Etan Patz’s Convicted Killer to Get New Trial, Court Says (1)

The Second Circuit on Monday ordered a new trial for a man who in 2017 was found guilty of kidnapping and murdering a 6-year-old New York boy in 1979.

The state trial court “contradicted clearly established federal law” when it allowed the jury in the 2017 trial of Pedro Hernandez to consider a confession that Hernandez made to police before he was Mirandized, Judge Guido Calabresi of the US Court of Appeals for the Second Circuit said in the court’s opinion.

“The court instruction was clearly wrong” and “manifestly prejudicial,” Calabresi said. The panel reversed the US District Court for the Southern District of New York’s decision denying Hernandez’s writ of habeas corpus petition and sent it back to the court to set a timeline for a new trial. The panel ordered Hernandez’s release “unless the State affords him a new trial within a reasonable period as the district court shall set.”

Hernandez was convicted by a jury of abducting and murdering Etan Patz, a child who disappeared from a Manhattan street. At the time, Hernandez—who was 18 years old—worked at a bodega near where Patz was last seen.

Hernandez, who “has an extensive history of mental illness and low IQ,” was detained by police in 2012 and confessed during an interrogation. Immediately after obtaining the confession, detectives read Hernandez a six-question Miranda warning and then instructed him to repeat his confession

Miranda Warning

During trial, the jury sent the judge a note asking to explain whether the jury should disregard the post-Mirandized confessions if it found they weren’t voluntary. The judge responded, without further explanation, “the answer is no.” The jury eventually acquitted Hernandez of intentional murder but convicted him of felony murder and kidnapping. Hernandez is currently serving a sentence of 25 years to life in state prison.

Hernandez, in his writ of habeas corpus with the Southern District of New York, argued the trial court’s jury instruction was inconsistent with the US Supreme Court’s 2004 decision in Missouri v. Seibert, which held unconstitutional the interrogation tactic of obtaining a confession without giving a Miranda warning, then administering the warning and asking the suspect to repeat the confession.

The Second Circuit agreed, saying, “No fair-minded jurist could reach the conclusion that the error was harmless beyond a reasonable doubt.” The state also can’t “meet its burden of proving that there was ‘no reasonable possibility’ that the verdict would have been different had the trial court properly addressed the third jury note,” Calabresi said.

“We are grateful the Court has now given Pedro a chance to get his life back, and I call upon the Manhattan District Attorney’s Office to drop these misguided charges and focus their efforts where they belong: on finding those actually responsible for the disappearance of Etan Patz,” said Edward Diskant of McDermott Will & Emery, who represents Hernandez.

Judges Raymond J. Lohier and Myrna Pérez also sat on the panel.

The Manhattan District Attorney’s office, which represents Clinton Correctional Facility Superintendent Donita McIntosh, said it’s reviewing the decision.

The case is Hernandez v. McIntosh, 2d Cir., No. 24-1816, 7/21/25.