The judge in the Etan Patz murder trial on Tuesday denied a request from prosecutors to allow jurors in next year’s retrial of Pedro Hernandez to walk around the SoHo neighborhood where 6-year-old Etan disappeared on his way to school in 1979.
Manhattan Supreme Court Justice Maxwell Wiley said that, even under the watchful eye of the NYPD, there was too much of a risk that jurors could be exposed to something that would improperly prejudice them during a visit to the SoHo neighborhood.
“I don’t know that the NYPD has control over everything out there,” said Wiley.
The request had been opposed by defense lawyers for Hernandez, 54, of Maple Shade, New Jersey, who is charged on the basis of his 2012 confession that while working at a SoHo bodega as a teenager in 1979 he strangled Etan in the basement.
The defense contends that Hernandez fantasized the confession due to mental problems, and has tried to cast blame on Jose Ramos, a convicted pedophile who allegedly made jailhouse confessions and was linked to a woman who walked Etan home from school.
In May, jurors deadlocked 11-1 for guilty at the first Hernandez trial. His retrial is scheduled to begin on Feb. 22.
In a strategic shift, defense lawyer Harvey Fishbein told Wiley on Tuesday that at the retrial, in addition to Ramos, he wants to present inculpatory evidence about Othniel Miller, a neighborhood handyman with a basement workshop who Etan was friendly with in 1979.
Etan, according to testimony at the first trial, visited Miller’s workshop the night before he disappeared. In 2012, just before Hernandez surfaced as a suspect, the NYPD and FBI dug up the basement Miller used, and sources said he had ties to Ramos.
Prosecutor Joel Seidemann told Wiley he shouldn’t allow the defense to throw a third suspect into the mix, because Miller had an alibi for the time of Etan’s disappearance and there was no evidence linking him to the disappearance.
But Fishbein said the alibi was insubstantial, and authorities shouldn’t be allowed to dismiss prior suspicions they had about both Ramos and Miller just because they wanted to convict Hernandez.
“The district attorney, FBI and NYPD believed there was probable cause in 2012,” he told the judge. “If they believed there was probable cause to suspect Miller, the jury should hear the evidence.”
Wiley said he would rule on the proposed Miller evidence on Thursday.