Lawyers for a man whose conviction in the 1979 disappearance of 6-year-old Etan Patz was recently overturned asked a judge on Tuesday to set a date for his release from prison if prosecutors don't decide soon to hold a new trial.
Pedro Hernandez's conviction was overturned in July by the 2nd U.S. Circuit Court of Appeals which ruled that the jury in his 2017 trial should have gotten a more thorough explanation from the judge of its options, which could have included disregarding all of the confessions. He was ordered freed unless he was retried “within a reasonable period.”
A federal judge expressed doubt Tuesday that the U.S. Supreme Court will take up the recent appeals court decision.
Judge Colleen McMahon in Manhattan did not immediately rule on the request by Hernandez's lawyers to set a date to free their client.
Matthew Colangelo, a prosecutor in the office of Manhattan District Attorney Alvin Bragg, said prosecutors likely won’t know for three months whether they’ll seek a new trial and if the high court will hear an appeal.
He said the passage of time since the crime and the uncertainty over how many of the 50 witnesses who testified at Patz's 2017 trial would be available was delaying a decision on whether to retry Patz. So far, he said, prosecutors have spoken to about two dozen of the witnesses from the last trial.
Although he said the possibility of the Supreme Court hearing an appeal was “greater than remote,” the judge expressed doubt, saying: “This is not the kind of case the Supreme Court would be inclined to take.”
Hernandez’s lawyers say he confessed falsely because of a mental illness that sometimes made him hallucinate.
After Tuesday's hearing, defense attorney Harvey Fishbein said he wants prosecutors to make a decision whether to retry Hernandez because “we have a man sitting in jail now for 13 years that the 2nd Circuit said was innocent.”
He has already been tried twice. His 2017 conviction came after a previous jury couldn’t reach a verdict. Now 64, he has been serving a sentence of 25 years to life in prison.
Hernandez was a teenager working at a convenience shop in Etan’s downtown Manhattan neighborhood when the boy vanished. Police met him while canvassing the area but didn’t suspect him until they got a 2012 tip that he’d made remarks years earlier about having killed a child in New York, not mentioning Etan’s name.
Etan was among the first missing children pictured on milk cartons. His case contributed to an era of fear among American families, making anxious parents more protective of kids who had been allowed to roam and play unsupervised in their neighborhoods.
