In Patz Case, Manhattan Prosecutors Ask for Months to Decide on Retrial

The Manhattan district attorney’s office has six staff members scouring the country for witnesses as it decides whether to retry a man convicted in the killing of Etan Patz, a 6-year-old whose 1979 abduction reshaped American childhoods.

The man, Pedro Hernandez, was found guilty in 2017 of kidnapping and murdering Etan, but an appeals court overturned that judgment in July. Now, three investigators, an analyst and two senior homicide prosecutors have been tracking down 52 witnesses from the 2017 trial, many of whom never imagined that the authorities would need them again, a prosecutor said in court Tuesday.

The prosecutor, Matthew Colangelo, said that his office was enlisting the help of law enforcement agencies across the country to locate people who may have moved from New York. The nationwide effort is aimed at determining the feasibility of a new trial, he said.

Some witnesses may no longer be alive, Mr. Colangelo told Judge Colleen McMahon of Federal District Court in Manhattan. Even if most are found, he said, mounting a new trial of Mr. Hernandez — his third — would be daunting given “the age of the case, the lack of continuity.” Three of four prosecutors who handled the earlier trials have left the district attorney’s office.

On Tuesday, Mr. Colangelo told Judge McMahon that prosecutors would need 90 days to decide if they could retry Mr. Hernandez.

But Mr. Hernandez’s lawyers say prosecutors are dawdling as their client sits in prison. One of Mr. Hernandez’s lawyers, Edward B. Diskant, asked in court that the judge set a 30-day deadline for a decision.

“If the answer is no,” Mr. Diskant told the judge, “Mr. Hernandez needs to be released.”

The conviction of Mr. Hernandez, a SoHo bodega worker, seemed to resolve one of Manhattan’s longest-running mysteries — the abduction and killing of a boy whose image appeared on countless milk cartons and whose name became synonymous with the dread that many parents felt in allowing children to navigate city streets alone.

Prosecutors hope the Supreme Court may make the retrial problem moot. They are planning to ask the court to review the Second Circuit Court of Appeals’s decision that the trial judge had improperly instructed jurors, nullifying the conviction.

In 2017, jurors had asked that judge about confessions by Mr. Hernandez, including one he had offered before being read his Miranda rights, which say that a suspect can remain silent and have the advice of a lawyer and that whatever they say can be used in court.

While deliberating, they asked that judge to explain whether, if the jury found that Hernandez’s confession before the warning was not voluntary, it would have to disregard the later confessions. The judge replied: “The answer is no.”

The circuit panel wrote that response had “contradicted clearly established federal law” and directed that Mr. Hernandez be released or a new trial be held within a “reasonable period.” They sent the case back to Judge McMahon, who had considered earlier arguments in the case.

On Tuesday Judge McMahon expressed doubt about whether the Supreme Court would take up the case. But Mr. Colangelo replied that the district attorney’s office thought there was “a fair chance.” He said that prosecutors planned to submit their request soon and would know by January.

The case in which Mr. Hernandez was convicted transfixed the nation.

In 1979, Etan left his home in SoHo to walk alone for the first time to a school bus stop two blocks away. He never made it there, and no trace of him was found. Thousands of tips to investigators poured in.

Years later, the authorities focused on Mr. Hernandez, who had a history of mental illness. There was no physical evidence linking him to the crime. Still, prosecutors had a powerful weapon: a videotaped confession by Mr. Hernandez that he had abducted and killed Etan.

Mr. Hernandez’s initial confession was made after more than six hours of interrogation, but before he was read his Miranda rights. Soon afterward, he was told of those rights and a detective asked him to repeat his statements. The videotaped confession quickly followed.

The first prosecution of Mr. Hernandez, in 2015, ended with a mistrial as a single juror cited doubts about the evidence. A retrial almost two years later in front of the same judge, Maxwell Wiley, led to the conviction overturned this year.