Etan Patz case: Trying defendant Pedro Hernandez a third time could prove difficult, experts tell Newsday

Manhattan District Attorney Alvin Bragg has no easy choices as he wrestles with the decision to set free or retry the Manhattan bodega clerk convicted in the 1979 disappearance and murder of 6-year-old Etan Patz, criminal justice experts told Newsday.

As with any case that is more than four decades old, the legal eagles said the passage of time will make prosecuting Pedro Hernandez a third time incredibly difficult. Witnesses, including detectives who first investigated the disappearance that stunned the nation, may have died. Memories have faded. Defense attorneys, they said, will have the added benefit of having the prosecution’s prior strategy, giving them a blueprint for how to sow doubt in jurors’ minds.

"Time is not the prosecution's friend," said Michael J. Brown, a Long Island defense attorney who represents alleged Gilgo Beach serial killer Rex A. Heuermann.

Bragg's office on Monday said it was reviewing the court's ruling.

Attorneys for Hernandez, who has been serving a sentence of 25 years to life 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.

If prosecutors seek a retrial, it would be the third time Hernandez faces trial. His case was overturned on Monday by a three-judge appeals panel who found the judge in the 2017 trial erroneously failed to properly instruct the jury while responding to a jury note regarding confessions Hernandez made. Hernandez’s first trial, which also took place in a New York State court, ended in a deadlock in 2015.

"It's very hard to try old cases, and it's always hard to retry cases that have already been tried," said Daniel R. Alonso, who was chief assistant district attorney in Manhattan when Hernandez was charged in 2012.

Hernandez’s case has also always been complicated by a lack of physical evidence that was centered on his disputed confession, lawyers said.

Etan was on his way to a school bus stop in SoHo when he vanished in 1979, his face made famous on milk cartons across the nation and putting the spotlight on missing children. His remains were never recovered, and he was declared dead by a civil court in 2001.

Hernandez was arrested in 2012 on a tip from a relative. In 2017, he was found guilty of kidnapping and so-called felony murder for Etan’s death but was cleared of the top charge of intentional second-degree murder, Newsday reported at the time.

Mark J. Lesko, former acting U.S. attorney for the Eastern District, said the Second Circuit’s appellate decision to overturn the conviction was "extremely rare" and that appeals courts are often deferential to prosecutors.

He said there would be public uproar if Bragg decided not to retry the case, and Etan's family would be very upset. "It is a really, very, very tough decision," said Lesko, now a defense attorney.

Police said Hernandez first admitted he strangled Etan before advising him he could remain silent and have an attorney present. He later restated his confessions on tape at least twice after the legally required Miranda warnings were given.

In a disputed confession, Hernandez told police that he had lured Etan into a basement with a soda. The defense said he had a history of mental illness and suffered from a low IQ.

During nine days of deliberations, jurors in the 2017 case sent repeated queries about the admissions Hernandez made. The last inquiry asked whether they had to disregard the two recorded confessions, if they concluded that the first one was invalid.

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

Alafair Burke, a law professor at Hofstra University, questioned whether Bragg will put Hernandez through a third trial.

"The heart of the case are statements made by someone who has a documented history of mental illness that affect his perceptions and his reliability, combined with a very low IQ," Burke said. Another potential complication for prosecutors is evidence for alternative suspects allowed during the prior trials, she said. Jose Ramos, a convicted pedophile, was previously considered a suspect but was never charged.

Fred Klein, a former Nassau homicide prosecutor and a professor at Hofstra University's law school, said prosecutors would have to overcome these obstacles to win the case.

"I think the barriers to a subsequent prosecution are enormous, but what may save it is that all these confessions are videotaped, so they could certainly replay the videotapes and try to convince a new jury that the subsequent Mirandized confessions are voluntary," Klein said.

If prosecutors choose not to retry the case, or release Hernandez, the district attorney also has the option to seek a Supreme Court review or request a full en banc review by the active federal appeal judges in the Second Circuit court, not just the three who made the recent decision, according to Burke and Klein.