A judge has ordered the 12-person jury in the Etan Patz murder trial back to the deliberation room after the five men and seven women, deliberating for their eleventh day, sent him a note saying they could not agree on whether 54-year-old Pedro Hernandez killed the 6-year-old child in 1979.
Jurors have labored over their deliberations for nearly two weeks, asking for reviews of exhibits and hours of testimony from key witnesses. Before they sent the hung jury note, they had asked the judge for a replay of closing arguments, which would have been a minimum of six hours of readback.
State Supreme Court Justice Maxwell Wiley hadn't decided on whether to grant them the testimony before they sent the deadlock note; he later authorized the readback, which will delay any possible verdict until later in the week.
"I want you to keep going and I'll tell you why," Maxwell told the jurors. He said it's a lengthy process but, "given the nature of this case," "there's a lot to sort through."
The judge said it's not uncommon for it to be difficult for jurors to reach a unanimous verdict and they may feel like it's not possible to agree.
"After further deliberations most jurors can reach a verdict," the judge told the panel.
The defense moved for a mistrial after the jurors sent the deadlocked note, which is common in such cases. Lawyers argue ordering a hung jury back to the deliberation room pressures them to reach a verdict.
"Any charge to them at this point, even sending a note in to them saying, 'Would you like to try harder?' is inherently coercive," said lawyer Alice Fontier. "We believe that a mistrial is warranted, and any further proceedings after that are over the strenuous objections of the defense."
The judge denied the motion and sent the jurors home early. They will begin re-hearing summations Thursday morning, and the review is expected to take all day.
Joan Vollero, a spokeswoman for the Manhattan district attorney's office, said Wednesday's developments that "this is a conscientious and hard-working jury and we have every faith that, under the judge's guidance, they can continue to work together to reach a just verdict."
Jurors heard from 56 witnesses -- just nine of those for the defense -- during the 10-week trial, but a key issue has been statements from the alleged killer himself.
Hernandez confessed to the crime in 2012 in a case that has confounded law enforcement for decades. Etan's body was never found, nor was any trace of clothing or his belongings. The defense says the admissions were the fictional ravings of a mentally ill man with a low IQ.
Hernandez was a teenage stock clerk in the neighborhood at the time Etan disappeared but had never been considered a suspect. His name appears in law enforcement paperwork only one time during their lengthy probe. The Maple Shade, New Jersey, man made the stunning admissions after police received a tip from a relative that he may have been involved in the case.
"I grabbed him by the neck and started choking him," Hernandez told authorities. "I was nervous. My legs were jumping. I wanted to let go, but I just couldn't let go. I felt like something just took over me."
Defense attorney Harvey Fishbein said during closing arguments that Hernandez was "the only witness against himself."
"The stories he told over the years, including in 2012, and since, are the only evidence. Yet he is inconsistent and unreliable," Fishbein told jurors. "We did not hear, nor can they prove, that he's a child killer, that he murdered a child — because there's no evidence to support it."
The trial began in late January, and jurors heard from dozens of witnesses. Members of a prayer circle testified that Hernandez made tearful admissions during a retreat in the summer of 1979 that matched some of what he told authorities on video 33 years later: He gave a child a soda, took him to the store basement and choked him. One said Hernandez also admitted abusing the boy. When talking to police, Hernandez denied molesting Etan.
In closing arguments for the prosecution, Assistant District Attorney Joan Illuzzi-Orbon said Hernandez lured Patz to the basement of the shop because he saw the boy had a dollar. He then choked the child to shut him up after whatever happened in the cellar, she said, and added that the motive was sexual.
Illuzzi-Orbon also argued that Hernandez's first confession -- the one to the prayer group shortly after Patz disappeared -- was the most accurate. He was confessing to God, and he was trying to unburned himself, the prosecutor said.
Neighbors and former acquaintances testified about other admissions from Hernandez.
Mark Pike, Hernandez's former neighbor in Camden, New Jersey, testified that during a 1980 front-porch chat, Hernandez described how a boy in New York threw a ball at him, and "he lost it" and strangled the child.
"I just said, 'Why?'" Pike recalled. Hernandez gave no answer, he said.
About two years later, Hernandez told 16-year-old girlfriend Daisy Rivera he wanted to come clean about "something terrible" — he had strangled a "gringo muchacho," or white guy, who offended him while in New York.
The defense has suggested that another man, a convicted pedophile in jail in Pennsylvania, is the real killer. It called to the stand a former federal prosecutor and FBI agent who worked on the probe into Jose Ramos for years. A former jailhouse informant involved in the investigation testified that Ramos admitted molesting the boy while the men were roommates in prison. Jeffrey Rothschild said Ramos recounted in horrifying detail how he molested Etan and many other boys.
In closing arguments, the defense honed in on Ramos.
"We did find out why Etan disappeared — but it was not because of Pedro Hernandez," Fishbein said. "It was because of Jose Ramos."
Etan's photo was one of the first on milk cartons. The day he went missing, May 25, was later named National Missing Children's Day.