By Joseph Ax
(Reuters) - The lawyer assigned to handle the defense of Pedro Hernandez, the man who New York police say has confessed to strangling Etan Patz 33 years ago, has a track record of representing high-profile homicide defendants with a history of mental illness.
Harvey Fishbein, a 39-year veteran of criminal defense law in New York, wasted no time in signaling that Hernandez's mental fitness would be an issue in the case.
During a brief arraignment hearing on Friday, for which Hernandez appeared by video link from New York's Bellevue Hospital, Fishbein worked to cast doubt on his client's confession, saying Hernandez has a "history of hallucinations, both visual and auditory."
Fishbein requested a psychiatric examination to determine Hernandez's "fitness to proceed." He said Hernandez has been diagnosed with schizophrenia and bipolar disorder and is on medication.
Hernandez, 51, who worked as a stock boy in a small food store on the Manhattan street where Patz was last seen on May 25, 1979, was arrested Thursday.
Police Commissioner Raymond Kelly said Hernandez would be charged with second-degree murder after he told police in a videotaped confession that he strangled the boy in the store's basement, placed his body in a bag and dumped it in the trash.
While Hernandez's competency has not been raised as an issue, police said Friday he had been transferred to Bellevue Hospital Center from his jail cell to ensure medications he was taking were administered properly. Paul Browne, a spokesman for the New York City Police Department, declined to identify the medications or the illnesses being treated.
Given the absence of physical evidence connecting Hernandez with the crime - and the fact that he appears to have no history of criminality - his mental state while making his confession could become a significant factor in the case.
"Competency could be an issue," said Gerald Shargel, a prominent criminal defense attorney in New York.
Paul Callan, a former homicide prosecutor, agreed, saying Fishbein may use Hernandez's mental condition to attack the reliability and admissibility of his confession.
"The Achilles' heel of this prosecution is what appears to be its sole reliance on a confession from an individual with apparent mental problems," Callan said.
According to his website, Fishbein has "lectured, taught and mentored lawyers and law students on various aspects of criminal defense practice, including ethics and the psychiatric defense."
Among Fishbein's most noteworthy cases, according to his website, was that of Andrew Goldstein, a schizophrenic man charged in 1999 with shoving 32-year-old Kendra Webdale in front of a subway car, killing her.
The case led to Kendra's Law, a state statute that allows families to demand court-ordered psychiatric treatment for troubled relatives. Goldstein, whose first trial ended with a hung jury and whose conviction at his second trial was overturned on appeal, pleaded guilty to manslaughter in 2006.
In 1996, in a similar case, Fishbein persuaded a jury that Reuben Harris was not responsible for his actions when he pushed a 63-year-old woman in front of a subway car because he suffered from schizophrenia. According to Fishbein's website, Harris was hospitalized for treatment rather than incarcerated as a result.
Fishbein is the chairman of the screening committee for court-appointed lawyers for indigent defendants in Manhattan and the Bronx. The assignment of court-appointed attorneys is not always random. Sometimes a court can request a particular attorney in certain situations when it deems that is needed "to protect the interests of the client."
A graduate of the National Law Center at George Washington University, Fishbein worked for the Legal Aid Society before entering private practice in 1984, according to his online biography.
(Additional reporting by Noeleen Walder; editing by Noeleen Walder, Todd Eastham and Eric Beech)