A federal judge this week told the Manhattan district attorney’s office to begin the retrial of a man accused of murdering Etan Patz by next June 1 or release him.
The man, Pedro Hernandez, was convicted in 2017 of kidnapping and murdering Etan, a 6-year-old who disappeared in 1979 while walking the two blocks from his SoHo home to a school bus stop.
But the Second Circuit Court of Appeals in Manhattan found in July that the trial judge had improperly instructed jurors who asked about Mr. Hernandez’s confessions, one of which came before he was read his Miranda rights.
The appeals court sent the case back to Judge Colleen McMahon, of Federal District Court in Manhattan, who had earlier heard arguments, with a mandate that Mr. Hernandez be released or a new trial be held within a “reasonable period.”
On Tuesday, a prosecutor asked Judge McMahon to give the office 90 days to determine the feasibility of another trial, the third for Mr. Hernandez, and said the office would need about a year after that to prepare for a trial. Officials have been tracking down more than 50 witnesses from the 2017 trial to see if they could take the stand again, asking police departments across the country for their help.
The prosecutor, Matthew Colangelo, also told Judge McMahon that the office would ask the U.S. Supreme Court to review the Second Circuit decision, suggesting that if the justices accepted the case it would obviate the need for a retrial.
“It is not my job to read the tea leaves or make predictions or estimates about when or how the Supreme Court will act,” Judge McMahon wrote on Thursday, adding: “The mandate — my marching orders — simply directs that I set an end date by which any trial must commence, and order Hernandez freed if a retrial does not commence by that date.”
Mr. Hernandez, a former bodega clerk, fell under suspicion decades after Etan vanished. The Patz case riveted the nation and fostered lasting changes in the freedom parents grant their children.
Mr. Hernandez confessed after more than six hours of interrogation. But that questioning occurred before he had been read his Miranda rights, which specify that a suspect can remain silent and have the advice of a lawyer, and that whatever they say can be used in court.
Detectives read Mr. Hernandez those rights after his initial admission, and then asked him to repeat his statements. The first prosecution of Mr. Hernandez ended in 2015 with a hung jury and a mistrial. During his second trial, jurors asked the judge to explain whether — if they found that Mr. Hernandez’s first confession was not voluntary — they would have to disregard the later ones.
“The answer is no,” that judge replied. In July, the circuit panel wrote that the judge’s response had “contradicted clearly established federal law.”
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