Manhattan prosecutors said they will seek U.S. Supreme Court review to reinstate the murder conviction of Pedro Hernandez after a federal appeals court in July overturned his 2017 verdict in the 1979 disappearance of 6-year-old Etan Patz.
In a court filing Sunday, the Manhattan District Attorney’s office asked the U.S. Court of Appeals for the Second Circuit to pause enforcement of its decision — including an order that Hernandez be freed unless retried within a “reasonable period” — to allow prosecutors time to file a petition to the high court by an Oct. 20 deadline. Prosecutor Stephen Kress told the appeals court the ruling raises "substantial legal questions" and that the DA’s office is "committed to seek Supreme Court review."
The 2nd Circuit concluded that the state trial judge erred in answering a jury question during Hernandez’s 2017 trial in a manner that contradicted clearly established federal law, an error the panel said was not harmless. Hernandez, who is 64, was serving a sentence of 25 years to life after being convicted of kidnapping and murder in a retrial following a hung jury in 2015.
The appellate decision turned on jurors’ deliberations about several videotaped confessions Hernandez made to detectives in 2012 after he was identified by a tip. During the 2017 trial, jurors sent a note to Manhattan Supreme Court Justice Maxwell Wiley asking whether they should disregard later videotaped confessions if they found an earlier admission, made before Hernandez was read his Miranda rights, was not voluntary. According to the appeals court, Judge Wiley replied simply, "without further explanation, that ‘the answer is, no.'" The panel said that terse response "unquestionably impacted the verdict."
Hernandez’s defense has long argued that the confessions resulted from delusions tied to mental illness and that jurors should have been permitted to assess the later statements independently. The child’s body was never recovered, and prosecutors have acknowledged there was no physical evidence tying Hernandez to Etan Patz’s disappearance.
Etan Patz vanished from a SoHo street on May 25, 1979, the first day his parents allowed him to walk alone to his school bus stop. The case became emblematic in the missing-children era of the late 20th century; Patz was one of the first children to appear on milk cartons, and his disappearance helped spur national awareness and policy changes around missing children.
Hernandez did not become a suspect until 2012, when police received a tip that he had confessed to killing a child at a prayer group. In videotaped statements, Hernandez said he strangled a boy until he was limp and that he had felt compelled to tell someone. He was arrested and tried in 2015; that trial ended in a hung jury. He was convicted in a 2017 retrial and sentenced to 25 years to life.
After the 2nd Circuit’s July ruling, Hernandez's legal team argued that the trial court’s instructions improperly influenced jurors and that the constitutional error required reversal. The appeals panel agreed, finding that the state court’s handling of the jury question conflicted with federal law and that the error was not harmless beyond a reasonable doubt.
In requesting a stay of the appeals court’s mandate, prosecutors said a Supreme Court petition could raise significant questions about the proper standard for evaluating the effect of a state court’s jury instructions on a criminal verdict and whether the error the 2nd Circuit identified warrants a new trial. If the Second Circuit grants the prosecutors’ motion, the retrial ordered by the appeals court could be delayed while the Supreme Court decides whether to take the case.
The case has drawn intense public attention since Patz’s disappearance, and lawyers on both sides have emphasized the high stakes. Prosecutors say vindicating the conviction is important to the Patz family and to the public interest. Defense attorneys have focused on procedural and constitutional protections, including the voluntariness of pre-Miranda statements and the proper role of the jury in weighing contested admissions.
If the Supreme Court declines to hear the case, the 2nd Circuit’s order would likely return the matter to the lower federal court to determine the timing and conditions for retrial, or to oversee Hernandez’s release if retrial does not take place within a reasonable period. If the high court agrees to review the matter, it could address the legal standards that underpinned the appeals court’s decision and whether those standards were applied correctly in Hernandez’s case.
The Manhattan DA’s filing asks the Second Circuit to hold off enforcing its mandate until after the Supreme Court filing date to avoid rendering any stay ineffective. The DA’s office did not provide a timetable for when it would file the petition but confirmed it intended to meet the Oct. 20 deadline referenced in its filing.
The Patz family has remained publicly engaged with developments in the case for decades. Legal experts say the Supreme Court’s decision whether to hear the case could hinge on whether the justices view the dispute as presenting an unresolved federal question of broad importance or primarily an application of settled law to contested facts. If the Supreme Court takes the case, the litigation could extend months or years beyond the appeals court’s July ruling.
For now, Hernandez remains affected by the 2nd Circuit’s order: he faces the possibility of being freed if no retrial occurs within a period the court deems reasonable, but prosecutors have formally signaled their intent to seek the nation’s highest court's intervention. The outcome of the DA’s bid to the Supreme Court will determine whether the conviction is reinstated through appellate reversal or remains vacated as the case proceeds through further federal proceedings.