Judge views confession tape in 1979 missing boy case

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Judge views confession tape in 1979 missing boy case
This undated photo provided by the New York County District Attorney’s Office, shows an unidentified young boy crouching in a produce box, which prosecutors showed to the jury during Perdo Hernandez’s murder trial Friday, March 6, 2015. The photo was intended to show how Etan Patz's body would have fit into such a box. Hernandez is on trial for 1979 murder of Patz. (AP Photo/New York County District Attorney’s Office, Laura Badger)
Becky Hernandez, daughter of Pedro Hernandez, center, leaves during a break in proceedings of the Etan Patz murder trial where her father is accused, alongside her mother Rosemary Hernandez, right, and attorney Harvey Fishbein, Monday, March 9, 2015, in New York. Becky Hernandez, 25, testified Monday about her strict upbringing and the effect her father's arrest had on her. (AP Photo/John Minchillo)
Rosemary Hernandez (R) is accompanied by her daughter Becky as she return to a court in New York on January 30, 2015 during a trial of her husband Pedro Hernandez who is accused of kidnapping and killing six-year-old Etan Patz in one of America's most famous missing child cases. Hernandez, 53, is accused of luring Etan Patz into the basement of the grocery store where he worked, before killing and dumping his body out with the trash on May 25, 1979. AFP PHOTO/JEWEL SAMAD (Photo credit should read JEWEL SAMAD/AFP/Getty Images)
A newspaper with a photograph of Etan Patz is part of a makeshift memorial in the SoHo neighborhood of New York, Monday, May 28, 2012. For prosecutors, the work is just beginning after the astonishing arrest last week of a man who police say confessed to strangling the 6-year-old New York City boy 33 years ago in one of the nation's most bewildering missing children's cases. Pedro Hernandez, 51, was charged with second-degree murder in the 1979 death of Etan Patz, based largely on a signed confession he gave to detectives. (AP Photo/Mark Lennihan)
Investigators have turned up three new boxes of evidence in the Etan Patz disappearance case, during a trial for the boy's murder.
This 1979 photo provided by the New York City Police Department shows a missing child poster for Etan Patz. New York City Police and the FBI began digging up a New York basement Thursday, April 19, 2012 for the remains of the 6-year-old boy whose 1979 disappearance on his way to school helped launch a missing children's movement that put kids' faces on milk cartons. (AP Photo/New York City Police Department)
A spokesman for the group NAMBLA said a photograph seized in a police raid is not that of Etan Patz, a young boy who disappeared from the streets of New York 3½ years, ago at a press conference in New York, Dec. 29, 1982. Spokesman David Thorstead, center, shows the 1968 “Boyhood Calendar” from which the photograph in question came. With him are spokesman David Ingalls, left, and the lawyer for the group, Michael J. Larey, at right. (AP Photo/G. Paul Burnett)
In this combination of two file photos, convicted child molester Jose Antonio Ramos, left, and Pedro Hernandez, right, who is accused of abducting and killing six-year-old Etan Patz in 1979 are shown. A Pennsylvania judge on Friday, Oct. 25, 2013 ordered now-jailed Ramos to appear at Pedro Hernandez’ trial in 2014, The Citizens' Voice of Wilkes-Barre, Pa., reported. Ramos was long the prime suspect in Patz’s disappearance. (AP Photo)
FILE - In this May 18, 1985 file photo, Stanly Patz, left, holds a photo of his son Etan, as he poses for a photo with his other son Ari, at their home in New York. Etan Patz vanished on May 25, 1979. One of the most extensive missing-child searches was mounted to find him but two decades later, the boy was officially declared dead. No one has ever been arrested. Now, the Manhattan district attorney's office will take a fresh look at the evidence collected against the prime suspect, a convicted child molester serving 20 years in prison in Pennsylvania. (AP Photo/Ron Frehm, File)
Julie Patz, mother of Etan Patz, who has been missing for a couple of years since disappearing in New York, speaks on NBC-TV's "Today" show in New York City on March 26, 1981. Patz said the reason so many missing children are not found is that police departments in various cities do not talk to each other in conducting searches. (AP Photo/Dave Pickoff)
Julie and Stan Patz stand on the fire escape of their loft in the Soho area of New York City, March 1980. The Patz's son Etan, set off for school from home on May 25, 1979 and has not been seen since. Although police on the case have turned up nothing, the Patzes believe Etan is alive and will one day come home. (AP Photo)
A notice to the media from Stan Patz, the father of Etan Patz who disappeared 33 years ago at age six, is posted in front of the building where the Patz family lives, in New York, May 29, 2012. Suspect Pedro Hernandez, 51, told police he strangled the boy after luring him 'with the promise of a soda' to the basement of the grocery store where he worked, close to a school bus stop where the child was last seen in 1979. AFP PHOTO/Emmanuel Dunand (Photo credit should read EMMANUEL DUNAND/AFP/GettyImages)
A street shrine to six-year-old Etan Patz, who disappeared 33 years ago, is set in front of the building where suspect Pedro Hernandez confessed to have strangled the boy in New York on May 29, 2012. Hernandez, 51, told police he strangled the boy after luring him 'with the promise of a soda' to the basement of the grocery store where he worked, close to a school bus stop where the child was last seen in 1979. AFP PHOTO/Emmanuel Dunand (Photo credit should read EMMANUEL DUNAND/AFP/GettyImages)
A street shrine to six-year-old Etan Patz, who disappeared 33 years ago, is set in front of the building where suspect Pedro Hernandez confessed to have strangled the boy in New York on May 29, 2012. Hernandez, 51, told police he strangled the boy after luring him 'with the promise of a soda' to the basement of the grocery store where he worked, close to a school bus stop where the child was last seen in 1979. AFP PHOTO/Emmanuel Dunand (Photo credit should read EMMANUEL DUNAND/AFP/GettyImages)
A street shrine to six-year-old Etan Patz, who disappeared 33 years ago, is set in front of the building where suspect Pedro Hernandez confessed to have strangled the boy in New York on May 29, 2012. Hernandez, 51, told police he strangled the boy after luring him 'with the promise of a soda' to the basement of the grocery store where he worked, close to a school bus stop where the child was last seen in 1979. AFP PHOTO/Emmanuel Dunand (Photo credit should read EMMANUEL DUNAND/AFP/GettyImages)
People walk past a street shrine to six-year-old Etan Patz, who disappeared 33 years ago, set in front of the building where suspect Pedro Hernandez confessed to have strangled the boy in New York on May 29, 2012. Hernandez, 51, told police he strangled the boy after luring him 'with the promise of a soda' to the basement of the grocery store where he worked, close to a school bus stop where the child was last seen in 1979. AFP PHOTO/Emmanuel Dunand (Photo credit should read EMMANUEL DUNAND/AFP/GettyImages)
Two women walk past a street shrine to six-year-old Etan Patz, who disappeared 33 years ago, set in front of the building where suspect Pedro Hernandez confessed to have strangled the boy in New York on May 29, 2012. Hernandez, 51, told police he strangled the boy after luring him 'with the promise of a soda' to the basement of the grocery store where he worked, close to a school bus stop where the child was last seen in 1979. AFP PHOTO/Emmanuel Dunand (Photo credit should read EMMANUEL DUNAND/AFP/GettyImages)
A man takes a photo of a street shrine to six-year-old Etan Patz, who disappeared 33 years ago, set in front of the building where suspect Pedro Hernandez confessed to have strangled the boy in New York on May 29, 2012. Hernandez, 51, told police he strangled the boy after luring him 'with the promise of a soda' to the basement of the grocery store where he worked, close to a school bus stop where the child was last seen in 1979. AFP PHOTO/Emmanuel Dunand (Photo credit should read EMMANUEL DUNAND/AFP/GettyImages)
A young girl looks at a street shrine to six-year-old Etan Patz who disappeared 33 years ago, set in front of the building where suspect Pedro Hernandez confessed to have strangled the boy in New York on May 29, 2012. Pedro Hernandez, 51, told police he strangled the boy after luring him 'with the promise of a soda' to the basement of the grocery store where he worked, close to a school bus stop where the child was last seen in 1979. AFP PHOTO/Emmanuel Dunand (Photo credit should read EMMANUEL DUNAND/AFP/GettyImages)
NEW YORK, NY - MAY 25: Daughter Becky Hernandez (2nd L) and wife Rosemary Hernandez (2nd R), of alleged Etan Patz murderer suspect Pedro Hernandez, walk away from a courthouse with a lawyer and a family friend before Pedro Hernandez's arraignment later in the day on May 25, 2012 in New York City. Patz was a 6-year-old boy when he disappeared on his way to his school bus stop in 1979. It is alleged that Pedro Hernandez used a soda to lure the boy down to a basement of a bodega, then strangled him. (Photo by Spencer Platt/Getty Images)
NEW YORK, NY - MAY 25: Daughter Becky Hernandez (2nd L) and wife Rosemary Hernandez (3rd L), of alleged Etan Patz murderer suspect Pedro Hernandez, walk away from a courthouse with a lawyer and a family friend before Pedro Hernandez's arraignment later in the day on May 25, 2012 in New York City. Patz was a 6-year-old boy when he disappeared on his way to his school bus stop in 1979. It is alleged that Pedro Hernandez used a soda to lure the boy down to a basement of a bodega, then strangled him. (Photo by Spencer Platt/Getty Images)
NEW YORK, NY - MAY 25: Wife Rosemary Hernandez (2nd L) and daughter Becky Hernandez (2nd R), of alleged Etan Patz murderer suspect Pedro Hernandez, walk away from a courthouse with a lawyer and a family friend before Pedro Hernandez's arraignment later in the day on May 25, 2012 in New York City. Patz was a 6-year-old boy when he disappeared on his way to his school bus stop in 1979. It is alleged that Pedro Hernandez used a soda to lure the boy down to a basement of a bodega, then strangled him. (Photo by Spencer Platt/Getty Images)
NEW YORK, NY - MAY 25: Daughter Becky Hernandez (2nd L) and wife Rosemary Hernandez (2nd R), of alleged Etan Patz murderer suspect Pedro Hernandez, walk away from a courthouse with a lawyer and a family friend before Pedro Hernandez's arraignment later in the day on May 25, 2012 in New York City. Patz was a 6-year-old boy when he disappeared on his way to his school bus stop in 1979. It is alleged that Pedro Hernandez used a soda to lure the boy down to a basement of a bodega, then strangled him. (Photo by Spencer Platt/Getty Images)
NEW YORK, NY - MAY 24: New York City Police Commissioner Ray Kelly talks to members of the media after a news conference at Police Headquarters May 24, 2012 in in New York City. Kelly announced the arrest of Pedro Hernandez, who police say confessed to the 1979 killing of six-year-old Etan Patz. (Photo by Allison Joyce/Getty Images)
NEW YORK, NY - MAY 24: New York City Police Commissioner Ray Kelly holds a news conference at Police Headquarters May 24, 2012 in in New York City. Kelly announced the arrest of Pedro Hernandez, who police say confessed to the 1979 killing of six-year-old Etan Patz. (Photo by Allison Joyce/Getty Images)
The search continues on a rainy Sunday at the site where New York police and FBI agents dig up a basement believed to contain clues to the unsolved disappearance 33 years ago of six-year-old Etan Patz in New York, April 21, 2012. Police shut off two blocks of Prince Street and erected a blue tarpaulin tent over the entrance to the basement where detectives hope finally to break the case of Etan Patz, who became America's most famous missing child when he vanished on his way to school in 1979. AFP PHOTO / Mehdi Taamallah (Photo credit should read MEHDI TAAMALLAH/AFP/Getty Images)
New York police and FBI agents talk at the site where they dig up a basement believed to contain clues to the unsolved disappearance 33 years ago of six-year-old Etan Patz, in New York, April 21, 2012. Police shut off two blocks of Prince Street and erected a blue tarpaulin tent over the entrance to the basement where detectives hope finally to break the case of Etan Patz, who became America's most famous missing child when he vanished on his way to school in 1979. AFP PHOTO / Emmanuel Dunand (Photo credit should read EMMANUEL DUNAND/AFP/Getty Images)
A New York policeman covered in dust, takes a break as New York police and FBI agents dig up a basement believed to contain clues to the unsolved disappearance 33 years ago of six-year-old Etan Patz, in New York, April 21, 2012. Police shut off two blocks of Prince Street and erected a blue tarpaulin tent over the entrance to the basement where detectives hope finally to break the case of Etan Patz, who became America's most famous missing child when he vanished on his way to school in 1979. AFP PHOTO / Emmanuel Dunand (Photo credit should read EMMANUEL DUNAND/AFP/Getty Images)
NEW YORK, NY - APRIL 20: New York City police and F.B.I. investigators remove debris from a crime scene in Soho where investigators searched for evidence of a six year-old boy who has been missing for 33 years on April 20, 2012 in New York City. Investigators from the NYPD and the FBI searched the basement of a building in New York's SoHo neighborhood for evidence of Etan Patz, a six year-old boy who disappeared 33 years ago on May 25, 1979. The neighborhood, once a crime ridden industrial area where bohemian artists lived, has transformed over the years into one of Manhattans most exclusive neighborhoods with luxury retail stores and expensive restaurants. (Photo by Spencer Platt/Getty Images)
NEW YORK, NY - APRIL 20: New York City police and F.B.I. investigators remove debris from a crime scene in Soho where investigators searched for evidence of a six year-old boy who has been missing for 33 years on April 20, 2012 in New York City. Investigators from the NYPD and the FBI searched the basement of a building in New York's SoHo neighborhood for evidence of Etan Patz, a six year-old boy who disappeared 33 years ago on May 25, 1979. The neighborhood, once a crime ridden industrial area where bohemian artists lived, has transformed over the years into one of Manhattans most exclusive neighborhoods with luxury retail stores and expensive restaurants. (Photo by Spencer Platt/Getty Images)
Julie Patz, mother of Etan Patz, leaves a courtroom in New York, Monday, Sept. 15, 2014. The videotaped confession of Pedro Hernandez, who admitted killing 6-year-old Etan Patz in 1979, is expected to be played in court as a Manhattan judge determines whether it is fair game for the suspect's murder trial. The hearing that begins Monday is expected to last several weeks to determine whether Pedro Hernandez's statements are admissible in the case. (AP Photo/Seth Wenig)
Stan Patz, father of Etan Patz, leaves a courtroom in New York, Monday, Sept. 15, 2014. The videotaped confession of Pedro Hernandez, who admitted killing 6-year-old Etan Patz in 1979, is expected to be played in court as a Manhattan judge determines whether it is fair game for the suspect's murder trial. The hearing that begins Monday is expected to last several weeks to determine whether Pedro Hernandez's statements are admissible in the case. (AP Photo/Seth Wenig)
Stan Patz, father of Etan Patz, center, returns to the courtroom after a break in New York, Monday, Sept. 15, 2014. The videotaped confession of Pedro Hernandez, who admitted killing 6-year-old Etan Patz in 1979, is expected to be played in court as a Manhattan judge determines whether it is fair game for the suspect's murder trial. The hearing that begins Monday is expected to last several weeks to determine whether Pedro Hernandez's statements are admissible in the case. (AP Photo/Seth Wenig)
A satellite television truck parks outside a residential storefront building at the corner of Prince Street and Broadway, after an earlier police search of the building in the ongoing Etan Patz investigation on Wednesday, Aug. 8, 2012 in the Soho section of New York. Police investigating the 1979 disappearance of the 6-year-old Patz said Pedro Hernandez of Maple Shade, N.J., told them he lured the boy into the location when it was a shop, with the promise of a soda. (AP Photo/Bebeto Matthews)
David Lutzker places a Snoopy figurine at a makeshift memorial next to a building where Etan Patz was reportedly killed 33 years ago in the SoHo neighborhood of New York, Monday, May 28, 2012. For prosecutors, the work is just beginning after the astonishing arrest last week of a man who police say confessed to strangling a 6-year-old New York City boy three decades earlier in one of the nation's most bewildering missing children's cases. Pedro Hernandez, 51, was charged with second-degree murder in the 1979 death of Etan Patz, based largely on a signed confession he gave to detectives. (AP Photo/Mark Lennihan)
In this Sunday, May 27, 2012, photo, a woman holding a toddler walks by the site of a makeshift memorial to Etan Patz, the 6 year-old New York City boy who disappeared in 1979, in New York. The mother of Etan Patz, Julie Patz, spoke Tuesday, May 29, 2012, outside her Manhattan apartment building, a week after a man confessed to killing son 33 years ago. (AP Photo/Kathy Willens)
A photograph of Etan Patz hangs on an angel figurine, which is part of a makeshift memorial in the SoHo neighborhood of New York, Monday, May 28, 2012. For prosecutors, the work is just beginning after the astonishing arrest last week of a man who police say confessed to strangling the 6-year-old New York City boy 33 years ago in one of the nation's most bewildering missing children's cases. Pedro Hernandez, 51, was charged with second-degree murder in the 1979 death of Etan Patz, based largely on a signed confession he gave to detectives. (AP Photo/Mark Lennihan)
Chuck Diehm talks about his neighbor, Pedro Hernandez, Friday, May 25, 2012, in Maple Shade, N.J. Hernandez, who lives next door, upstairs with his wife and teenage daughter, was picked up late Wednesday in Camden, N.J., in connection with the disappearance of 6-year-old Etan Patz in 1979. Police said Thursday that Hernandez has implicated himself in the boy's death. (AP Photo/Alex Brandon)
Stan Patz, father of missing child Etan Patz, arrives at his home in SoHo, Friday, May 25, 2012, in New York. New life has been breathed into the case after Pedro Hernandez implicated himself in the death of 6-year-old Etan Patz, whose disappearance 33 years ago on his way to school helped launch a missing children's movement that put kids' faces on milk cartons. (AP Photo/John Minchillo)
Supporters of the Patz family leave flowers on their doorstep in SoHo, Friday, May 25, 2012, in New York. New life has been breathed into the missing child case of Etan Patz after Pedro Hernandez implicated himself in the 6-year-old's death, whose disappearance 33 years ago on his way to school helped launch a missing children's movement that put kids' faces on milk cartons. (AP Photo/John Minchillo)
CORRECTS LOCATION-Dan Wollick looks at a newspaper in front of his house with a cover story about his upstairs neighbor, Pedro Hernandez, Friday, May 25, 2012, in Maple Shade, N.J. Hernandez, who Wollick says lives upstairs with his wife and teenage daughter, was picked up late Wednesday in Camden, N.J., in connection with the disappearance of 6-year-old Etan Patz in 1979. Police said Thursday that Hernandez has implicated himself in the boy's death. (AP Photo/Alex Brandon)
Supporters of the Patz family leave flowers on their doorstep in SoHo, Saturday, May 26, 2012, in New York. New life has been breathed into the case after Pedro Hernandez implicated himself in the death of 6-year-old Etan Patz, whose disappearance 33 years ago on his way to school helped launch a missing children's movement that put kids' faces on milk cartons. (AP Photo/John Minchillo)
Investigators leave a residence in Maple Shade, N.J., Thursday, May 24, 2012. A woman who answered the door said that it is the home of Pedro Hernandez, who is in custody in the disappearance of Etan Patz in 1979. Hernandez has implicated himself in the death of Patz, police said Thursday. (AP Photo/Mel Evans)
Tourists take photos of the scene near a building on the corner of Wooster Street and Prince Street in New York on Saturday, April 21, 2012 during a renewed investigation into the 1979 disappearance of 6-year-old Etan Patz. Patz vanished after leaving his family’s home for a short walk to his school bus stop. NYPD spokesperson Paul Browne says the building being searched for his remains is about a block from where the family lived. (AP Photo/Mary Altaffer)
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By COLLEEN LONG

NEW YORK (AP) -- A man charged with killing a boy who disappeared in 1979 calmly told investigators that he strangled the child, according to a confession video played in court Monday for a judge who will decide whether the recording can be used as trial evidence.

Pedro Hernandez has pleaded not guilty to murder in the death of Etan Patz, who vanished on his way to school.

In the video, Hernandez is sitting in a plain room with lots of chairs as a detective asks him about the child.

"I was nervous; my legs were jumping," Hernandez replies. "I wanted to let go but I just couldn't let go."

"I felt like something just took over me. I don't know what to say; something just took over me and I was just choking him."

He demonstrated with his hands around his own neck. He said the boy was still alive when he put him in a bag.

Hernandez said he dumped the body and returned the next day, but it was gone.

Etan became one of the first missing children to be pictured on a milk carton, and the day he disappeared, May 25, became National Missing Children's Day.

His father watched stoically as the video was played, while the boy's mother left the Manhattan courtroom before the video began.

Hernandez's lawyer, Harvey Fishbein, says his client falsely confessed and lacks the mental ability to understand his rights.

Hernandez had been in custody nearly eight hours when the videotape was made, Fishbein said.

"We don't have a record of what happened in that 7 1/2 hours," he said. Hernandez asked to go home a number of times, Fishbein said.

Fishbein also said Hernandez got details incorrect that the killer should know, like where the body was dumped. "We will show he's wrong all the time," the defense lawyer said. "He's unreliable. He's a terrible historian; he's inconsistent."

In 2012, police got a lead that brought them to Hernandez, who had worked at a Manhattan corner store near where Etan disappeared.

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 rights. 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.

The hearing, which is expected to last several weeks, will determine whether the confession can be used in court, not whether the statement itself is true.

The 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 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 has said.

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