A federal judge will weigh Tuesday whether to release the former New York City bodega clerk whose murder conviction in the notorious 1979 disappearance of little Etan Patz was stunningly overturned.
Pedro Hernandez, 64, argues that he should be freed from state prison in light of an appeals court’s finding in July ordering his release unless the Manhattan District Attorney’s office sets a new trial date within a “reasonable” time period.
Judge Colleen McMahon will hear arguments from both sides during a Manhattan Federal Court hearing Tuesday afternoon — as it remains unclear if Hernandez will face a third trial over the headline-grabbing case.
The DA’s office has countered that Hernandez should stay locked up at Clinton Correctional Facility until the US Supreme Court decides whether to hear prosecutors’ bid to restore the conviction.
Prosecutors said they have taken preliminary steps to prepare for what would be an arduous third trial. But Manhattan District Attorney Alvin Bragg has yet to confirm whether his office will in fact re-try the decades-old case, which was brought by his predecessor, Cy Vance.
“Preparing for testimony at a retrial would be particularly taxing for the victim’s family, who would have to revisit the most traumatic event of their lives for a retrial that may not occur,” Assistant District Attorney Matthew Colangelo noted in court papers last week.
The case has baffled authorities and fascinated the public for decades after little Etan vanished from a SoHo street on May 25, 1979 — the very first time his parents allowed him to walk alone to the bus stop.
He became one of the first missing kids ever pictured on milk cartons, and the anniversary of his disappearance was designated National Missing Children’s Day.
His body was never recovered, and no physical evidence ever tied Hernandez to the murder.
But Hernandez made a chilling videotaped confession to fatally strangling the 6-year-old boy after luring him into the basement of the bodega near his Manhattan schoolbus stop with the promise of a soda.
The accused killer’s lawyers insist that he has been wrongly imprisoned for 13 years based solely on his confessions to the heinous crime — which they say were caused by delusions he suffered as part of a mental illness.
In July, the 2nd Circuit Court of Appeals overturned the verdict against Hernandez, finding that the judge’s instructions to the jury at his 2017 trial were improper, and prejudiced the outcome.
Even if the judge ordered Hernandez’s release after Tuesday’s arguments, he could still remain behind bars, as he’d be turned over to the city Department of Correction and would be subject to a separate bail hearing in state court.
Hernandez became a suspect in 2012, when cops received a tip that he’d divulged to members of a prayer group that he’d killed a child in New York.
His first trial ended in 2015 with a hung jury. At his re-trial in 2017, he was found guilty of kidnapping and murder and sentenced to the maximum of 25 years to life in prison.