Prosecutors in New York may consider third trial in Etan Patz murder

Lawyers for the man convicted of killing six-year-old Etan Patz asked a judge to set a tight deadline to determine his fate, after an appeals court ordered a new trial or release.

In July, an appeals court cited issues with Pedro Hernandez’ police interrogation, his history of mental illness and the jury instructions at trial as reasons to reconsider his 2017 conviction.

On Thursday, Manhattan prosecutors – trying to preserve the conviction – asked for 90 days to make a decision on retrying Hernandez. The defence pushed for a decision in 30 days instead.

US District Judge Colleen McMahon said she would rule in a few days, noting it has been decades since the “nightmare” of Etan’s disappearance.

The May 1979 disappearance of Etan Patz while he was on his way to school in New York City brought nationwide attention to missing children.

The six-year-old vanished from a school bus stop in the SoHo neighborhood of Manhattan, leading to a massive search that ultimately drew in the Federal Bureau of Investigation. Despite extensive resources, Patz was never found, and his case haunted New York City for decades.

Hernandez had worked as a shop clerk near the bus stop where Patz disappeared. In 2012, during an interrogation, Hernandez said he lured Patz into a basement and strangled him.

Hernandez faced two trials over Patz’s murder. The first, in 2015, ended in a mistrial after the jury could not unanimously reach a conviction or acquittal.

He was convicted in a second trial in 2017 on charges of felony murder and kidnapping. The jury acquitted him of intentional murder.

Hernandez’ lawyers challenged that conviction over instructions provided to the jury by the judge. When the jury asked whether they should disregard Hernandez’ later confessions if they believed the first “was not voluntary,” the judge had responded, “The answer is, no.”

Lawyers for Hernandez argued the instruction prejudiced the jury and was inconsistent with legal precedent.

The Second Circuit Court of Appeals ruled in Hernandez’ favour in a surprise July decision.

Harvey Fishbein, one of Hernandez’s attorneys, told reporters on Thursday that “an innocent man is sitting in jail right now.” His legal team is seeking to have him released as soon as possible, and deter a third trial, he told reporters.

However, Manhattan prosecutors maintain that the conviction was just, and wrote in court filings that there were “substantial legal questions” with the appeals court’s decision.

Also on Thursday, the prosecution told the judge they need more time to decide on a possible new trial because some past witnesses are “old” or “deceased”. Prosecutor Matthew Colangelo added that some may have left New York City, and others “never thought they’d have to testify again.”

Prosecutors also plan an appeal to the US Supreme Court, though it is not clear if the court will hear the case.