Retrial of Pedro Hernandez delayed due to lawyer’s surgery

The retrial of Pedro Hernandez on charges that he kidnapped and murdered 6-year-old Etan Patz in 1979 was postponed for six months on Monday.

Hernandez, whose first trial ended in a jury that deadlocked 11-1 for conviction last year, will now go on trial for the second time in September instead of later this month because his defense lawyer may need back surgery.

Supreme Court Justice Maxwell Wiley in Manhattan granted the delay at the request of defense lawyer Harvey Fishbein, and Hernandez agreed to it during a brief hearing.

Hernandez, 55, of Maple Shade, New Jersey, was a bodega worker in the SoHo neighborhood where Etan disappeared on his way to school in 1979. After a relative tipped off police in 2012, Hernandez confessed, but the defense says he fantasized the crime due to a mental disorder.

In rulings on Monday, Wiley said the defense — as at the first trial — will be allowed to present evidence about the possibility that Jose Ramos, a convicted pedophile who had contact with a woman who walked Etan home from school, was the real culprit.

Ramos, as at the first trial, would first have to insist on his Fifth Amendment rights outside the presence of the jury. Former federal prosecutor Stuart Grabois and a jailhouse informant are expected to describe incriminating statements by Ramos, long suspected by law enforcement.

Wiley ruled, however, that the Hernandez defense team will not be allowed to cast the net of suspicion wider by presenting evidence about Othniel Miller, a neighborhood handyman with whom Etan was friendly. In 2012, the FBI and NYPD dug up the site of his basement workshop.

The judge also nixed a bid by Fishbein to call a “memory expert” to the stand at the retrial to tell jurors about how the passage of time and misinformation spread by the media can produce flawed recollections of a day 36 years ago.

Wiley said jurors don’t need an expert to tell them that the passage of time dims memory.

“The court is not persuaded,” he wrote, “that the issue of memory — that is, of a person’s ability to recall and describe long-ago events — requires a purported scientific explanation in this case any more than it does in any criminal case.”