Appeals court orders new trial for man convicted in 1979 Etan Patz case

A federal appeals court ruled on Monday that the former bodega clerk convicted in the 1979 disappearance and murder of 6-year-old Etan Patz should be given a new trial — or be released from prison.

Attorneys for Pedro Hernandez, who has been serving a sentence of 25 years to life in prison after he was found guilty in 2017 of kidnapping and murdering the boy whose disappearance in Manhattan stunned New York and the nation, argued that instructions given to the jury during the trial were improper and prejudiced the verdict.

"We conclude that the state trial court contradicted clearly established federal law and that this error was not harmless," the three-judge appeals panel agreed in its ruling.

Etan was on his way to a school bus stop in SoHo when he disappeared 46 years ago, fueling parental fears and making families more cautious about allowing children to play unsupervised in their neighborhoods. His remains were never recovered, and he was pronounced legally dead by a civil court in 2001.

The court ordered Hernandez to be released from prison unless the state gives him a new trial within a reasonable period. Hernandez was arrested in 2012, more than 30 years after Etan vanished from the streets of Manhattan.

"For more than 13 years, Pedro Hernandez has been in prison for a crime he did not commit and based on a conviction that the Second Circuit has now made clear was obtained in clear violation of law," said one of Hernandez’s attorneys, Ted Diskant, co-head of the global white-collar and government investigations practice at McDermott Will & Emery.

"We are grateful the Court has now given Pedro a chance to get his life back, and I call upon the Manhattan District Attorney’s office to drop these misguided charges and focus their efforts where they belong: on finding those actually responsible for the disappearance of Etan Patz," Diskant added.

The case against Hernandez was originally brought by former Manhattan District Attorney Cyrus Vance.

"Whether one agrees with the federal appeals court or not, in this moment, my thoughts are not with the appeals court, but with Etan and the brave Patz family," Vance said in a prepared statement. "They waited and persevered for 35 years for justice for Etan which today, sadly, may have been lost."

Emily Tuttle, a spokeswoman for current Manhattan District Attorney Alvin Bragg, said prosecutors are reviewing the decision.

Etan’s parents, Julie and Stanley Patz, could not be reached for comment.

Hernandez was a teenager and working in a SoHo bodega when Etan vanished. He did not become a suspect in the boy’s disappearance until 2012, when a tipster told police that he had made remarks years earlier about killing a child in New York.

Hernandez told police he had lured Etan into the bodega’s basement by promising him a soda, and then choked him. He said he put Etan, who he said was still alive, in a box and left it with curbside trash.

Hernandez’s attorneys said the confession was false and that Hernandez had a mental illness that made him confuse reality with imagination.

Hernandez’s first trial, which also took place in a New York state court, ended in a deadlock in 2015.

On Monday, the appeals court said the trial judge gave prejudicial instructions to the jury in response to a jurors’ note about the confession to law enforcement.

Police said Hernandez confessed while he was questioned for seven hours — but before they notified him of his Miranda rights to remain silent and have an attorney present. He repeated the confession at least twice on tape after investigators began recording the interrogation.

During nine days of deliberations, jurors sent repeated queries about those statements. The last inquiry asked whether they had to disregard the two recorded confessions, if they concluded that the first one — given before the Miranda warning — was invalid.

The judge said no, but the appeals court said that was incorrect, calling the error "manifestly prejudicial."

Julie and Stanley Patz pushed to establish a national missing-children hotline and to make it easier for law enforcement officials to share information about children’s disappearances. Etan was one of the first missing children profiled on a milk carton, and in 1983, President Ronald Reagan designated May 25 — the date Etan disappeared — as National Missing Children’s Day in the United States.

Newsday's Lorena Mongelli contributed to this story.