The attorney for Michelle Lodzinski asked a judge Friday morning to dismiss the indictment charging her with her 5-year-old son's murder because coming 23 years after Timmy Wiltsey disappeared makes it difficult to defend herself.
NEW BRUNSWICK -- The attorney for Michelle Lodzinski asked a judge Friday morning to dismiss the indictment charging her with her 5-year-old son's murder, saying too much time has passed since Timmy Wiltsey disappeared.
Gerald Krovatin told Superior Court Judge Dennis Nieves that there are witnesses who are no longer available that could have helped his client defend herself.
Lodzinski, 47, was indicted in August 2014 for the murder of her son in 1991.
Krovatin outlined several witnesses, including three security guards who were on duty near the area of Raritan Center in Edison, where Wiltsey's remains were found in April 1992, 11 months after Lodzinski reported him missing from a carnival in Sayreville on May 25, 1991.
"Two are dead and one has had a stroke," Krovatin said, explaining the guards could have come in and testified they did not see a car resembling Lodzinski's come in near the area where Wiltsey's body was found 11 months later.
"There was no reason to delay this investigation for 23 years," Krovatin argued.
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Middlesex County Assistant Prosecutor Christie Bevacqua told the judge there "is no statute of limitations for murder," in New Jersey and that state law is clear.
"He has to show that the state made a deliberate attempt to gain the advantage," by not charging Lodzinski earlier," Bevacqua said. "We have no advantage. We're probably more prejudiced than the defendant."
The judge reserved decision on the motion as he did on the motion he heard over the past three days of hearings whether to allow the prosecution to present more than 19 statements from Lodzinski made to various law enforcement agencies and others to jurors.
Nieves also has to decide whether to allow jurors to visit Kennedy Park in Sayreville where the carnival was held and the site in Raritan Center where the child's remains were found.
Lodzinski initially told police Timmy was with her at the carnival on May 25, 1991 when she went to get a soda but was gone when she turned around after paying for it at a concession stand, according to testimony during the hearings. She changed her story several times over the next month, telling police a woman and two men took the child.
In the months and years following Timmy's death, Lodzinski's behavior was puzzling and bizarre, authorities said. In addition to changing the story she gave law enforcement several times, she was later arrested twice--once for allegedly faking her own kidnapping and again in 1997 for stealing from an employer.
The pretrial motions are scheduled to resume Nov. 10 before Judge Nieves with Lodzinski's trial scheduled for Jan. 12, 2016. The trial is expected to last about three months.
Sue Epstein may be reached at sepstein@njadvancemedia.com. Follow her on Twitter @susan_epstein. Find NJ.com on Facebook.