NYC’s Etan Patz Case Renews Issue of Jail Calls as Evidence

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ProPublica explores the practice of using information from recorded jail calls against criminal defendants. Last April, the New York Court of Appeals upheld the use of incriminating Rikers Island jail phone conversations in the case of a New York City man convicted of robbery, although the justices clearly were troubled by the practice. “The current arrangement between the Department of Corrections and the district attorney’s office creates a serious potential for abuse,” wrote Justice Eugene F. Pigott, adding, “Something needs to change.”

An effort to compel that change has now arisen in another New York case: the murder trial of Pedro Hernandez for the killing of Etan Patz, the 6-year-old boy who famously went missing in 1979, never to be found. In Hernandez’s first trial — a single holdout juror prevented a conviction last year — prosecutors used a handful of recorded jail conversations as part of their case. Now, given the Court of Appeals decision, Hernandez’s lawyers are moving to bar prosecutors from using the conversations in his re-trial, set to begin in Supreme Court in Manhattan next month. The phone calls at issue were between Hernandez and his wife, made over the course of the four years Hernandez has been held at Rikers Island since his 2012 arrest. Prosecutors used them in an effort to undercut one of the central claims of Hernandez’s defense: that he is mentally ill and susceptible to being manipulated. Prosecutors argued the phone conversations revealed Hernandez to be coherent, even calculating, and thus likely faking his mental illness.

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