A judge in Manhattan on Monday scheduled the retrial of Pedro Hernandez in the 1979 kidnap-murder of Etan Patz to begin Feb. 22, over complaints from the defense that it should be sooner.
Supreme Court Justice Maxwell Wiley said he was pushing the new trial into February to accommodate new prosecutor Joel Seidemann, who needs to get up to speed after the prosecutor who tried the case this spring quit to run for Staten Island district attorney.
But defense lawyer Harvey Fishbein complained that Hernandez has been in jail since mid-2012, and an early opportunity for him to win his freedom should take precedence over Seidemann's convenience. Fishbein wanted an early January start to the retrial.
"It's what's fair, it's what's right, it's what's just, it's what's human," Fishbein said.
Hernandez, a disabled former bodega worker from Maple Shade, New Jersey, is accused of luring 6-year-old Etan into a SoHo basement and strangling him to death 36 years ago, in one of the nation's most notorious unsolved child disappearances.
Earlier this year, a jury deadlocked 11-1 to convict Hernandez in the case, after a five-month trial and more than three weeks of deliberation. Wiley said he expected the retrial to last until June, at which point Hernandez will have been in jail for four years.
For the second time since the trial ended, jurors who voted to convict Hernandez attended court Monday to show support for the prosecution and Etan's family. Three of them sat with the boy's father, Stan Patz, who also has spoken publicly about his belief that Hernandez is guilty.
"It's an emotional connection," juror Joan Brooks said afterward. " . . . We've grown close, and this is part of our lives now."
In court, Seidemann asked Wiley to impose a gag order on Fishbein, complaining that his hallway news conferences after hearings and during the trial risked tainting jurors. Wiley said lawyers should comply with court rules, but declined to issue any specific order.
After court, Seidemann chatted with both Patz and the jurors who showed up to support the prosecution, but declined to comment on whether he would ask them -- like Fishbein -- to stop speaking out.
Following the hearing, two of the jurors filed into the district attorney's office building with Seidemann -- following a pattern set in June, when six pro-conviction jurors attended a hearing and several went to the district attorney's office building afterward.
Edwin Thompson, one of the jurors attending the sessions, said the pro-conviction jurors are serving essentially as unpaid consultants, discussing with the prosecution their reactions to different pieces of evidence in the first trial.
He said prosecutors have been neutral about the jurors making public statements about the trial, neither encouraging nor discouraging public comments.