A court overturned the conviction of Pedro Hernandez in the Etan Patz case. Now a judge will set a deadline for a retrial decision.
A judge will determine in a few days what the deadline will be for prosecutors to decide whether to re-try Pedro Hernandez, the man convicted in the 1979 disappearance of 6-year-old Etan Patz.
Back in 2017, Hernandez was sentenced to 25 years to life in prison after two trials, with the second trial concluding after nine days of jury deliberation.
In July, a federal appeals court overturned that conviction, saying the "the state trial court contradicted clearly established federal law." The appeals court ordered that Hernandez face a new trial "within a reasonable period" or be released.
Attorneys for Hernandez and the Manhattan DA's office were in federal court Tuesday.
It would be the third trial for Hernandez.
At issue: What is "a reasonable period" for prosecutors to decide on retrial?
Prosecutors argue Hernandez should remain in prison while the Supreme Court considers whether or not the appeals court's decision to overturn his conviction should stand. Prosecutors argue that ought to be considered as being "within a reasonable period," as per the appeals court's order. Prosecutors went on to argue if the Supreme Court overrules the appeals court, then Hernandez's conviction would stand, and there would be no need for a retrial.
In a letter to the judge, prosecutors said a retrial would be a "particularly complex and burdensome undertaking given the unique nature of this case," pointing out the initial murder and kidnapping happened in 1979, the trials took place in 2015 and 2016-17, "and any further retrial ... would occur nearly a decade after the last trial."
"It would be unreasonable to require the state court system and the People to initiate a complicated retrial" before the Supreme Court makes its decision on whether or not to reverse the appeals court's decisions, prosecutors wrote.
Hernandez's attorneys argue in their own letter to the judge that prosecutors are trying to "needlessly delay [Hernandez's] right to be released or retried in a timely fashion," as per the appeals court's decision. Hernandez's attorneys want the judge to set a 30-day time limit for prosecutors to reach a decision on whether or not they'll retry him.
"Alternatively, if [prosecutors] report that they do not intend or have the ability to retry [Hernandez], this court should order [Hernandez's] immediate release," defense attorney Ted Diskant wrote.
The appeals court, in making its decision, said the judge in Hernandez's second trial gave "clearly wrong" and "manifestly prejudicial" instructions to the jury in response to a question about Hernandez's confession in the case. Hernandez's attorneys argued his confession was false and brought on by mental illness.
"The jury in the case considered confessions when they shouldn't have been able to consider confessions," legal expert David Schwartz said. "If a jury determines that a confession is an involuntary confession, then they can't consider it. The law has to be equal for everyone."
The Manhattan DA's office is asking for 90 days to decide whether a retrial is feasible, given the age of some of the witnesses and the need to find people who have since relocated. Hernandez's defense attorneys want a 30 day deadline for prosecutors to decide.
"We want one of two things. For there to be another trial, or more importantly we urge the district attorney's office to no re-try for a third time Pedro Hernandez," defense attorney Harvey Fishbein said.
The judge noted this was an "unusually complicated situation."
Etan Patz case had national impact
The disappearance of Patz changed the country.
He vanished in 1979 while walking to his school bus stop in SoHo - the first time he ever walked there alone. He became one of the first missing children to be pictured on milk cartons.
The date of his disappearance was designated National Missing Children's Day.