distinguish them from adults, namely a lack of maturity and greater susceptibility to peer pressure and underdeveloped character.  That was in 2005.

Since then, studies have concluded that older adolescents differed significantly from adults in their capacity to make sound decisions and benefitted more from systems that focus on treatment rather than on incarceration.   And since those studies, state after state has legislated changes in how juveniles are treated in the legal process in the belief that for youthful offenders, the juvenile justice system is better able to redirect their behavior in part because of the availability of social services.

In January, the Massachusetts legislature introduced a bill to raise the age level of adulthood for purposes of criminal prosecution.  North Carolina and Wisconsin are considering the same action.  Since last year, Connecticut no longer processes all 16-year-olds as adults.  It will do the same for 17-year-olds next year.  Illinois has recently transferred some of its low-level offenders younger than 18 into the juvenile system.

Thirty-seven states have set the age of adulthood at 18.  The federal government, including the District of Columbia, have the same age.  Eleven states use the age of 17 as the age of adult responsibility.   That age is 16 for New York and North Carolina.

North Carolina has defeated these changes for two years, mainly because of the cost.  The North Carolina Sheriff’s Association has said it makes no sense to take a system that is already lacking in the necessary funding and add two more categories of age groups.  The Association has opposed legislation to transfer 16-year-olds and 17-year-olds to the juvenile justice system.
With all the tight budgets around the country, increasing costs for any reason is a hard sell.

One study by the Vera Institute projected the cost of transferring 31,000 16- and 17-year-olds to the juvenile system at $71 million a year.  However, the study also projected $123 million a year savings to society if there were fewer arrests and fewer inmates in jail and prison as a result of lower recidivism.

The juvenile justice system requires greater funding because it costs more to prosecute a defendant in the juvenile system.  The New Hampshire House of Representatives voted overwhelmingly in 2008 to raise the age defining a juvenile from 17 to 18, but the measure died in the finance committee because of the projected cost.  A typical juvenile system has a higher staff-to-offender ratio and programs dedicated to treatment and rehabilitation.

There has been a separate system for juveniles for many years, but, in1978, a move began to hold younger teenagers responsible in adult courts.  It began in New York after Willie Bosket killed two people in a subway and received only a 5-year sentence, the maximum for a juvenile offender.  There was public outrage. The legislature promptly enacted the Juvenile Offender Act, which lowered the age for adult offenders to 13 for murder charges and 14 for other major felonies.  It remained at 16 for other crimes.  Thereafter over the next two decades, mostly in the 1990s, nearly every state followed suit.   The age of adulthood was lowered and the crimes for which juveniles could be prosecuted was increased.

All states retain the option of prosecuting youth for the most violent crimes, regardless of the recent trend.  Such cases are a small minority, however.  Out of a million juvenile prosecutions nationwide in 2007, only 9,000 cases were sent to adult court.

So many federal agents were moved to counter-terrorism investigations after the 9/11 attacks that the prosecution of more traditional crimes could not be given much attention.  Carter Stewart, newly-appointed United States Attorney for the Southern District of Ohio is going to change that.

Stewart’s district includes Cincinnati, Columbus, Dayton and all of southern Ohio.  “I would like to have more resources go back to our bread-and-butter cases,” Stewart said.  By “bread-and-butter,” Stewart referred to his priorities: financial crime, mortgage fraud, public corruption, environmental crime and the exploitation of children.  Criminal defense lawyers know those are traditional areas of federal prosecution because local law enforcement usually do not have the expertise or resources to pursue crimes in those areas.

Financial crimes and mortgage frauds obviously require experts in tracking down long, often sophisticated paper trials, sometimes in dealings local law enforcement personnel have never heard of.  Public Corruption focuses on the wrong-doing of state and local politicians, so state and local prosecutors have an obvious conflict, assuming they even want to pursue the wrong-doers in any given case.  Environmental crimes require specific expertises and can cross state lines.  Exploitation of children, most commonly prostitution of children, often requires investigations across state lines as the prostitutes are moved to locations like truck stops in various cities.

In Oklahoma, federal prosecutors have continued to prosecute the crimes they traditionally pursued, in addition to national security/counter-terrorism: more commonly those in the areas of drug distribution conspiracies, violent crimes, public corruption, and white collar crimes, child computer crimes, and gun possession charges on previously-convicted felons.

The headquarters of the F.B.I. for years after 9/11 decreed that counter-terrorism shall dominate all resources.   What was surprising was how much withdrawal there was from other areas of investigation in some districts.  In those years after 9/11, Ohio had several cases of alleged terrorism since 2001, including the case involving three men from Toledo convicted last year of plotting to recruit and train terrorists.  Authorities also prosecuted three loosely-linked terrorists over four years, including Iyman Faris, also known as Mohammad Rauf and sometime F.B.I. double agent, was convicted of helping in a plot to destroy the Brooklyn Bridge at the request of Khalid Sheikh Mohammed, the alleged architect of the 9/11 attacks.

Carter Stewart is following the lead of U.S. Attorney General Eric Holder, who has instructed new U.S. Attorneys to return to basic areas of prosecution.  Stewart’s top priority is still counter-terrorism but he has not decided on this next most important emphasis. But he is taking a close look at financial crimes.  “With today’s economy and the issues that we’re facing, I think that’s a direct result from fraudulent activity,” he said.