Hernandez v. McIntosh

Background

A New York State Supreme Court jury found Pedro Hernandez guilty in 2017 of kidnapping and murdering six-year-old Etan Patz, who disappeared in 1979. Hernandez was serving a sentence of 25 years to life. The opinion states that the conviction rested primarily on multiple confessions. It also states that Hernandez had a history of mental illness and a low intelligence quotient.

Hernandez filed a federal petition under 28 U.S.C. § 2254, which allows a person in state custody to challenge a state conviction in federal court. He argued that the state courts improperly upheld his confessions; failed to apply the Supreme Court’s rule in Missouri v. Seibert concerning unwarned and later warned interrogations; restricted evidence about possible third-party culpability and statements by unavailable witnesses; and rejected his claim that improper contacts involving jurors required a hearing.

The court had referred the petition to Magistrate Judge Robert W. Lehrburger. After briefing and oral argument, Judge Lehrburger recommended denying the petition. Hernandez filed objections, and Judge McMahon reviewed the challenged portions of the recommendation anew while reviewing the unchallenged portions for clear error.

Rulings on the objections

Confessions and custody. Hernandez argued that the state court unreasonably found that he was not in custody when he initially confessed. Judge McMahon held that the magistrate judge correctly applied the demanding federal habeas standards, including the presumption that state-court factual findings are correct unless rebutted by clear and convincing evidence. She also rejected Hernandez’s argument that the magistrate judge had failed to consider the totality of the circumstances.

Judge McMahon did not need to decide the respondent’s objection concerning whether Hernandez’s Seibert claim had been procedurally defaulted because she agreed with the conclusion that Hernandez was not in custody during the initial confession. She nevertheless stated that the objection would fail and agreed that Hernandez had not shown that the pre-warning and post-warning confessions were one continuous, uninterrupted chain of events. The opinion says the Appellate Division found the later questioning by an assistant district attorney to be sufficiently separated from the earlier questioning, and that finding received federal deference.

The court also overruled Hernandez’s objection concerning the alleged effect of the earlier interrogation on his ability to waive his rights. Hernandez raised that specific argument for the first time during oral argument before the magistrate judge, rather than in his earlier written submissions, so the magistrate judge had no obligation to address it.

Evidentiary rulings. The court found no clear error in the magistrate judge’s rejection of Hernandez’s challenges to the exclusion of third-party culpability evidence concerning Othniel Miller and to hearsay evidence from unavailable witnesses. Judge McMahon held that New York’s general balancing approach for third-party culpability evidence was consistent with Holmes v. South Carolina because it did not make admissibility depend on the strength of the prosecution’s case. The court also rejected Hernandez’s argument that the state court improperly applied the rule from Chambers v. Mississippi concerning trustworthy and critical hearsay evidence.

Alleged juror contamination. The court held that the state court was not required to hold a hearing merely because Hernandez alleged improper contact involving jurors. The alleged contact involved informing jurors that people who had served on the jury in Hernandez’s first trial were present in the gallery. Judge McMahon distinguished Supreme Court cases involving contacts about matters pending before the jury, such as attempted bribery or statements that the defendant was guilty. She concluded that the information here did not concern the evidence or merits of the case, and that the jurors already knew there had been an earlier trial and had been instructed not to consider it.

The court also agreed that Hernandez’s claim was based on speculation and hearsay. The opinion notes that he offered no juror affidavits and that none of the jurors interviewed by an investigator said they learned about the earlier jurors from a court officer. Because the record did not show that the allegedly prejudicial contact occurred, the court held that no hearing was required.

Jury note and later confessions

During deliberations, the jury asked whether it had to disregard later confessions if it found that Hernandez’s initial confession, made before the required warnings, was involuntary. The trial judge answered only, “No.” Judge McMahon agreed with Judge Lehrburger that this answer was technically correct but inadequate. The jury was entitled to decide whether later confessions were voluntary and whether they were sufficiently separated from the earlier confession. The one-word answer did not explain those issues or tell the jury that it could disregard later confessions if it found them involuntary.

Judge McMahon held that the inadequate answer violated due process because the confessions were central to the prosecution’s case and the jury had specifically requested an explanation. She rejected the respondent’s arguments that Seibert applied only to pretrial suppression decisions, that the answer complied with state law, and that the original jury instructions were sufficient.

The court nevertheless held that the error was harmless under the standards governing federal review of state convictions. The Appellate Division had found that the later confession to the assistant district attorney was sufficiently separated from the initial confession because eleven hours passed, including time when Hernandez ate and slept. Judge McMahon concluded that she could not say every fair-minded judge would find the error prejudicial. The court therefore agreed with the magistrate judge that Hernandez had not met the required standard for overturning the conviction.

Disposition

Judge McMahon denied Hernandez’s objections and the respondent’s objections following a new review, adopted Judge Lehrburger’s report and recommendations as the decision of the court, denied the petition, and dismissed it. The court authorized a certificate of appealability only on the issue of the inadequate response to the jury’s question about the later confessions and declined to issue one on the other grounds.