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Etan Patz Case: Why the DA Prosecuted Pedro Hernandez

EMMANUEL DUNAND/AFP/GettyImages(NEW YORK) -- Towards the end of Pedro Hernandez' taped confession to kidnapping and killing six-year-old Etan Patz he can be seen kneeling and praying with the detectives who questioned him, ABC News has learned. At that moment, according to sources who have seen the video, there is the sense that everyone in the room has tears in their eyes. Certainly Hernandez appears to.

Is it textbook police work? Maybe not. Nor are the hugs exchanged by suspect and investigators. But is it a powerful, moving and, most importantly, convincing confession?

The office of Manhattan District Attorney Cy Vance clearly thinks so.

So do multiple persons familiar with the case interviewed by ABC News.

Following a grand jury indictment of Hernandez on kidnapping and second degree murder charges, the Manhattan D.A. will now go forward with a prosecution that will by all accounts be a difficult one. No physical evidence found to date links the suspect to the crime, a number of sources say, there are no witnesses, and the crime -- committed in 1979 -- has long been blamed on another man, although that man was never indicted.

Still, in a system of justice that has winners and losers, in a town like New York where sometimes it seems that all that matters is the zero sum game, the decision of prosecutors to go forward speaks to the law as they understand it, sources explain. The prosecutors have seen the psychiatric reports on the suspect, they have viewed and reviewed the confession, they are certain Hernandez is not crazy.

And if he is not crazy and he has confessed to police -- and he has in the past to family members and others -- that he killed Patz, the default position is not that his is a false confession, according to sources familiar with the case, but that it's true. In other words, it's the statement of a guilty man who, at age 51, wants to get a long-ago crime off his chest.

However formidable the burden of proof may be, then, this is a case that appears to be moving forward.

In that sense, the Hernandez case is the polar opposite of another legal firestorm that fell to Manhattan D.A. Vance -- the arrest of the prominent French politician and IMF director Dominique Strauss-Kahn on charges of sexually assaulting a hotel maid. Depending on jury composition, the presentation of circumstantial evidence, and the skill of the prosecutors, it is conceivable that the case could have been made to a jury beyond a reasonable doubt that "DSK" committed the crime.

But in the end, when they examined all the factors they had before them, the prosecutors felt that despite what appeared to be a large body of evidence, they themselves were not convinced beyond a reasonable doubt that DSK was guilty. So in an atmosphere charged with issues of class and race and the suggestion of preferential treatment for a member of the global elite, Vance and his prosecutors dropped the case.

In the current case, which no one pretends will be anything but an uphill battle, they will move forward.

Their courtroom strategy will be to draw the jury back time and again to Hernandez' own words.

But Harvey Fishbein, the attorney for Hernandez, will have a large arsenal of weapons with which to fight back.

"This case will take time and it will take money," Fishbein said after his client's 90-second court appearance Thursday. And, he added, "This case will not tell the world what happened to Etan Patz."

Fishbein, sources say, is virtually certain to try to cast reasonable doubt on Hernandez's guilt by calling as a witness the former federal prosecutor who identified Jose Ramos, a convicted sex offender, as Patz's likely killer. In effect he will put the ex-prosecutor, Stuart GraBois, and his prime suspect on trial.

Ramos was released from a Pennsylvania prison earlier this month after serving 27 years for molestation in an unrelated case, but was immediately rearrested for allegedly lying about where he planned to live after his release.

Fishbein will elicit all he can about Ramos's past admissions that he was "90 percent certain" he had Patz in his apartment the day he went missing. He may bring forth the testimony of jailhouse snitches incarcerated with Ramos, and he will ask, repeatedly, "Where is the evidence?"

"My client will plead not guilty," Fishbein said. And without suggesting his client's confession was false, he simply noted that it is a documented fact that people confess to crimes they have not committed.

Should the case make it all the way to trial, a knowledgeable insider said, one would probably bet against the prosecution.

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