LOWER MANHATTAN — Lawyers for the former SoHo bodega worker convicted last week of killing Etan Patz in 1979 want a hearing to determine whether there was "jury contamination" during the more than three-month retrial — a move that could lead to a third trial.
Harvey Fishbein, a lawyer for Pedro Hernandez, said he's seeking the hearing after Newsday and DNAinfo New York reported that a juror said court officers informed the jury that previous jurors from the first trial — which ended in a hung jury — were attending the retrial.
During the retrial, lawyers were not allowed to mention the first trial, and could only reference it as a "previous proceeding."
"Some of the jurors could have known that there was a first trial," Fishbein told DNAinfo. "But we were not allowed to mention it during the trial — if the jurors were told that jurors from the first trial were there, that's contamination"
After Hernandez, 56, was convicted of strangling 6-year-old Etan in the basement of a SoHo bodega, jurors from the the first trial who were convinced of Hernandez's guilt — several of whom were a daily presence at the retrial, sitting next to Etan's father, Stan — spoke to reporters about their emotional attachment to the case and the Patz family.
In the midst of a crush of reporters outside Manhattan Supreme Court, one of the retrial jurors, Michael Castellon, hugged a former juror, Jennifer O'Connor. Several of the former jurors have been outspoken advocates for Hernandez's conviction since the first trial ended in a mistrial in 2015, when one juror could not be persuaded to vote guilty.
When a Newsday reporter later asked Castellon how he knew O'Connor, he said court officers had mentioned that jurors from the first trial were attending the retrial. After offering up the information, Castellon backtracked and asked what he said about the court officer not be used, then he walked off.
O'Connor, and other fellow jurors, went on to say that their message to the retrial jurors was "we love you."
Right after the conviction, Castellon, along with other jurors, spoke to reporters in a small press conference set up next to the courtroom, explaining their decision. Castellon said he thought they came to a "very clear, logical result."
Fishbein said that "Castellon was clearly outspoken in favor of the guilty verdict — if he had this information about previous jurors showing up everyday, it could only given him more confidence in his decision."
"Castellon shouldn't have had that information," Fishbein added. "This was a jury that was divided, there must have been some strong outspoken people that swayed them all to a guilty verdict."
It was unclear whether other jurors also knew about the previous panel. Fishbein said that even if the juror refuse to speak to him or his investigators, he will use the Newsday and DNAinfo report as basis for his request for a hearing.
The other jurors on the case have declined to comment to DNAinfo or have not returned calls.
Fishbein said he's currently in the midst of formulating the motion for the jury contamination hearing, which Judge Maxwell Wiley, who presided over the case, could either grant or deny.
Fishbein is also working on his appeal of the case, which could include this jury contamination claim, as well as other issues.
Lawyers for Hernandez, a father of three from New Jersey with no prior criminal record, argued that their client suffers from delusions and a low I.Q., and that his confessions were coerced by police.
Etan, who disappeared in 1979 after he was allowed to walk less than two blocks to his Prince Street bus stop by himself for the first time, was never found. He was declared dead in 2001.
Hernandez has been in jail since his 2012 arrest, after a relative contacted police, saying Hernandez had confessed many years earlier to hurting a young boy. Hernandez worked in the bodega that was near Etan's Prince Street school bus stop. In several hours of taped confessions, Hernandez describes strangling the small boy, then placing his limp body in a garbage bag and throwing him on a nearby trash heap.
ProPublica first reported the lawyers' intent to seek a hearing on jury contamination.