Defense lawyers in the Etan Patz murder trial want to put into evidence a banana box filled with 50 pounds of potatoes to show jurors that defendant Pedro Hernandez could not have disposed of the six-year-old's body as he claimed in a purported confession.
Manhattan Supreme Court Justice Maxwell Wiley allowed prosecutors to show jurors a picture of a 48-pound squeezing into a banana box, but said he wants a day to decide whether to let the defense put on a similar display, which the prosecution opposes.
"Carrying a body is vastly different from carrying potatoes," prosecutor Joan Illuzzi-Orbon told Wiley. "The weight distribution of potatoes is vastly different."
"Certainly this is less prejudicial and inflammatory than the pictures of the boy in the box," countered defense lawyer Harvey Fishbein.
Hernandez, 53, of Maple Shade, New Jersey, told detectives in 2012 that as a teen working at a Soho bodega in 1979, he strangled Patz in the basement, stuffed the body into a box, and lugged it on his shoulder up the steps and 1 11/2 blocks to an alley where he left it.
Patz vanished without a trace on May 25, 1979, on his way to catch a school bus that stopped near the bodega. His body was never found.
The defense contends the confession was a delusion caused by a mental disorder, and has tried to convince jury that the story is implausible and that his description of some things -- such as the weather and Patz's clothing -- doesn't fit with known facts.
Illuzzi-Orbon angrily denounced the potato experiment. She said there's no way of knowing that the 10-pound bags of potatoes the defense wants to use actually weigh 10 pounds, and said the 50-pound weight listed for Patz on missing-child posters from 1979 was actually a mistake made by his parents.
Medical records, she said, show that Patz actually weighed 37 pounds five months before he vanished. If the judge allows the potatoes, she said, the prosecution will counter with a doll, with its weight distributed among arms and legs, which would be "more realistic."
"It's a child, not potatoes," she said.
Fishbein said jurors in the jury room would be free to take out however many potatoes they wanted if they believed prosecution arguments that Patz weighed less than 50 pounds.
"The jury should know what does it feel like to put 50 pounds on your shoulder," he said. "That's all this is about. Not a boy in a box or doll in a box."
Fishbein said he would not urge jurors to try to put it on their shoulders, for fear they would injure their backs, but just wanted to give them the opportunity to feel how much of a load it would have been. Wiley said he'll decide on Tuesday.