When the attorney for Michelle Lodzinski, the former South Amboy mother charged with killing her 5-year-old son, demanded that prosecutors turn over any physical evidence linking her to the alleged crime, the lead prosecutor on the case admitted there wasn't any.
NEW BRUNSWICK -- At a contentious court hearing Wednesday morning, the attorney for Michelle Lodzinski, the former South Amboy mother indicted on charges she murdered her 5-year-old son in 1991, demanded that prosecutors turn over any physical evidence they had linking his client to the death.
The lead prosecutor on the case, however, unapologetically said there wasn't any.
"We cannot create what we don't have, judge," Deputy First Assistant Prosecutor Christie Bevacqua told Superior Court Judge Dennis Nieves in a tense 90-minute hearing in New Brunswick.
"We know Timothy Wiltsey is dead, his remains were found four-tenths of a mile from where his mother used to work, his blanket was found close to his remains, and the defendant is the last person to see him alive," Bevacqua said. "She gave conflicting stories as to her son's disappearance and death."
Lodzinski, 47, is accused of killing him or causing bodily harm that led to his death on May 25, 1991, after she reported him missing from a carnival in Sayreville, the prosector said.
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"We are here because the evidence we presented to the grand jury led to one conclusion, and that was Michelle Lodzinski murdered her son," Bevacqua said.
Lodzinski, arrested in Florida last year after more than two decades of intensive, but on-and-off investigation, has been held in the Middlesex County Jail in lieu of $2 million bail. Court papers filed ahead of the hearing provide the clearest portrait yet of the state's evidence against Lodzinski, whom authorities have long identified as the prime suspect in one of New Jersey's more notorious cold cases.
Timmy Wiltsey, 5, seen in a picture taken at his school. He disappeared in 1991. His mother, Michelle Lodzinski, was charged with his murder in 2014. Nieves called the hearing to allow Lodzinski's pro bono attorney, Gerald Krovatin, to argue the court should dismiss the indictment against his client -- a routine request made in most criminal trials.
But this case is "different than the average case," Krovatin said, because neither the prosecutor nor the medical examiner could determine how Timmy died, or even prove that he was murdered. The forensic examination of the boy's bones -- found in April 1992 in a creek in a remote section of Raritan Center, a sprawling industrial park in Edison -- revealed "absolutely no evidence of trauma."
"The defendant should not be compelled to stand trial on the state's theory of the crime. Ms. Lodzinski cannot prepare a defense based on the state's theory," which is "illogical and irrational" based on the lack of evidence, Krovatin said.
In documents filed in advance of the hearing, Krovatin's contends the prosecutor's office over-reached in its presentation to the grand jury by suggesting Lodzinski killed her son because she gave police varying accounts of his alleged abduction from the carnival. Krovatin said prosecutors also cobbled together disparate facts about Lodzinski's life, such as her financial struggles and apparent lack of emotion over her son's disappearance, to paint a damning portrait of the woman, then a 23-year-old single mother.
RELATED: Read the response by the prosecutor's office
The indictment is "palpably deficient," a phrase used by the courts in determining when an indictment may be dismissed.
"What happened here from day one was the state decided Michele Lodzinski was responsible for the death of her son, and from day one forward, they tried to put together a case against her," Krovatin said. "They did not look at anyone else."
Lodzinski, wearing a baggy green sweatshirt, sat beside her attorney during the hearing, her hands and feet shackled, her eyes facing downward.
Krovatin also attacked the prosecutor's key piece of evidence: a blue and white blanket found in the vicinity of the boy's body. Prosecutors said in court papers that Lodzinski's niece and Timmy's frequent babysitter, Jennifer Blair, burst into tears when police showed the blanket to her in 2011, saying it belonged to him. Lodzinski, the prosecutor said, never acknowledged Timmy had a blanket with him the day of his disappearance.
The attorney disputed the contention that Blair was a frequent babysitter and noted that six other relatives or close friends said they could not identify the blanket as belonging to Timmy.
"Both of you are making some great arguments," Nieves said, adding the questions they raised are usually left to a jury to decide. A ruling on the motion is expected late Wednesday or Thursday morning.
The hearing started with Nieves asking whether the disclosure of an FBI file into the boy's disappearance by Lodzinski's brother Michael last week posed any problems for the trial going forward.
"What's that all about?" Nieves said, appearing surprised and concerned.
Attorneys on both sides said the file's release would not be an impediment.
"He's assured me he will not be making any additional disclosures. If he does, I may have to come before your honor to seek relief," Krovatin said.
Lodzinski faces life in prison if convicted of the murder charge. The mother of two sons born after Timmy's death, she was living in Port St. Lucie, Fla., and working as a paralegal when authorities arrested her on Aug. 6 of last year.
Susan K. Livio may be reached at slivio@njadvancemedia.com. Follow her on Twitter @SusanKLivio. Find NJ.com Politics on Facebook