A defense lawyer for the man accused of killing Etan Patz in 1979 pressed a judge on Wednesday to exclude losing Staten Island District Attorney candidate Joan Illuzzi-Orbon from participating as a prosecutor in the scheduled retrial of the case this year.
Illuzzi-Orbon, a top gun in the Manhattan District Attorney’s Office, led the prosecution of Pedro Hernandez that ended in a mistrial last year, using the case as a springboard to run in Staten Island. In December, she rejoined the Hernandez prosecution team.
Defense lawyer Harvey Fishbein told Manhattan Supreme Court Justice Maxwell Wiley that while running, Illuzzi-Orbon advertised her close ties to the Patz family and expressed her personal belief in Hernandez’s guilt, violating ethics rules for prosecutors.
He said those statements could prejudice jurors, who were supposed to judge a case on the facts, not the personal beliefs of a prosecutor. “She was using Pedro Hernandez for her own personal advance,” Fishbein said. “She shouldn’t have done that.”
But prosecutor Joel Seidemann, who took over the case when Illuzzi-Orbon left, played clips of statements Fishbein made to the media during the trial, calling him a “hypocrite” who was himself “pontificating and bloviating” daily for his “15 minutes of fame.”
He said the defense was just seeking a tactical advantage by excluding an experienced foe. “Mr. Fishbein is not free to choose the prosecutor who will represent the People in this court,” Seidemann said.
Fishbein opposes Illuzzi-Orbon appearing before the jury, but said he had no objection to her assisting behind the scenes. He said prosecutors were subject to stricter rules on out-of-court statements than defense lawyers, who had a duty to defend their clients.
Wiley, a former Manhattan prosecutor, said he would decide the issue within a week.
Six-year-old Etan disappeared on his way to school in SoHo 35 years ago. Hernandez, 55, of Maple Shade, New Jersey, a former bodega worker in the neighborhood, was charged in 1979 based on a confession after police received a tip.
The defense contends that Hernandez suffers from mental problems, and his confession was a delusion. The jury in last year’s trial split 11-1 for conviction, leaving the case unresolved. Etan’s father Stanley endorsed Illuzzi-Orbon in her election campaign.
Jury selection for the retrial is scheduled to begin next month.