Defense attorneys will be in court this morning, arguing that the verdict against Michelle Lodzinski should be dismissed because of the conduct of a juror and a lack of evidence. Watch video
NEW BRUNSWICK--It was a verdict in a notorious cold case that came despite any forensic evidence linking the disappearance and death of a 5-year-old boy to his mother.
The foreman of the jury was replaced after ignoring a judge's instructions and doing his own research on-line into the credibility of a key prosecution witness.
Now, attorneys for Michelle Lodzinski--convicted in May of killing her son, Timothy Wiltsey, nearly 25 years ago, head to court this morning seeking either a new trial, or to have the guilty verdict thrown out with an acquittal.
In filings before Superior Court Judge Dennis Nieves in Middlesex County, Lodzinski's lawyers said there simply was not sufficient evidence put before the jury to enable them to find beyond a reasonable doubt that Lodzinski purposely or knowingly caused the death of her son.
"The jury was left to speculate, and speculate they did," said attorney Gerald Krovatin in a court brief.
At the same time, Krovatin argued that the jury itself had been tainted after it was learned that the foreman had been doing his own research on the handling of evidence, which the attorny said should have led to an immediate mistrial.
Prosecutors, in their own filings, said the court should uphold the verdict, citing Lodzinski's conflicting statements to police in the wake of the disappearance of her son, combined with her "indifferent, stoic behavior," and the recovery of Timmy's remains near a blanket that witnesses said had come from her home.
They said her claim that the jury's verdict was against the weight of the evidence was without merit.
"It was for the jury to determine whether there was ample credible evidence that defendant was guilty of murder," stated Deputy First Assistant Prosecutor Christie Bevacqua, in the filing.
Lodzinski, 48, who did not testify during her trial, was convicted by a jury of seven men and five women after eight weeks of testimony from 68 witnesses, including retired police officers who had been involved in the case, former neighbors and boyfriends, and an Arizona ex-con who testified that a former cellmate told him he had killed a young boy at an event in New Jersey around the time Timothy was said to have disappeared.
The trial came decades after Timothy was reported missing by his mother in May 1991, when Lodzinski--a former South Amboy resident--said she turned her back to get a soda while the pair were attending a carnival in neighboring Sayreville. A search of the carnival grounds turned up nothing.
His disappearance made national headlines as volunteers continued to look for the small boy, whose face was later one of the first to appear on a milk carton to raise awareness about missing children. Nearly a year later, his skeletal remains were discovered by chance in a marsh behind the Raritan Center in Edison--where Lodzinski had once worked.
A cause of death was never established because of the deterioration of the the few bones found.
With no forensic evidence, traces of DNA or eyewitnesses, the case was left in limbo for decades, despite several different stories by Lodzniski about what had happened the day of the carnival, her behavior in the days and months after her son vanished, and a belief by detectives that she had committed murder.
But the Middlesex County prosecutor's office reopened the case after detectives began re-interviewing witnesses and showed a blue-and-white blanket found near Timothy's body to Lodzinski's niece, who often would baby-sit the boy. They said she burst into tears when she saw it.
In August 2014, by then living in Florida with two teenage sons born after Timothy's death, Lodzinski was arrested at her home in Port St. Lucie--on the day of Timmy's birthday--and charged in his death.
In her summations to the jury, Bevacqua returned again and again to the blanket.
"He was taken out of the world by the very person who brought him into it--his mother," she said. "Then she did something only a mother would do--she left her child with a blanket. Only this blanket did not cover Timmy's remains--it uncovered his murderer."
In his filing to reverse the verdict, or have the judge order a new trial, Krovatin said the state left the jury to speculate about the essential elements of the crime and "permitted the jury to convict Lodzinski based on pure speculation."
He added that the jury foreman violated his oath and the instructions of the judge not to do any outside research, and then shared his findings with all 11 of the other jurors.
At issue was the testimony of a retired FBI agent who claimed it was not routine protocol in the early 1990s to photograph crime scenes. After an internet search suggested otherwise, the foreman went to the other jurors with the information. One of them sent a note to the judge, who ultimately removed the foreman from the case.
An alternate was seated and the jury was instructed to start their deliberations anew. About four hours later the next day, they announced they had reached a verdict.
Krovatin said a mistrial should have been declared, and that it was clear that the juror could not have gone through the deliberations from the start in such a short period of time.
But prosecutors argued that the reconstituted jury "engaged in intense but civil discussion before reaching a verdict, demonstrating that the jury, indeed, deliberated anew and engaged earnestly in the deliberative process." They called for the appeal to be dismissed.
Lodzinski, who was originally scheduled to be sentenced today, is facing life in prison.
Ted Sherman may be reached at tsherman@njadvancemedia.com. Follow him on Twitter @TedShermanSL. Facebook: @TedSherman.reporter. Find NJ.com on Facebook.