Judge will consider defense requests to order a new trial over juror misconduct claims, or throw out the verdict that convicted the former South Amboy woman in the death of her 5-year-old son more than 25 years ago. Watch video
NEW BRUNSWICK--Did Michelle Lodzinski receive a fair trial?
That was the question a judge wrestled with on Tuesday, as defense attorneys and prosecutors argued over the actions of the one-time foreman in the high-profile murder case, and whether his conduct during deliberations mandated a new trial of the now 48-year-old single mother convicted in May in the death of her kindergarten-age son more than 25 years ago.
"Both sides have valid arguments," admitted Superior Court Judge Dennis Nieves in Middlesex County, who said he wanted time to consider the appeal over the verdict.
Nieves hoped to have a decision within 30 days.
It was the latest chapter in a long-running saga that began in May 1991 when 5-year-old Timothy Wiltsey was reported missing by Lodzinski after she said she had turned her back for a moment to get a soda while the pair were attending a carnival in Sayreville. A search of the carnival grounds turned up nothing.
Lodzinski--then a South Amboy resident--later changed her story several times, claiming her son had been abducted. He remained missing for nearly a year, before his skeletal remains were found in a marshy area behind the Raritan Center in Edison, where his mother had once worked. However, prosecutors were never able to establish a cause of death or link Timmy's disappearance to his mother until detectives began re-interviewing witnesses more than two decades later and showed a blanket found near the remains that a relative claimed had been in the Lodzinski home.
In a hearing on Tuesday, Lodzinski's attorney, Gerald Krovatin, told the judge that the jury foreman's actions left him with no choice but to declare a mistrial.
That juror had done an internet search on FBI investigatory protocols on his own, in violation of the judge's instructions, after a retired special agent who had found the blue-and-white baby blanket central to the prosecutor's case testified that he never photographed the crime scene, claiming it was not routinely done in the 1990s. The foreman, who discovered otherwise, related that information to other jurors and one sent a note to the judge to complain.
FBI agent had neighbors steal trash
"She ratted him out," remarked Nieves. "There are instructions that are supposed to be followed."
Nieves at the time replaced the foreman with an alternate, and the jury came back the next day after four more hours of deliberation with a guilty verdict. But Krovatin said the court should have declared an immediate mistrial.
The attorney said the juror violated the judge's instructions and violated his oath by bringing the information into the jury room, affecting deliberations.
But Middlesex County Deputy First Assistant Prosecutor Christie Bevacqua said the juror was not removed for misconduct--only for failing to heed the instructions of the judge.
"He was dishonest and did not follow the court's instructions," she told Nieves. "There's absolutely no basis to grant a new trial."
The prosecutor's office also rejected defense claims that the verdict was at odds with the evidence.
Krovatin said the case against Lodzinski was entirely circumstantial, with no cause of death, no history of abuse, no evidence linking the blanket to the Lodzinski home, and no eyewitnesses. The attorney said the entire case hinged on the emotional impact of the death of a 5-year-old boy.
"The jury could do no more than speculate in returning its decision," he said.
Middlesex County Assistant Prosecutor Scott LaMountain said the defense motion for dismissal of the charges had already been rejected twice by the court.
"There's nothing new here. It's just a rehashing of the same arguments," he argued.
Nieves gave both sides a week to file any further papers on the matter and said he would look toward making a ruling within 30 days.
"I'm not going to rush anything," said the judge.
Ted Sherman may be reached at tsherman@njadvancemedia.com. Follow him on Twitter @TedShermanSL. Facebook: @TedSherman.reporter. Find NJ.com on Facebook.