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AP EXPLAINS: What’s next for jury in missing NYC boy case?

Assistant District Attorney Joan Illuzzi-Orbon, center, leaves at the end of the day in the trial of Pedro Hernandez in New York, Tuesday, May 5, 2015, in New York. Jurors deliberating in the murder trial of Hernandez, a man accused of kidnapping and killing 6-year-old Etan Patz in 1979, said they're deadlocked -- for a second time. But a judge is telling them to keep trying for a verdict. (AP Photo/Mary Altaffer)

NEW YORK (AP) — The haunting case of missing first-grader Etan Patz has endured for almost four decades, and deliberations in the long-awaited murder trial stemming from his 1979 disappearance are enduring extraordinarily long, too.

Sixteen days into their discussions, jurors have twice said they can’t reach a unanimous verdict and have been told to keep trying. They are weighing murder and kidnapping charges against Pedro Hernandez, who confessed three years ago to killing 6-year-old Etan in 1979; his lawyers say his confession was imaginary and another suspect is the more likely killer.

A look at the issues as deliberations continue:



The jury has announced twice that it’s deadlocked, most recently on Tuesday. Defense lawyers have sought a mistrial both times, saying jurors shouldn’t be pressed to continue. “This is a tired jury that says it can’t reach a verdict, and we asked the judge to respect that,” attorney Harvey Fishbein said. Manhattan state Supreme Justice Maxwell Wiley has denied the mistrial requests and advised the panel to keep going, while noting that it’s not obligated to reach a verdict. Jurors resumed deliberating for several hours after Tuesday’s impasse and continued all day Wednesday. They’re due back Thursday.



No. Jurors deliberated for 20 days, for example, before acquitting white separatist Randy Weaver and a co-defendant of killing a federal marshal in a 1992 shootout after a siege at Weaver’s cabin in Ruby Ridge, Idaho.

In a notorious fraud case against former Tyco International Ltd. CEO Dennis L. Kozlowski and chief financial officer Mark Swartz, a Manhattan jury was entering its 12th day of deliberations in 2004 when a judge declared a mistrial after one juror reported getting an intimidating letter and phone call. Deliberations in a retrial the next year went another 11 days before the ex-execs were convicted of looting the company of $600 million.

Two juries deadlocked after more than 18 days of debating the murder case against Lyle and Erik Menendez, brothers accused of killing their parents in their mansion in Beverly Hills, California. Ultimately, both brothers were convicted after 20 days of deliberation in a 1996 retrial.

After three former Oakland, California, police officers were accused of beating and framing suspects and falsifying reports, jurors deliberated for 56 days in 2003 before deadlocking on most counts and acquitting on several others. Deliberations in a 2005 retrial spanned more than a month before a jury again deadlocked on most counts and acquitted on others. Prosecutors decided against a third trial.

A federal mob racketeering case against John A. “Junior” Gotti ended in hung juries and mistrials four times, the last after 11 days of deliberation in 2009. After the fourth mistrial, prosecutors dropped the case.

Civil courts have seen some even more epic deliberations. A federal jury deliberated during more than four months in 2004 before finding for a mother and son who sued Long Beach, California, for refusing to let them convert homes into residences for Alzheimer’s disease patients.



It’s up to the judge, who has broad discretion in deciding how to handle a deadlocked jury. But judges have to walk a fine line in balancing the court’s interest in bringing a trial to a conclusion with a potential argument, if there’s a conviction, that prolonging deliberations amounted to forcing a verdict that should be overturned. There’s no hard-and-fast rule for determining that; appeals courts can look at a number of factors, not just the number of times a jury was told to keep trying.



There’s been long debate in the legal community about what are known as Allen instructions, a term that can encompass a range of approaches to encouraging a stymied jury to keep deliberating. The name stems from an 1896 Supreme Court ruling allowing judges to tell jurors to continue discussions and to consider changing their minds. Prosecutors unsuccessfully asked Wiley to take that route Tuesday. Defense lawyers often see such language as coercive, and courts and legal groups have urged caution. Many judges use a modified message, as Wiley has, that includes reminders that the jury isn’t required to reach a verdict.



Prosecutors would decide whether to retry the case, in which jury selection took weeks and testimony more than two months. Prosecutors haven’t specified what they would do, but Manhattan Assistant District Attorney Joan Illuzzi-Orbon told the court Tuesday she “would rather have a second trial than a verdict for a verdict’s sake.”


Associated Press writer Tom Hays contributed to this report.

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