"I think there's a 60 percent chance of foul play," Beverly Hills-based criminal defense attorney Mark McBride tells PEOPLE.
McBride bases his suspicions primarily on an as-yet-unexplained discovery on the boy's 19-foot Seacraft boat, recovered March 18 by crewmembers of a Norwegian freighter, who spotted it capsized and floating in a shipping channel 100 miles off the Bermuda coast. Photographs snapped by the crew show the boat's ignition and battery switch both in the off positions.
"The battery switch was hard to get to and two people on a boat in distress or in a horrible storm wouldn't do that," McBride said, adding it's entirely possible that "somebody wanted to immobilize the boat for a time so they could handle in such a way that they could turn it over."
"We do know for sure that boat was disabled intentionally because the battery switch, which is very difficult to get to, was in the off position," Guy Bennett Rubin, attorney for Pamela Cohen, Perry's mother, told WPBF in April, just after the release of the photos by the Florida Fish and Wildlife Commission. "That can't be maneuvered by the passage of time, the current, and other events. We want forensic experts in accident reconstruction to look at the boat and tell us what happened... Maybe the most logical explanation is the storm, but maybe they were abducted. Or maybe there was foul play because they had thousands of dollars' worth of reels."
In an emergency hearing held April 29 in a West Palm Beach courtroom, FFWCC General Counsel Harold Vielhauer, via phone, argued that the agency has seen instances in which wave actions and other environmental conditions have turned switches to the off position.
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And Captain Jimmy Hill, a longtime maritime industry professional and founder of the Southeast US Boat Show, tells PEOPLE that if they experienced mechanical trouble while on the water, the boys may have turned the battery and ignition off to save energy and fuel while troubleshooting possible issues.
Still, "If the boat was capsized, there should be DNA evidence all over the boat, all over the battery switch, even if it was in the water and even if it was handled by the Norwegian crew. They wouldn't disturb any evidentiary value on this boat," McBride says.
He also noted that expensive fishing rods, reels and other gear may have been a draw for thieves and that, because both families are prominent and known for their charitable efforts, someone with ill intentions may have recognized the boys.
"Two small kids on a boat in the middle of nowhere would be a prime target," McBride says.
Meanwhile, FFWCC officials maintain that the investigation is not and has never been a criminal one, but rather a boating accident and missing persons case. That stance is what allowed the return to the Stephanos family of Austin Stephanos' iPhone, found in a latched compartment on the boat and potentially holding clues to just what happened to the boys. Per a judge's order, that phone was sent to manufacturer Apple, Inc. for a full forensic analysis.
"There is no criminal investigation. There is nothing to suggest that this was anything more than an unfortunate accident," Vielhauer said at Friday's hearing.
Yet, there seems to be a discrepancy. Pamela Cohen and Nicholas Korniloff (Perry's stepfather) told PEOPLE that they were sworn in as witnesses in a criminal investigation when interviewed by the FFWCC in October. Case documents released by the agency in April back that statement. Each person interviewed (including family members of both boys) and investigators conducting those interviews all signed a form titled, "Recorded Statement Outline." That form included a section with an affidavit that required the investigator to print his or her name and the line, "I am conducting a criminal investigation."
Both boys remain listed in the Florida Crime Information Center database for missing persons.
At the conclusion of his investigation, the FFWCC’s Kyle Patterson wrote, "This will remain classified as a missing persons case until additional information is discovered."
McBride believes that a full forensic analysis of the iPhone’s recoverable data and the boat, currently en route to Port Everglades to be taken into custody by the FFWCC, may provide new information that could prompt confirmation of the case as a criminal one.
Until evidence proves otherwise, "this should be treated as a homicide in a coastal city in Florida," McBride says. "The key to solving this case is to focus on the humanity of it – that two young kids are missing."