Man convicted in 1979 kidnapping and killing of Etan Patz must be retried by June, judge rules

The man convicted of the kidnapping and murder of 6-year-old Etan Patz in New York in 1979 must be retried by June or be released, a New York federal judge ruled.

Pedro Hernández, 64, was convicted in 2017 of Etan’s kidnapping and murder and sentenced to 25 years to life in prison after admitting to luring the child to the basement of a bodega in the SoHo neighborhood in 1979.

In July, a federal appeals court in New York overturned that conviction and ruled that Hernandez must face a new trial or be released. This decision was made following erroneous instructions from the New York state judge presiding over his case in response to a jury note regarding his alleged confession.

Judge Colleen McMahon of Manhattan federal district court said in a ruling Thursday that if jury selection does not begin by June 1, 2026, Hernandez should be released.

His filing said prosecutors wanted the Supreme Court to review the decision by the U.S. Court of Appeals for the Second Circuit.

“It is not my job to read the tea leaves and make predictions or estimates about when and how the Supreme Court will act on any petition for certiorari that may be filed,” McMahon wrote.

She admitted that there were challenges for the prosecution given that only one member of the original trial team remains in the Manhattan District Attorney’s office, and that the prosecution is trying to locate “dozens of long-scattered witnesses who testified at the last trial about seven years ago.”

“The warrant – my marching orders – simply directs me to set an end date on which any new trial must begin, and to order Hernandez’s release if a new trial does not begin by that date,” McMahon said.

Harvey Fishbein, an attorney representing Hernandez in the state proceedings, told NBC News on Friday: “We again urge the prosecutor that justice demands that there be no third trial in this 46-year-old case against a 64-year-old man who has unjustly spent the last 13 years in prison.”

He noted that the Second Circuit Court’s July ruling “vacated the conviction not on technical grounds but because the trial court’s error led to the conviction of an innocent man with no criminal history.”

Hernández’s lawyers had argued over the summer that the trial judge’s instructions were improper and tainted the verdict. Defense attorneys also previously claimed that Hernandez suffered from mental illness and only confessed to the crime after enduring hours of questioning by police.

Etan disappeared on May 25, 1979, while walking to a bus stop just two blocks from his family’s Manhattan home, sparking a massive search around SoHo. He was pronounced dead in 2001 and his body was never found.

Police continued to search for the person responsible for Etan’s death and found Hernandez in New Jersey in 2012 after his brother-in-law called him, according to the July order.

Hernández later confessed to kidnapping and killing the child, according to the order. He reportedly told police that he lured the boy into the bodega with the promise of a soda, but instead grabbed him by the neck and fatally choked him. He said he then put the boy’s body in a “trash bag” before putting it in a box and leaving it with the trash cans on the street corner, the order states.

Although Hernandez did not give a motive in his confession, he denied it involved sexual acts, according to the order.

“Hernandez, who has a documented history of mental illness and a low intelligence quotient (“IQ”), initially confessed after approximately seven hours of unannounced interrogation by three police officers,” the July ruling states. “Immediately after Hernandez’s confession, police warned Miranda, began videotaping, and asked Hernandez to repeat his confession on tape. He did so again, several hours later, in front of an assistant prosecutor (“ADA”). At trial, the prosecution discussed and played these videos several times.”

Hernandez’s first trial in 2015 ended in a hung jury. His second trial began in September 2016 and focused on the alleged confession.

During deliberations, the jury sent three notes to the judge regarding Hernandez’s confession, the third asking the court to “explain” whether, if the jury believed that Hernandez’s unmirandized confession “was not voluntary,” it “should ignore” subsequent confessions, including the videotaped confessions at the Camden County Local Prosecutor’s Office (“CCPO”) and to the Manhattan District Attorney. (‘DA’s’) Office.

According to the July order, the judge did not explain and only said that “the answer is no.” The jury, after nine days of deliberations, ultimately found Hernandez guilty of first-degree murder and kidnapping, and acquitted him of intentional murder, the order states.

Etan’s disappearance spurred the movement to put photos of missing children on milk cartons, making him one of the first faces to appear on ships in an effort to get the public’s help in finding him.