They may have been playing to an audience of one.
Lawyers for Michelle Lodzinski, convicted of murder in the death of her young son decades after his disappearance — and the prosecutors who sent her to prison — appeared before the state Supreme Court on Monday in an unusual re-arguing of her long-running appeal in the high-profile homicide case.
The court in May found itself deadlocked when it issued a controversial 3-3 decision that allowed Lodzinski’s conviction to stand. But in a stunning move, the justices agreed this month to reconsider the case with the temporary addition of the senior-most member of the state Appellate Division to serve as a seventh “tie-breaker.”
And with six of the justices sharply divided over whether to overturn or let stand Lodzinski’s guilty verdict — after Chief Justice Stuart Rabner recused himself — the arguments by both the Middlesex County Prosecutor’s Office and Lodzinski’s defense team likely hinged on Judge Jose L. Fuentes, a presiding appellate court judge added to hear the arguments.
In a hearing that went on for nearly two hours in Trenton on Monday afternoon, it appeared that none of the six justices had moved from their hard-held positions that were laid out in May over the conviction of Lodzinski, now 53, who was found guilty in 2016 of murder in the death of her son, 5-year-old Timothy Wiltsey.
Fuentes, however, asked questions that suggested he was more than skeptical of the prosecution case — both as to the motive suggested by the state that Timmy had become too much for Lodzinski, a single mother with limited financial resources, as well as to when the boy even died.
In his questioning, Fuentes asked whether anybody testified that Lodzinski wished she had not had the child. “That he was a burden to her?” he said. “That I am at my wits end?”
In his arguments before the court, defense lawyer Gerald Krovatin of Krovatin Nau in Newark, who handled the appeal with David W. Fassett of Arseneault & Fassett in Chatham, reiterated that there was insufficient evidence to convict Lodzinski in a case that lay dormant for decades before her arrest.
“No reasonable jury could draw inferences from the evidence submitted that she murdered her child,” Krovatin told the justices. “There was no evidence that Michele was in any frame of mind to harm him.”
Lodzinski was not in the courtroom for the arguments.
Middlesex County Assistant Prosecutor Joie Piderit, handling the appeal for the state, said the evidence proved Lodzinski had “purposely and knowingly” murdered her son. “The jury had no problem finding guilt in this case,” she said.
Lodzinski had first reported Timmy’s disappearance on Memorial Day weekend in 1991, claiming he had vanished from a carnival in Sayreville. A nationwide search was launched, with the boy’s face appearing on the back of milk cartons and friends and neighbors joining in a search.
His skeletal remains were discovered months later in a wooded area in April 1992, not far from where one of his Teenage Mutant Ninja Turtle sneakers was found along a muddy creek in a remote section of Raritan Center, where Lodzinski had once worked.
A cause of death was never established and no one was charged for years. But Lodzinski’s erratic behavior in the weeks after he vanished, and a constant stream of changing stories about what happened, who who might have taken him, had long made her a suspect.
In the Middlesex County Prosecutor’s Office, though, the investigation had been all but shut down and listed as an unsolved “cold case” file.
Detectives began taking another look in 2011, however, based on a faded blue-and-white child’s blanket discovered near the creek where the boy’s remains had been discovered. They said it had come from Lodzinski’s South Amboy apartment. The frayed fabric would later become a centerpiece of their case.
In August 2014, Lodzinski was arrested in Florida where she was by then living, and charged with murder and was was subsequently convicted.
Justice Barry T. Albin, who had strongly dissented in the court’s May decision, said the “sustaining of the conviction in this case on such a paucity of evidence has no parallel in this state.” Arguing that the court could not “rationally justify the murder conviction of Michelle Lodzinski” with a verdict resting on speculation, he was joined in his dissent by Justices Jaynee LaVecchia and Fabiana Pierre-Louis.
Rabner, the chief justice, had recused himself for reasons he has never disclosed — although it was no secret that he had been with the U.S. Attorney’s office at the time of the boy’s disappearance when federal authorities were briefly involved in the investigation. But the split among the other six justices meant an earlier appellate ruling rejecting Lodzinski’s appeal would hold.
Yet weeks ago, the Supreme Court agreed to a rarely granted reconsideration request by Krovatin to re-hear the case, with the addition of Fuentes from the Appellate Division to serve as a tie-breaker.
In the court’s ruling in October, Justices Anne M. Patterson, Faustino J. Fernandez-Vina and Lee A. Solomon, who upheld the conviction, were outspoken in their opposition to take a new look at the case. They wrote that Lodzinski had achieved a remedy “that appears to be unprecedented,” viewing the decision as unauthorized by established court rules.
During the hearing on Monday, Justices Patterson, Fernandez-Vina and Solomon gave little indication that they had changed their thinking on the case in any way. In questioning Krovatin, Patterson noted that Timmy’s skull and two leg bones were discovered only four-tenths of a mile from Lodzinski’s former workplace in the Raritan Center and asked why it was not reasonable for a jury to conclude that she was responsible.
Fernandez-Vina also pointed out in his questioning that Lodzinski did not initially tell police she had worked at Raritan Center and asked why she tried to divert attention away from where the body was discovered.
Solomon appeared to reject the defense arguments out of hand. “Twelve people concluded beyond a reasonable doubt that she murdered her child,” the justice said. “Now you want us to look at that and say ‘no, no, no,’ that’s not reasonable?”
Much of the discussion centered around Lodzinski’s alleged motive. Piderit, in her arguments before the court, said until the weekend of Timmy’s disappearance, his mother had attended to his needs. But she said the case before the jury showed that Lodzinski’s job had been on the line, school was ending, she had lost her child care and that “everything was falling apart” for the young mother.
“So she got rid of Timmy,” she said.
Albin said the evidence presented by the prosecutors was used to draw a portrait of a stereotypical single struggling mother.
“There’s nothing else there,” he said. “That’s evidence of motive to murder a child?”
The prosecutor said Lodzinski’s own misstatements, the blanket and her motivation all weaved together to point to her guilt.
Krovatin, noting that there was no forensic evidence — no DNA — to show the blanket had ever been in Lodzinski’s apartment, said there was never any evidence presented to allow a jury to reach the conclusion that Timmy was murdered by his mother.
The justices set no schedule for when an opinion in the case might be delivered.
Lodzinski is currently serving a 30-year prison sentence at the Edna Mahan Correctional Facility in Hunterdon County, with no chance of parole.
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