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Sep 13, 12:36 PM EDT

Confession is focus of NYC missing boy hearing


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NEW YORK (AP) -- Pedro Hernandez hadn't attracted much attention from police before detectives came to his suburban New Jersey door on a tip one morning in May 2012. Seven hours later, the investigators' video cameras started rolling as he admitted killing a 6-year-old boy whose 1979 disappearance helped ignite a nationwide missing-children's movement.

The circumstances surrounding that confession are set to be scrutinized at a hearing, starting Monday, to determine whether Hernandez' statements are fair game for trial. The answer rests on whether he was properly advised of his rights to stay silent and consult an attorney, and whether he was mentally capable of waiving them. Hernandez' lawyer has said his client is mentally ill and has an IQ at the border of intellectual disability.

The hearing will likely mark the first time the confession will be played publicly, and it will put complicated questions under the microscope of a notorious and haunting case.

"Does he understand the consequences of his actions? That is a huge part of what we're talking about," said Denis Keyes, a College of Charleston special education professor who studies mental competency of suspects; he isn't involved in the Hernandez case. If Hernandez behaves and thinks more like a child than an adult, Keyes said, "then he will never fully understand the importance that goes with the Miranda warnings."

Hernandez, 53, worked at a Manhattan corner store nearby when Etan Patz disappeared while walking to his school bus stop on May 25, 1979. The boy has never been found, despite a search that stretched across oceans and decades. Etan was one of the first missing children to appear on a milk carton, and the anniversary of his disappearance became National Missing Children's Day.

More than three decades after Etan disappeared, police got a lead that brought them to Hernandez in 2012.

After agreeing to go to a police station near his home in Maple Shade, New Jersey, he was questioned for about seven hours before detectives advised him of his so-called Miranda rights, the warning often heard in crime dramas. They then recorded him saying he lured Etan into the store with a promise of a soda, suffocated him in the basement, put the body in a bag, stuffed the bag inside a box and left it on the street, authorities have said.

Hernandez has pleaded not guilty. His lawyer, Harvey Fishbein, has said the confession was false. But the upcoming hearing is solely to determine whether the confession can be used in court, not whether the statement itself is true.

A judge will examine the timing of the Miranda warning, an often-disputed legal issue that turns partly on whether a suspect felt free to leave during any questioning before the warning. But the judge also will be asked to decide whether Hernandez made an "intelligent and voluntary waiver of his rights, and what role his psychological status and very low IQ play," Fishbein said.

The Manhattan district attorney's office has said the confession was legally obtained.

"At the point at which the defendant's liberty would be questioned, he was issued his Miranda warnings and continued to give statements," Assistant District Attorney Joan Illuzzi-Orbon said in court papers.

The confession is a key piece of evidence against Hernandez. Authorities have not pointed to any physical or scientific evidence against him, and his defense has said there is none. Authorities have noted that Hernandez also allegedly told a 1980s prayer group he'd killed a child in New York.

Hernandez' defense has said his IQ is about 70; a score of "about 70 or below" is considered to equate to intellectual disability, according to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders.

Hernandez has a two-decade-long history of psychological problems, including hallucinations, and he's been on anti-psychotic medication for several years, Fishbein has said in court papers. Since his arrest, Hernandez has been diagnosed with schizotypal personality disorder; common characteristics include social isolation, unusual speech and "odd beliefs and behaviors," according to the National Library of Medicine.

There's no hard-and-fast rule saying that a certain IQ level or mental illness necessarily makes a person unable to comprehend the Miranda warning, said Greg DeClue, a Sarasota, Florida-based forensic psychologist who specializes in issues surrounding interrogations and disputed confessions.

"It can be hard to reconstruct" what a suspect understood, he said.

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