By KATHY CHANG
Staff Writer
NEW BRUNSWICK — There will be no new trial for Michelle Lodzinski, who was found guilty in May of murdering her 5-year-old son, Timothy “Timmy” Wiltsey in 1991, according to a ruling this past week by Middlesex County Superior Court Judge Dennis Nieves.
In August, Gerald Krovatin, attorney for Lodzinski, had argued in court that a “juror’s misconduct” during jury deliberations warranted a new trial for his client.
The jury had started deliberations on May 12 after a 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.
Through arguments, the jury foreman had researched Federal Bureau of Investigation (FBI) crime scene protocols and the information he researched was 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.
Butkiewicz found the blue blanket near Timothy’s remains in 1992. The identification of the blanket by three individuals, who used to babysit for Timothy, led to Lodzinski’s indictment by a Middlesex County grand jury in July, followed by her arrest in Florida and extradition to New Jersey.
Nieves in his 20-page ruling stated that he is confident that his jury instructions on direct and circumstantial evidence were instructive as he read on and off script to ensure understanding.
“This jury was persuaded that the blanket in question, with its evidential deficiencies, was from the home [of Lodzinski, who lived in South Amboy at the time],” he wrote.
Nieves said relative to juror misconduct, he cringes every time he gets to initial instructions where he tells the jury panel that they are not investigators and the evidence comes from the witness stand.
He noted that he slams the witness stand for added effect.
“How much clearer can I be?” asked Nieves. “How could this juror not understand his oath and instructions on how to do his function? I conclude that this remained exclusively personal to him.”
Nieves said he is mindful of his obligation to scrutinize all evidence with a view to correct a clear error or mistake made by the jury.
“Once again, I have found myself asking whether the defendant was deprived of a fair trial,” he wrote. “I am also mindful of my authority to grant a new trial if it clearly and convincingly appears that Ms. Lodzinski was manifestly denied justice. I cannot say she was.”
Nieves further wrote that Lodzinski was privileged to have the best criminal defense attorney who has ever entered his courtroom.
“One who, on occasion after occasion, convinced this Court to rule against the prosecution; one who expressed profound emotion throughout and [until] the end,” he wrote.
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 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 days and weeks after Timmy was reported missing, Lodzinski told law enforcement officials at least four different versions of what had happened at the carnival.
Timmy’s skeletonized remains were found in the creek off Olympic Drive in Raritan Center in Edison on April 23, 1992.
Through testimony, law enforcement officials investigating the case in 1991 and 1992 have said Lodzinski was their primary suspect in Timmy’s disappearance.
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 re-open the cold case in 2011.
No new sentencing date for Lodzinski, who faces life in prison, has been scheduled.