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Jury in Etan Patz trial knew previous panel attended, defense says

Lawyers for Pedro Hernandez, convicted for the 1979

Lawyers for Pedro Hernandez, convicted for the 1979 kidnapping and murder of 6-year-old Etan Patz, said Wednesday, March 15, 2017 that jurors knew the previous mistrial's panel attended the February retrial. Credit: AP / Louis Lanzano

Defense lawyers for Pedro Hernandez revealed Wednesday in a motion seeking to overturn his guilty verdict for killing Etan Patz that an alternate juror has confirmed reports the panel knew pro-conviction jurors from an earlier trial were in attendance at his retrial in Manhattan Supreme Court.

Justice Maxwell Wiley had ruled the new jury wasn’t supposed to know there was a previous trial, but after Hernandez’s conviction, juror Michael Castellon told reporters for Newsday and DNAinfo that court officers had alerted the jury to the presence of several former jurors, who sat with the Patz family during the retrial.

Castellon attempted to withdraw the remark, but defense investigator Joseph O’Brien said in an affidavit that last week he received confirmation from Felix Nieves, a teacher who served as an alternate juror.

“Mr. Nieves told me that sometime prior to deliberations, he and other members of the jury learned that there had been an earlier trial and that jurors from that panel were in the courtroom,” the investigator said.

Manhattan District Attorney Cyrus Vance’s office declined to comment on the new information, but lawyers for Hernandez said that combined with news reports, it suggested the jury was contaminated, and urged Wiley to hold a hearing to determine what happened.

“In this highly emotional case, the presence of the prior jurors and their close and obvious relationship with the Patz family conveyed the message they believed in Mr. Hernandez’s guilt,” defense lawyer Alice Fontier argued. “This information deprived Mr. Hernandez of a fair trial.”

Hernandez, 55, of Maple Shade, New Jersey, was convicted on Feb. 14 of murder and kidnapping in the long-unsolved 1979 disappearance of 6-year-old Etan as he was on his way to catch a school bus. Hernandez worked in a bodega near the bus stop at the time.

After he was identified as a suspect by a relative three decades later, Hernandez confessed to police. The defense argued at trial that Hernandez was delusional as a result of a mental problem, and tried to cast blame on a convicted molester who had been linked to Patz’s family.

The first trial ended in an 11-1 deadlock in favor of conviction. Afterward, several jurors from that trial consulted with the prosecution, became public advocates of Hernandez’s guilt and, in their words, bonded with Etan’s family.

Nieves, according to defense investigator O’Brien, said “he could not remember” who informed him about the prior jurors’ attendance, but said “it was definitely another juror, not any of the three court officers” and “assured me that other jurors knew this as well.”

O’Brien, an FBI agent for 20 years, said the other jurors rebuffed him or ignored his efforts to speak to them, which he said was unusual and suggested a “coordinated effort” to stonewall.

Wiley, who has postponed sentencing Hernandez, has not set a date for when he will decide the defense motion.

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