Conviction Reversed in Etan Patz Case & Texas Redistricting

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0:42This is Matt Rogers from Las Culture East. That's with Matt Rogers and Bowen Yang. This is Bowen Yang from Las Culture East. That's with Matt Rogers and Bowen Yang. You know when people try a new food and suddenly it's like, okay, hold on, I got a new favorite food. That's the reaction a lot of people are having when they first try Kewpie mayo. Yeah, it's the one with the red cap and the little baby on the bottle. You've probably seen it at the grocery store. And this mayo is different. Most mayonnaise uses whole eggs. Kewpie only uses egg yolks, which gives it this rich umami flavor. It's smoother, deeper, almost buttery.

1:13Once people try it, they start putting it on everything. Egg sandwiches, fries, burgers. Chefs use it. Restaurants use it. People who really care about flavor use it. Put it on just about anything. Then you'll understand. QB, the original Japanese mayonnaise. If you like YouTube, you'll love YouTube Premium. Hi, I'm Sean Evans from Hot Ones, and I want to tell you about YouTube Premium. It has offline downloads, so you can watch without Wi-Fi. Background play, so you can lock your phone, and it still plays, baby. Oh, and it is completely ad-free. Yes, I said it, ad-free. Try YouTube Premium for two months free at youtube.com slash premium.

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1:59This is Bloomberg Law with June Grosso from Bloomberg Radio. The smiling face of the six-year-old boy who disappeared on his way to school stared back from countless milk cartons in the 1980s. The disappearance of Eton Pates in New York City in 1979 was one of the nation's most notorious missing child cases. There was a decades-long, haunting search for answers to his disappearance that put a national focus on missing children, made anxious parents more protective of their children, and changed the way law enforcement handled missing children cases. And then, more than 30 years after his disappearance, police arrested Pedro Hernandez, who worked at a convenience store in Etan's neighborhood.

2:49Hernandez confessed, and after one jury deadlocked, a second jury convicted Hernandez of murder and kidnapping. I needed to know what happened to my son, and this great prosecution team finally proved it. And now, 46 years after Etan Pates' disappearance, a New York federal appeals court has resurrected the case. The Second Circuit has reversed Hernandez's conviction and ordered that he be given a new trial or released, saying the trial judge gave clearly wrong instructions to the jury. The Manhattan District Attorney, Alvin Bragg, will make the decision about whether to retry Hernandez or let him go free.

3:34My guest is Paul Callen, a former New York City prosecutor and criminal defense attorney. He's now of counsel at Edelman in Edelman. Paul, Etan Pates' disappearance has had reverberations in so many areas. The Etan Pates case has influenced child rearing in America for almost a quarter of a century. Mothers don't let their kids go to school if they're in the first grade unless they're accompanied. Helicopter parenting, I think, came along in a large degree because of the fear that something like what happened to Etan Pates would happen to a child So it's had a big influence, this case, on child rearing in the United States He was one of the first missing children to be on milk cartons Yes, he was And I think a whole generation of kids probably grew up seeing him on the side of milk carts as they sat having their Cheerios in the morning, wondering where Eton Pates was and would he ever be found.

4:35So the whole country was mesmerized by this case. And I think it's kind of shocking that it got reversed when they finally say they got the guy who did it. And so it's a fascinating case and an interesting case. So his body was never found. As I understand it, there's no physical evidence that links Hernandez to the crime. Was it all based on a confession? Yes, there was no physical evidence whatsoever. And there literally were thousands of detective hours and FBI hours devoted to searching for his body. They even had cadaver sniffing dogs that went into basements in the area where he disappeared.

5:12But they were never able to come up with a piece of physical evidence. This is a case based entirely on a confession. And the appeals court reversal is all about the confession. So tell us about that. Yes. And remember, this is the second trial that he was convicted at. At the first trial, the jury also in that case had a problem with the confession. And there was a single holdout, and it resulted in a hung jury. And then the Manhattan DA decided to retry the case. And so Now we're in the second trial. And during that second trial, the jury's having major problems with the confession. And this is the reason they're having a big problem with the confession.

5:53When he confesses, Pedro Hernandez confesses, he's in New Jersey. He's in Camden, New Jersey. And New York detectives go to New Jersey and they put him in an eight by 10 foot room with no windows in it. And they begin to ask him questions about the disappearance of Yatan Pates. They did this because they got a tip from one of his family members that maybe he was involved in the disappearance of Pates in 1979. And he's questioned intensively by New York City detectives without Miranda warnings for a period of approximately six hours. And during that time period, they even bring him drugs because he said he had left his medications at home.

6:35And they send the detective to his house to pick up a bottle of pills along with fentanyl patches, and a fentanyl patch is put on him as well as he's allowed to take the pills. And the confession continues. There's a camera mounted in the ceiling of the eight by 10 foot windowless room. And there's apparently a Manhattan assistant district attorney watching the questioning from a remote location. And at the very end of that time period, he confesses to having killed Etan Pates, putting his body in a garbage bag, and then throwing it in the trash. And he says that he encountered Pates outside of a bodega that he, Hernandez, worked at, offered him a soda, and brought him inside and murdered him.

7:19The confession then is repeated later on when he's brought back to Manhattan to the assistant district attorney that, in fact, was watching remotely when the first confession was given. And this time he's given his Miranda warnings. At the time of the initial confession, he's never given Miranda warnings by the police. They say he was not in custody, despite the fact that he's in an eight by 10 windowless room for six hours being questioned by a team of detectives. So problems with those confessions are the central reason that the United States Federal Court has reversed the conviction. During deliberations, the jurors sent out a note to the judge asking whether they should disregard the later recorded confessions if they found that his first confession off camera wasn't voluntary.

8:09And the Second Circuit said the judge gave them the wrong answer. Yes, that's exactly correct. What the note said was, if we find that the initial confession that was given in New Jersey was not voluntary, can we still consider the subsequent confessions that were made when he was brought back to New York. And essentially, the court said, yes, you can consider the subsequent confessions. So they went on then to look at the subsequent confessions, which occurred after Miranda warnings, and he incriminated himself in those confessions as well. So the conviction was based on those confessions. And why did the Second Circuit conclude that the judge's answer or decision was wrong?

8:53Well, there's a case called Missouri v. Siebert that is the central case that the court refers to. And back when the Miranda decision came down, the cops had come up with a workaround, and here's the workaround. Let's take the person into custody and get a confession out of the person and then give him Miranda warnings and ask him to just repeat what he had said in the initial confession. And this became a widespread technique that was used across the country. Eventually, the federal courts had to step in, including the Supreme Court, to say, no, this is completely improper. You can't do a confession without Miranda warnings and then subsequently give the warnings and ask the person to repeat what you just said.

9:42And that's this Missouri v. Siebert case. And the circuit court here, Second Circuit, said no. They ignored that case. They didn't rule properly on that case. There wasn't a significant, what they call, attenuation between the initial confession, which had no Miranda warnings, and the subsequent confessions when the Miranda warnings were given. The Siebert case basically says that there has to be an attenuation, a distance between the two interrogations if you're going to just administer the Miranda warnings belatedly. So that wasn't done in this case, and for that reason, the conviction was overturned.

10:21I'm just curious about in real life. So we hear the Miranda warnings in TV shows and movies over and over again. Most people can recite them. Does it really make a difference to, you know, someone in custody if they hear those Miranda warnings? To tell you the truth, June, I don't think so. And, you know, when I started out my career as an assistant district attorney in New York City, we used to ride homicide cases, meaning we would go out to the scene of the crime and administer Miranda warnings to the suspect. We had a stenographer with us and it would all be taken down. But frankly, we didn't know what went on, what really went on before we got there.

11:01Now, the police would say we administered warnings to him before the DA arrived and took the formal statement. But who knows what went on? I mean, it's only the police in the room with the suspect and the atmosphere is very different before the lawyer arrives on the scene. But my experience was that the Miranda warnings have become so pro forma, and all of the potential defendants in criminal cases know the Miranda warnings, so they're not getting any new information. And if they're intent on confessing, they confess without asking for a lawyer. You know, it's really only sort of educated professionals and mobsters who ask for lawyers, not day-to-day violent criminals.

11:40So now the Second Circuit said that either free Hernandez or put him on trial for a third time within a, quote, reasonable period. Talk about the obstacles of trying him again. Well, they're going to be up against exactly the same obstacles as the first time around, because when I looked into the record of this case, remember this appellate decision that was issued by the federal court is 51 pages in length. They recount in detail all of the strange things that happened during this interrogation. He was found by several experts to be a schizophrenic suffering from bipolar disease who was also using fentanyl and other drugs.

12:21This is all taking place when he's being interrogated, by the way, that he was suffering from these conditions and using the drugs which were supplied by the police. So in the absence of new evidence that would physically link him to the crime, I think you're very much in a situation where you'll be looking at another hung jury or maybe even an acquittal on a retrial. Now, the DA in the last case was Cyrus Vance, who decided to proceed with this case. And you have a new DA now, Alvin Bragg. And I'm not so sure that Alvin Bragg's going to want to get involved in the Etan Pates case just because of the problems with the evidence.

12:59And something else, there were at least two other suspects who were child abusers, who were thought to be in the vicinity of the crime, and who were intensively investigated. And with the exception of the confession, the case against them was as strong as the case is against Hernandez. So I'm doubting that he will get retried. But of course, there might be a public outcry. So it's always hard to decide by a DA whether to proceed or not in such a high profile case. This is such a high-profile case, and a lot of people will be dismayed if Hernandez just walks out of prison. That's something that the DA has to consider, too.

13:38Yes, I agree with you completely there. There'll be public outrage if Hernandez is allowed to walk. And, you know, frankly, when you're a DA also, you're saying, my God, will I be releasing a child molester and murderer who might, in fact, hurt other people? Maybe it's worth another try to try him again. But I think, really, they're going to be up against a very, very difficult situation if they attempt to retry this case. Paul, how unusual is it for a federal appellate court to reverse a state court proceeding? I mean, this was a petition for habeas relief. It's very, very unusual for it to happen.

14:19And the reason for that is that these cases, before they get to federal court, they've usually been looked at by at least two other appellate court levels on the state court. In New York, you'd go to the appellate division and you'd go to the court of appeals. And by the time you bring a habeas action, which is what it's called when the feds get involved in looking at a state case for constitutional violations. You've got a record that's been carefully examined by a lot of judges who have found that the trial was fair and there were no constitutional violations. And the standard for a habeas relief is very, very high.

14:58You have to show that there was absolutely no reason to support the state's determination, not to set aside the conviction. There's a very, very high standard that's placed on the defendant to prove his innocence in a federal habeas action. So it's very rare that you win this kind of relief, especially in a high-profile case. And this stunning appeals court reversal came just over a year after another high-profile case tried during Cyrus Vance's tenure was also reversed on appeal in another stunning decision, and that was the Harvey Weinstein case when an appeals court found that the trial judge there shouldn't have allowed prosecutors to call witnesses who accused Weinstein of sexual abuse in incidents that were not part of the charges.

15:51You have to say that these judges in New York have been quite brave. You have the Harvey Weinstein case, which, you know, burned up the headlines across the country when he was convicted, and they reversed his conviction. And now, of course, you have this case. Etan Pates is the poster child of a child being kidnapped and abused. And for the appellate court to have reversed both of these cases is a very brave move by those courts. And I think it's a tribute to them that they were carefully applying the law, as it is, despite the fact that they're probably going to be criticized publicly for having done so.

16:31But I think, you know, the evidence was clear in this case, and I also think in the Weinstein case, that a reversal probably was in order. Now, maybe a retrial is in order, too, if they got the right person. But it was a brave move by these judges to reverse. And the DA did retry Harvey Weinstein, which resulted in a mixed verdict. So we'll see if he decides to retry Hernandez. Thanks so much for joining me, Paul. That's former New York prosecutor Paul Callen. Some people treat ChatGPT like some kind of smart search engine, and some use it to get work done. ChatGPT Work is a new way of working in ChatGPT that can take action across your apps and files, stay with a project for hours if needed, and turn a goal into finished work.

17:19It's designed to help you move from a chaotic starting point to a reviewable first version. So all the source materials, briefs, and scattered information that you have to grind through to turn into something useful can just become something useful. Put ChatGPT to work on your most ambitious ideas and projects. Get started at chatgpt.com by selecting Work Mode, available on Plus and Pro plans. This is Matt Rogers from Las Culture East. That's with Matt Rogers and Bowen Yang. This is Bowen Yang from Las Culture East. That's with Matt Rogers and Bowen Yang. You know when people try on new food and suddenly it's like, wait.

17:55That's the reaction a lot of people are having when they first try Kewpie mayo. It's the one with the red cap and the little baby on the bottle. You've probably seen it in the grocery store before. And if you've ever just walked past it, some people would say that's a huge mistake. Because this mayo is different. Most mayonnaise uses whole eggs. Kewpie only uses egg yolks, which gives it this rich umami flavor. It's smoother, deeper, and almost buttery. Once people try it, they start putting it on everything. Egg sandwiches, fries, burgers. Some fans even swear by dipping pizza crust in it. And once you notice it, you start seeing it everywhere.

18:30Chefs use it. Restaurants use it. People who really care about flavor use it. Never tried it? Grab the bottle with the red cap next time you're at the store. Put it on just about anything. Then you'll understand. QP, the original Japanese mayonnaise. Early morning on a Manhattan sidewalk, a shooting caught on surveillance video. It was an assassination-style killing, and everybody saw it. Now, as Luigi Mangione prepares to stand trial for the murder of UnitedHealthcare CEO Brian Thompson, which he denies, a new podcast series from ABC Audio and 2020 goes inside this captivating case. I'm ABC News legal analyst Brian Buckmeyer.

19:10Listen to Burden of Proof, Luigi Mangione, wherever you get your podcasts. President Donald Trump has been very open about his plans to use redistricting to help Republicans retain control of the House in the 2026 midterm elections. Trump said last week that he'd spoken with Republican lawmakers in Texas and that redrawing the state's congressional map in favor of the GOP would add as many as five seats for the party. It's a very simple redrawing. We pick up five seats. But we have a couple of other states where we'll pick up seats also. Days later, when Governor Greg Abbott announced his agenda for the legislature's special session that started on Monday, redistricting was on the list.

19:58In the hopes of countering Trump's strategy in Texas, House Minority Leader Hakeem Jeffries is reportedly exploring the possibility of redrawing House maps in the Democratic-controlled states of California, New York, New Jersey, Minnesota, and Washington. Donald Trump, House Republicans here in Washington, and Governor Abbott are conspiring to rig the Texas congressional map as part of an effort to disenfranchise millions of people in Texas. Join me as elections law expert Richard Brafald, a professor at Columbia Law School. Rich, start by explaining the difference between redistricting and gerrymandering.

20:43Sure. So redistricting and gerrymandering refer to the same thing, but gerrymandering is a kind of negative way or a critical way of describing it when it's being driven by partisan purposes. So most of congressional delegations and state legislatures are divided up into districts, and every 10 years they have to be redistricted based on population. As population moves around, as some areas gain and some areas lose, the Constitution requires, as interpreted by the Supreme Court, requires that districts be a relatively equal population. So usually every 10 years, usually around the year ending in one or year ending in two, following the census, states redistrict.

21:25That's redistricting. Gerrymandering is a negative term we use when we say that the districting plan was driven by partisan political purposes. There are many different ways of creating a state, a bunch of equal-sized districts, but some of them can be done in a way that favors one party over the other. The party in charge can do it in a way that breaks up areas that the other party has and splits them up into multiple districts so they can never control anything. or that's called cracking. They could also do the opposite called packing and put every member of the minority party in one district so that they overwhelmingly dominate one district and have no voice anywhere else.

22:06And so gerrymandering is a phenomenon of drawing district lines in a way that produces districts of equal population, but unduly favors one party over the other. Thus, a majority party gets not just a majority of the states, but a much bigger majority than And their share of the vote would require in fairness. So that's the difference. Donald Trump has called for Republicans in several states to redraw their congressional maps to help give Republicans an even bigger advantage in the midterms. As you mentioned, you know, they usually do it every 10 years. How unusual is it to be doing it at this time?

22:43This kind of what might be called mid-cycle resisting is very unusual. It's not that it's never happened before. It has sometimes happened. Although it's unusual it happens. And sometimes it happens when a new party takes over a state legislature that they hadn't had at the beginning of the decade. Here is actually talking to states where the Republicans were already in charge of doing the districting in 2021 and saying, well, I want you to do it even more so now. And it's very rare that it's being done for so kind of blatantly, nakedly partisan purposes. there usually is some justification for it.

23:18But this time, I mean, it's being announced as purely partisan, purely gerrymandering, rather than any claim that there was a kind of a problem of representation with the older districts. And the Supreme Court has said partisan gerrymandering is OK. Racial gerrymandering is not. That's correct. I mean, I guess technically what they have said is that partisan gerrymandering is not unconstitutional. They don't endorse it, but they have said that there's nothing the federal courts can do about it. Racial gerrymandering, districting designed to help one race over another, that does raise a constitutional concern.

23:55But race and party are often very closely intertwined. And in their most recent cases, the court has basically said, if the state says it's partisan, because partisan is constitutional, we're going to defer them. We're going to put a very heavy burden of proof on the other side, challenging it to show that it's not partisan, it's racial. And here, at least what's going on in Texas, the announcement is so clearly that it's partisan. And it seems to be that. But I think it would be very hard to show that even if there's a racial component to it, it would be very hard to show that it wasn't primarily partisan.

24:27Republican Texas Governor Greg Abbott put redistricting on the list for this special session that started on Monday. He said his decision was because of a letter he received from the Department of Justice earlier this month that alleges that four of the current districts were racial gerrymanders that violate the 14th Amendment. I mean, was that letter pretextual? Does it make any sense? It sure seems that way. I mean, these districts were adopted two years ago and they were designed to provide representation for minority groups, I think, for African-Americans and Latinos. I think they were primarily Latino district.

25:06The Constitution does not forbid that, and the Voting Rights Act actually, if it doesn't require that, at least it promotes that idea of fair representation for minorities. So no one has ever challenged those districts. And basically, the current view in current administration seems to view that anything that even thinks about race is unconstitutional. That's not been the standard until now. The Supreme Court standard is that race can be taken into account in districting. It just can't be the overwhelming factor, the predominant factor. And I think you would have to show that these districts, of course, did help create minority representation, but that you would have to show that that was the overwhelming factor as opposed to other factors, including respect for political subdivision lines following the course of preexisting districts.

25:51It does seem as though this was designed purely to give a justification for a re-redistricting. But the state is— anyone going to court and suing. No one has gone to court to sue to challenge those districts. If anything, there was another lawsuit that was brought from the other perspective saying that some other districts in Texas violated the Voting Rights Act in terms of limiting minority representation. And the state had been defending them and saying that the state's districting plan was entirely constitutional. So the state has now kind of flipped its position and sort of, you know, moving away from its position that everything is fine and is now considering redoing the district.

26:27Coming up next, can Democrats really retaliate? This is Bloomberg. Some people treat ChatGPT like some kind of smart search engine, and some use it to get work done. ChatGPT Work is a new way of working in ChatGPT that can take action across your apps and files, stay with a project for hours if needed, and turn a goal into finished work. It's designed to help you move from a chaotic starting point to a reviewable first version. So all the source materials, briefs, and scattered information that you have to grind through to turn into something useful can just become something useful. Put ChatGPT to work on your most ambitious ideas and projects.