A new trial for the man convicted of murdering Etan Patz is uncertain despite a court order.
A federal appeals court said Pedro Hernández should be retried or released because of an error by the trial judge.
FILE – In this Nov. 15, 2012, file photo, Pedro Hernandez appears in Manhattan Criminal Court in New York. Hernandez, convicted of killing 6-year-old Etan Patz, who disappeared in 1979, will learn his punishment on Tuesday, April 18, 2017, in one of the most notorious missing children cases in the United States.
Louis Lanzano/AP
The Manhattan District Attorney’s Office requests the intervention of the United States Supreme Court.
Meanwhile, prosecutors on Tuesday asked a federal judge to give them 90 days to decide whether to retry Hernandez.
Defense attorneys said prosecutors should only have 30 days. The judge said she would decide how much time is warranted in the coming days.
Patz disappeared while walking to school in SoHo in 1979. He became the first missing child whose face appeared on a milk carton and changed the way the country responds to missing child cases.
FILE – This May 28, 2012 file photo shows a newspaper with a photograph of Etan Patz that is part of a makeshift memorial in the SoHo neighborhood of New York. While Pedro Hernandez told police he strangled 6-year-old Patz in 1979, his defense said it was fiction by a man with an IQ in the bottom 2 percent of the population and a mental illness that makes it difficult for him to distinguish real life from fantasy.
Mark Lennihan/AP
Hernandez, 64, is currently in state prison serving a sentence of 25 years to life in prison after being convicted in 2017 of kidnapping and murdering Patz.
Due to a lack of physical evidence, the trial (Hernández’s second, after the first jury ruled) depended entirely on Hernández’s alleged confessions of having lured little Etan to a basement.
Hernandez, who has a documented history of mental illness and a low IQ, initially confessed after seven hours of interrogation by three police officers. Immediately after Hernandez confessed, police administered Miranda warnings, began video recording, and had Hernandez repeat his confession on tape. He did it again, several hours later, before an assistant district attorney.
When deliberating, the jury sent the judge three different notes about Hernandez’s confessions. One of them asked the judge to explain whether, if the jury determined that Hernandez’s confession before being read his rights “was not voluntary,” it “should ignore” subsequent confessions. They responded, without further explanation, that “the answer is no.”
The federal appeals court concluded that “the state trial court’s instruction was clearly erroneous” and “that the error was manifestly prejudicial.” The court said Hernandez must be released or retried within a reasonable period of time.
