Judge Dennis Nieves said the state had established a circumstantial case in the 24-year-old murder of Timothy Wiltsey
NEW BRUNSWICK -- Saying the state provided enough circumstantial evidence tying Michelle Lodzinski to the murder of her 5-year-old son, a judge ruled late Wednesday the 24-year-old case will proceed to trial.
Superior Court Judge Dennis Nieves in New Brunswick wrote he was reluctant to dismiss any indictment "except in the most egregious circumstances," and that was not the case here.
Lodzinski's attorney, Gerald Krovatin, argued in the morning in favor of a dismissal, saying prosecutors "irrationally and illogically" pursued a theory of the crime without a "scintilla" of corroborating physical evidence.
Neither the prosecutor nor the medical examiner could determine how Lodzinski's son, Timothy Wiltsey, died, though the death was declared a homicide. The forensic examination of the boy's bones -- found in April 1992 in a creek in a remote section of Raritan Center in Edison, 11 months after his mother reported him missing -- revealed "absolutely no evidence of trauma."
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"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.
Nieves disagreed.
"This creates enough evidence to bring Ms. Lodzinski's charge to the grand jury, which resulted in the indictment," he wrote in the 15-page opinion.
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. "While the credibility and the weight of the evidence will ultimately be up to the jury, a ... case under circumstantial evidence has been established, and the defense has not met its burden to dismiss the indictment."
The judge noted that Lodzinski, now 47, repeatedly changed her story about her son's alleged abduction from a Sayreville carnival. In her varying accounts, Lodzinski said Timmy disappeared while she went to buy a soda, that he was taken by two men, that he was snatched by two men and a woman and that a woman in a red car abducted him at knifepoint.
"During the course of the investigation, Ms. Lodzinski admitted she changed her statement as the police 'wanted to hear it,'" Nieves wrote. "Accordingly, Ms. Lodzinski's active omission and hindrances to the investigation through her statements may reasonably establish circumstantial evidence of her guilt."
Beyond her shifting accounts, Lodzinski did not tell investigators that she once worked four-tenths of a mile from the spot where Timothy's skeletal remains were found, Nieves said, calling it another apparent attempt to throw investigators off track.
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The judge appeared to give credence to the state's key piece of evidence: a blue and white blanket discovered near Timmy's remains. Lodzinski's niece, Jennifer Blair, identified the blanket as Timmy's when investigators brought it to her in 2011, the year the Middlesex County Prosecutor' Office ordered a new look at the infamous cold case.
Krovatin noted in his motion to dismiss that six other relatives or friends could not identify the blanket, but Nieves did not question the identification by Blair, who occasionally babysat Timmy when she was a young teenager. The judge called it improbable that the boy would have a blanket with him on a day when the temperature reached 90 degrees and that the blanket must have come from the Lodzinski home.
In all her interviews with police, Lodzinski never said Timmy was carrying a blanket when he disappeared.
Nieves questioned whether Lodzinski and her son were even at the carnival the night of May 25, 1991, when Timmy's abduction was reported, because no witness could recall seeing the child.
Krovatin and a spokesman for the prosecutor's office declined to comment on the judge's ruling.
The morning hearing provided a window into many of the issues expected to come up at trial, now scheduled for January.
Deputy First Assistant Prosecutor Christie Bevacqua acknowledged during the 90-minute hearing the state had no physical evidence tying Lodzinski to the crime, but she said the totality of the circumstantial evidence was enough to prove Lodzinski killed Timmy, a slight boy with brown hair and brown eyes.
"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. ... We are here because the evidence we presented to the grand jury led to one conclusion, and that was Michelle Lodzinski murdered her son."
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. Wearing a baggy green sweatshirt, she sat beside her attorney during the hearing, her hands and feet shackled, her eyes facing downward.
She faces life in prison if convicted of the murder count.
Correction: A previous version of this story erroneously said Middlesex County Prosecutor Andrew Carey ordered the investigation into Timothy Wiltsey's death reopened. While Carey has supported the probe, he was not yet prosecutor when the case was revisited.
Susan K. Livio may be reached at slivio@njadvancemedia.com. Follow her on Twitter @SusanKLivio. Find NJ.com Politics on Facebook.