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A man convicted eight years ago of killing the first missing child featured on a milk carton in 1979 must be retried by next June or be released, a federal judge said Friday, according to reports.
Pedro Hernandez was convicted in 2017 of kidnapping and murdering Etan Patz, 6, who was on the way to his bus stop and sentenced to 25 years to life, but last July the sentence was overturned.
On Thursday, New York Judge Colleen McMahon of Manhattan’s federal district court ruled that Hernandez must receive a third trial by June 1, or he’ll need to be released.
Hernandez first trial ended in a hung jury.
MENENDEZ BROTHERS’ BID FOR NEW TRIAL REJECTED AS KILLER SLAMS JUDGE’S DECISION AS ‘MENTAL GYMNASTICS’
Split of Pedro Hernandez in court and a missing poster for Etan Patz (Reuters/Louis Lanzano/Pool; Reuters/Defense attorney Alice Fontier/Handout )
His lawyers had asked earlier this week for a date to be set for his release if prosecutors don’t retry him.
The 2nd U.S. Circuit Court of Appeals overturned Hernandez’s conviction this summer based on the jury not getting a thorough enough explanation of its options, including that it could ignore Hernandez’s confessions.
Five years before his conviction, Hernandez admitted to police that he lured Patz into the basement of the convenience store where he worked using soda.
Prosecutors said Hernandez choked Etan, stuffed his body into a plastic garbage bag hidden inside a box, and took it out with the trash.
The appeals court found that the trial judge in 2017 gave “clearly wrong” and “manifestly prejudicial” instructions to the jury in response to a question about the suspect’s confessions to police.
During jury deliberations, the jury asked the judge whether, if it deemed invalid a confession Hernandez made before being advised of his Miranda rights to remain silent, it must also disregard a subsequent confession after those warnings were given.
A poster with the writing of Pedro Hernandez is pictured in this undated evidence handout photo provided by defense attorney Alice Fontier. (Reuters/Defense attorney Alice Fontier/Handout)
MURDER OF ETAN PATZ, ONE OF FIRST MISSING CHILDREN ON MILK CARTONS, RAISES CONFESSION QUESTIONS AFTER REVERSAL
The judge told the jury no, but the appeals court said that answer was incorrect.
Hernandez, of Maple Shade, New Jersey, confessed soon after his brother-in-law told detectives the store clerk may have been a suspect, The New York Times reported. The relative claimed Hernandez told a prayer group decades earlier that he’d killed a child in New York.
His defense team had argued during his trial that he is a mentally unstable man with a low IQ who was unable to separate truth from fiction.
Defense lawyers also pointed to a different man who was long the prime suspect — a convicted Pennsylvania child molester who made incriminating remarks about Etan’s case in the 1990s and who had dated a woman acquainted with the Patz family. He was never charged and denied killing the boy.
Stanley Patz, Etan Patz’s father, at the Manhattan State Supreme Court following the sentencing of Pedro Hernandez, in New York City on April 18, 2017. (Reuters/Lucas Jackson)
Matthew Colangelo, a prosecutor in the office of Manhattan District Attorney Alvin Bragg, said before McMahon’s ruling that prosecutors likely won’t know for three months whether they’ll seek a new trial.
Prosecutors also plan to ask the U.S. Supreme Court to review the reversal of Hernandez’s conviction.
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“It is not my job to read the tea leaves or make predictions or estimates about when or how the Supreme Court will act,” McMahon wrote. “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.”