Centurion is thrilled with the NJ Supreme Court’s decision overturning Michelle Lodzinski’s conviction! Centurion entered the case in the Supreme Court as an amicus curiae, or friend of the court, arguing that Ms. Lodzinski was denied basic due process when the Appellate Division refused to not only consider her evidence of innocence, but also refused to consider whether the State’s evidence was discredited or impeached. The precedent set by the arguments made by our Legal Director, Paul Casteliero, will help ensure that other wrongfully convicted men and women in NJ are able to argue that the courts must consider their evidence of innocence as they fight for their rightful freedom. Congratulations to Ms. Lodzinski and her entire team!
Published Dec. 28, 2021
In a decision that may mark the end of a tragic story that has played out for decades, the New Jersey Supreme Court Tuesday overturned the conviction against Michelle Lodzinski — concluding there was not enough evidence for a jury to find her guilty of murder in the death of her 5-year-old son, Timothy Wiltsey, more than 30 years ago.
The court, in a 4-3 decision that followed a long series of appeals, vacated her conviction and entered a judgment of acquittal.
“After reviewing the entirety of the evidence and after giving the state the benefit of all its favorable testimony and all the favorable inferences drawn from that testimony, no reasonable jury could find beyond a reasonable doubt that Lodzinski purposefully or knowingly caused Timothy’s death,” wrote Justice Barry Albin in the majority opinion.
He said “even if the evidence suggested that Timothy did not die by accident, no testimony or evidence was offered to distinguish whether Timothy died by the negligent, reckless, or purposeful or knowing acts of a person, even if that person were Lodzinski.”
The ruling came after the state’s high court found itself deadlocked over Lodzinski’s appeal when it issued a controversial 3-3 decision in May that allowed her 2016 conviction to stand. However, in a rare and unexpected move, the justices agreed in October to reconsider the case.
That tie-breaker was Judge Jose L. Fuentes, a presiding appellate court judge. He joined in the majority Tuesday to dismiss the charges against Lodzinski, who had been serving a 30-year prison sentence without the possibility of parole. A Middlesex County judge late Tuesday ordered her release.
The court in its opinion acknowledged that it was not often that a panel of judges will enter a judgment of acquittal, notwithstanding a jury verdict — particularly in a murder case.
“That is true whether the trial receives little public attention or is intensely covered in the media,” it said. “We do so today because our constitutional obligation demands no less.”
The three dissenting justices disagreed, writing: “In our view, today’s decision undermines the core principle of appellate deference to a jury verdict in a criminal trial and undermines the jury’s role at the heart of our criminal justice system. We consider the defendant’s acquittal to be unwarranted and unjust.”
They called the decision a “disservice to our jury system and a grave injustice to the victim, five-year-old Timothy Wiltsey.”
Lodzinski, 54, has always denied she had anything to do with the death of her son.
Her lawyers, Gerald Krovatin of Krovatin Nau in Newark and David W. Fassett of Arseneault & Fassett in Chatham, hailed the court’s decision.
“This is a great day for the rule of law; for the principle that convictions have to be based on evidence, not on speculation and emotion,” said Krovatin, who spoke to Lodzinski moments earlier to give her the news. “She started to cry,” he said. “She said, ‘Oh my god,’ and started to cry.”
Lodzinski’s younger brother, Michael Lodzinski, criticized the decision.
“We all know the jury got it right,” he said in a statement. “What happened today was just a result of some legal maneuvers and employment of a rarely used rule to insure a certain outcome, it is by no means a declaration of her innocence. Justice Albin says in the opinion that the jury can conclude ‘…that she had some involvement in his disappearance, death and burial.’ But not Timmy’s murder, give me a break. Justice Albin and his group believe they have righted some great wrong today but all they did was rob justice from a little boy, shame on them.”
A spokesman for the Middlesex County Prosecutor’s Office, which tried Lodzinski, did not indicate what it plans to do next.
“This office must respectfully decline to comment in light of the Supreme Court’s judgment and decision,” said Assistant Prosecutor Conner J.E. Ouellette.
Lodzinski cannot be tried again, which would violate a prohibition on so-called “double jeopardy” or being tried twice for the same matter, according to Krovatin.
TIMELINE: A 30-year look-back at the Timothy Wiltsey case
Long considered one of New Jersey’s most notorious unsolved, or “cold cases,” the disappearance and death of Timmy dated back to a warm Memorial Day weekend in May of 1991 when Lodzinski was than a 23-year-old single mother living in South Amboy.
She claimed she had gone with her son to attend a carnival in Sayreville’s Kennedy Park, where she said she soon lost sight of him. She told police she had put him on three rides before deciding to get on line to get a soda. When she returned, Lodzinski said Timmy was gone.
A search quickly followed, with dogs on the ground and a helicopter in the air. But authorities could find no trace of the boy, later reporting they could not locate anyone who had even seen him at the 10-acre park.
“We don’t know if he was abducted, or if he was even there at all,” said then-Middlesex County Prosecutor Alan A. Rockoff at the time.
Investigators, meanwhile, would grow increasingly troubled by Lodzinski’s series of ever-changing stories — as well as her sometimes odd and bizarre behavior.
In the days after reporting Timmy missing, Lodzinski abruptly changed her story and told police she had met a woman at the carnival she only knew as “Ellen,” who was there with a little girl and two men. She said she recognized the woman from a bank where she once worked as a teller, and believed she worked as a go-go dancer.
Lodzinski claimed Ellen agreed to watch Timothy while she went to the concession stand for a soda, and left her son with her. But after getting the soda, Ellen, Timothy, the woman, the little girl and the two men were all gone. She said she didn’t mention Ellen earlier because she didn’t want to get in trouble for leaving Timmy with someone she did not know very well.
Authorities would scour ponds in South Amboy looking for Timothy’s body, but found nothing. And they failed to identify Ellen.
A week later, Lodzinski again changed her story, telling detectives from Sayreville and the Middlesex County Prosecutor’s office that she had been confronted at knifepoint by one of the men with Ellen. The assailant allegedly came up behind her when she returned to her car, made threatening comments about Timothy’s safety, and then left with the boy. Lodzinski said the man indicated she might get her son back in a month and she might get a call from him. This time, she said she had been afraid to tell the truth because she didn’t want Timothy to get hurt.
Timmy’s disappearance captured national headlines. His face would appear on the back of milk cartons. Tragically, his skull and other remains were discovered nearly a year later in a remote area not far from where one of his distinctive Teenage Mutant Ninja Turtle sneakers had been found months earlier along a shallow creek in a remote section of Raritan Center.
Police say what was left of his body did not offer any indication of how the boy died or give any clues about his killer. Prosecutors later charged that Lodzinski had not told investigators she had once worked at Raritan Center.
Even after the boy’s remains were found, though, no one was charged in his death — despite the suspicions raised regarding his mother and continued questions about her sometimes erratic behavior. In January 1994, for example — with the death of Timmy still painfully fresh in the minds of many — Lodzinski’s family reported her missing after her car was found outside her brother’s Woodbridge apartment with the door open and the engine running.
The next day, Lodzinski contacted Detroit police and claimed she had been abducted by two men claiming to be FBI agents.
It wasn’t true. After she was interviewed by investigators from the Detroit police armed robbery unit and the FBI, Lodzinski admitted to the hoax, which authorities believed was cooked up to avoid a subpoena in a case involving a Union County police officer accused of improperly using a police computer to run license plate numbers of cars she believed were following her.
Years passed and the murder investigation of Timmy gradually became a cold case file, with boxes of evidence and transcripts of interviews kept in storage in the Middlesex County Prosecutor’s office.
Then in 2014, investigators began taking another look at the evidence they collected in the long-shelved case. Among the items was a faded blue-and-white child’s blanket discovered near the creek where his remains had been recovered. The prosecutor’s office, convinced that the frayed fabric could have only come from Lodzinski’s apartment, went back to question a niece and two others. All three testified later at the trial that they had had seen the blanket in her home when they were babysitting there.
Lodzinski had left New Jersey and was living and working in Florida in August of 2014 when police arrived with a warrant and arrested her in Port St. Lucie, Fla., where she was living with two sons born after Timothy’s death. She was charged with Timmy’s murder on his birthday, on the day he would have turned 29. She has been in custody ever since.
At Lodzinski’s trial in 2016, the blanket was presented by prosecutors as “the smoking gun” that proved her guilt.
“She dumped his body in a creek like a piece of trash, but she left behind a telling clue, this blanket,” said Deputy First Assistant Prosecutor Christie Bevacqua, putting on blue gloves and holding up the filthy and faded blanket found about 30 feet from Timothy’s remains. “No other killer could get this,” she said.
Bevacqua told the jury that all evidence pointed to Timmy’s mother.
Lodzinski did not testify during her trial.
In his summations, Krovatin, her defense attorney, declared that there was no evidence that Lodzinski caused the death of her child, adding “there is enough reasonable doubt in this case to drive a truck through it.”
After an eight-week trial, a jury convicted her of murder and she was sentenced to 30 years in state prison.
A state appellate court later upheld Lodzinski’s verdict in 2019, ruling that there was “available proof for the jury to conclude beyond a reasonable doubt that Timmy’s death was neither suicide nor an accident, but rather he was the victim of a homicide.”
The questions raised by the defense attorneys, though, did not go unnoticed. Less than a year later, the state Supreme Court in February 2020 agreed to take the case in an appeal that centered around defense arguments over whether the evidence was sufficient to convict Lodzinski, as well as whether the trial judge made a mistake when he refused to declare a mistrial.
In arguments before the high court, prosecutors and Krovatin sparred over whether Lodzinski could be convicted based on the circumstantial evidence presented at trial.
The attorney reiterated arguments made at trial that there was never any forensic evidence linking the blanket to Lodzinski’s apartment, despite analysis by the State Police and the FBI.
“The blanket was actually, I would submit, the biggest red herring in the case,” Krovatin said during oral arguments.
Middlesex County Assistant Prosecutor Joie Piderit, arguing before the justices for the state, said there were reasonable inferences to be made in the case.
“And the evidence is he disappeared under her care and his body was dumped in a creek right where she used to work. And a blanket that was taken from her home is recovered from that creek,” she said.
When it issued its ruling in May of this year, the court was sharply divided.
Justice Anne M. Patterson said the evidence presented at trial — including defendant’s proofs — was “more than sufficient to support a reasonable jury’s determination that defendant is guilty beyond a reasonable doubt of purposely or knowingly killing her son.”
In an opinion joined by Justices Faustino J. Fernandez-Vina and Lee A. Solomon, the court ruled that the state was “permitted to rely entirely on circumstantial evidence,” and “was not required to present direct evidence of defendant’s guilt, as long as it proved the elements of the offense beyond a reasonable doubt.”
Albin, though, voiced harsh criticism of the court’s ruling in May.
“Sustaining of the conviction in this case on such a paucity of evidence has no parallel in this state,” the justice wrote, arguing that the court could not “rationally justify the murder conviction of Michelle Lodzinski” with a verdict resting on speculation.
He said Lodzinski’s status as a single working mother was not a motive for murder, and he noted there were other factors casting doubt on how prosecutors identified the source of key evidence used to convict her, which had been based on the testimony of Lodzinski’s estranged niece who had been collaborating with the police.
“There is absolutely no evidence that she purposely or knowingly caused his death. There is no evidence to distinguish whether Timothy died by accident or by the negligent, reckless, or purposeful or knowing acts of a person — even if that person were Lodzinski,” Albin wrote in his earlier dissent. “The checks and balances in our criminal justice system have failed at all levels. The decades-long search for the cause of the tragic death of young Timothy has led only to a miscarriage of justice.”
He was joined by Justices Jaynee LaVecchia and Fabiana Pierre-Louis.
The tie vote, after Chief Justice Stuart Rabner — who had served in the U.S. Attorney’s office when federal authorities were first investigating Timmy’s disappearance and recused himself from the case — meant the earlier appellate ruling rejecting Lodzinski’s appeal held, leaving her conviction intact. Lodzinski’s lawyers subsequently asked the court take a second look with the temporary appointment of an appellate judge to hear the case. They argued the split decision effectively denied her of her right to due process, and the court agreed.
Months later, as a hearing on the case in October, it appeared that none of the six justices had moved from their hard-held positions that had been laid out in the 3-3 ruling in May.
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?’”
But Fuentes, the presiding appellate court judge brought in to re-hear the case, suggested in his questioning that 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.
He asked whether anybody had testified that Lodzinski had wished she had not had the child.
Piderit maintained Lodzinski’s own misstatements, the blanket and her motivation all weaved together to point to her guilt. The prosecutor in her arguments 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.
Krovatin rejected the assertion. He told the justices that “no reasonable jury” could draw inferences from the evidence submitted that she murdered her child.
“There was no evidence that Michelle was in any frame of mind to harm him,” the defense attorney said.
In their decision Tuesday vacating Lodzinski’s conviction, the justices all held the same views of the case that played out in the earlier 3-3 split decision.
In the end, though, it was Fuentes who ultimately did indeed serve as the tie-breaker.
Read the Supreme Court order vacating Lodzinski’s verdict below:
Ted Sherman may be reached at tsherman@njadvancemedia.com. Follow him on Twitter @TedShermanSL.
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