By KATHY CHANG
Staff Writer
NEW BRUNSWICK — From the very start of the three-month trial of Michelle Lodzinski — who was found guilty in May of murdering her 5-year-old son, Timothy “Timmy” Wiltsey, in 1991 — Middlesex County Superior Court Judge Dennis Nieves looked squarely at the members of the jury and in a firm voice would state, “Please, ladies and gentlemen, don’t blow this,” and he would cup his hand around his ear, and the jury would make a “SHH!” sound.
At a motion hearing on Aug. 23, the scheduled date for Lodzinski’s sentencing, Gerald Krovatin, attorney for Lodzinski, argued that a juror’s misconduct occurred when the jury foreman did not follow Nieves’ instructions and violated his oath by researching Federal Bureau of Investigation (FBI) crime scene protocols outside the trial.
The information he researched, Krovatin said, was then discussed among the members of the jury in relation to the credibility of retired FBI agent Ron Butkiewicz, who investigated the case in 1991 and 1992.
Through testimony, the jurors learned that Butkiewicz was the one who picked up a blanket where Timmy’s remains were found; however, he did not take a photograph of it. The identification of the blanket by Lodzinski’s niece, her niece’s friend and a babysitter led to the subsequent arrest and indictment of Lodzinski.
Another juror brought the information through a note to the attention of Nieves, which led the judge to question each juror.
The jury had started deliberations on May 12 after the three-month trial; however, the jury foreman was dismissed for personal reasons on May 17.
An alternate juror was selected, and the jury started new deliberations the morning of May 18. An hour later, the jury panel made up of seven men and five women came back with a guilty verdict of first-degree murder against Lodzinski.
Krovatin said there is no question that through case law the defense does not have the burden to prove the impact of the information during deliberations; however, that it has the “capacity and tendency” to influence the outcome of deliberations.
During Nieves’ questioning of the jurors, Krovatin said the outside information affected the juror who brought the information to the attention of Nieves and comments from three jurors did infer that the information may have had an impact on the deliberations.
Middlesex County Assistant Prosecutor Christie Bevacqua argued that Krovatin was comparing apples and oranges. She said he was speculating what the jurors may have been thinking rather than taking what had happened at face value.
She said the jury foreman was excused for his own personal reasons because he did not follow his oath as a juror, not for juror misconduct, which Krovatin argued was the case.
“He was not dismissed,” Bevacqua said.
The assistant prosecutor also argued that Krovatin is speculating on the impact of the information that was discussed among the jurors when the note came before Nieves.
Krovatin also argued motions for acquittal on insufficient evidence against his client. He said the state’s case was entirely based on circumstantial evidence.
Assistant Prosecutor Scott LaMountain argued that he was not going to re-litigate the case; however, he said all the evidence pointed to Lodzinski, who was the last person to see her son alive.
Lodzinksi appeared in court wearing a green T-shirt and pants. She has been held at the Middlesex County Adult Correction Center in North Brunswick since May.
Middlesex County Superior Court Judge Dennis Nieves said he would take up to 30 days to decide on the motions that Krovatin argued in court.
Timmy was reported missing the night of May 25, 1991, at a carnival held at Kennedy Park in Sayreville. A massive search for him ensued after Lodzinski, who lived in South Amboy at the time, told authorities she had only turned her back on Timmy for a few minutes to get a soda at a concession stand when he disappeared.
In the weeks and months after Timmy was reported missing, Lodzinski changed her story of that night to law enforcement officials multiple times.
Timmy’s skeletal remains were found in the creek off Olympic Drive in Raritan Center in Edison on April 23, 1992.
No arrests were made at the time, and the case became cold. An anonymous tip that came into the Crime Stoppers hotline in 2011 about the disappearance of Timmy prompted the Middlesex County Prosecutor’s Office to reopen it in 2011.
Lodzinski was subsequently indicted on the murder charges in 2014.
Contact Kathy Chang at [email protected].