- Joseph A. Del Russo, JD
Professor Del Russo Explains: Sayreville Child Murder and Judgment Notwithstanding Verdict (JNOV)
Fascinating decision by the NJ Supreme Court earlier this month. In an order filed on October 6, the court reversed itself, and admitted a mistake— well at least half of them did, on a “motion for reconsideration” in the infamous 1990s child murder prosecution of Michelle Lodzinski.
A story that captivated much of New Jersey in the early 90s, Michelle Lodzinski, the defendant mother, reported that she turned her head for a moment at a Sayreville NJ carnival and her five-year-old son disappeared. It was Memorial Day, 1991. In October Timmy’s Teenage Mutant Ninja Turtle (TMNT), size 13 child sneaker, was discovered along with his decomposing body.
Back then, as a prosecutor in North Jersey, the talk in law enforcement circles was that police were skeptical of Lodzinski’s account. Such skepticism was quickly validated when the defendant engaged in all kinds of confounding, and ostensibly culpable behavior.
For example, she had fundamentally changed the account of her missing son multiple times. Nefarious strangers belatedly appeared in her narrative, including a sketchy gogo dancer named Ellen and two possible co-conspirators. Her explanations were implausible and decidedly amateurish.
In a marginally related matter, Lodzinski faked her own 1994 kidnapping and was found in Detroit Michigan. She reportedly was attempting to avoid a subpoena in an investigation of a police officer “friend”. The officer was suspected of helping Lodzinski identify auto license plates she believed were following her. She was prosecuted and sentenced to three years probation for her deception.
About four years later, in February 1998, Lodzinski was prosecuted again for theft of a $3000 computer from her former employer. She reportedly then gifeted the computer for Christmas. She received three years probation.
It is noteworthy that at the time of the original investigation, Timmy's skeletal remains were discovered in the Red Root Creek, a tributary of the Raritan River. It was there that investigators also found remnants of clothing, a shovel and a TMNT balloon, similar to one Timmy sometimes kept in his bedroom at home.
Years later, after a cold case review, and amid a renewed investigation, compelling new forensics, substantially different from the 1990’s conclusions, we’re discovered. Lodzinski was charged in the summer of 2014 with the 1991 murder. She was extradited from her home in Florida.
These forensic revisions, for example, included a review of the 1990s FBI analysis of the blanket remnants recovered at the scene. The FBI forensics team could not connect the blanket to the case. Nevertheless, in the mid 2000s, law-enforcement now presented evidence of a circumstantial connection.
The appellate division outlined the new forensics in their opinion (which was reversed for procedural/evidentiary reasons to be discussed in the moment).
“Approximately twenty-five feet above the remains, embedded in the soil in the bank of the creek, Butkiewicz found a blue blanket with multi-colored, metallic fibers. Although FBI testing on the blanket revealed nothing of evidential value, years later, a New Jersey State Police forensic scientist identified metallic fibers found on the pillowcase as being similar to those in the blanket, although he never performed a full trace analysis.
In 1992, defendant and her parents could not identify the blanket, but, twenty-years later, detectives showed the blanket to three women who babysat Timmy in the late 1980s and early 1990s; they identified it as coming from defendant's home. Police also showed the blanket to several other witnesses when the investigation was reopened, but none of them could identify it.
The medical examiner who examined the remains at the scene, but died before trial, could not reach a conclusion about the cause of Timmy's death. However, another medical examiner, Dr. Geetha Natajarian, who reviewed the autopsy reports, photographs, and investigative and other forensic reports, testified. She, too, could not determine a cause of death, but through a process of elimination, opined that the manner of Timmy's death was a homicide. A forensic anthropologist, Donna Fontana, opined that Timmy's body had decomposed where it was found, at a ‘surface burial’ site.”
In March 2016 the Middlesex County Prosecutors office began the Lodzinski murder trial. My colleague, Christie Bevacqua, is the lead prosecutor. An experienced litigator, child advocate, and accomplished prosecutor, Christie deftly navigated the circumstantial evidence, presenting a compelling case of child homicide. Lodzinski was convicted in May 2016.
Fast forward to October 2021, a few weeks ago. The New Jersey Supreme Court admitted that they made a mistake. Well at least half of them admitted it.
Two unusual legal events occurred.
Firstly the Supreme Court granted a reconsideration, which is rare.
Secondly, there was serious potential for a “judgement notwithstanding the verdict” (JNOV). JNOV is occurs when the judge in a jury trial overrules the decision of a jury. The rarely-granted intervention permits the judge to exercise discretion to avoid extreme and unreasonable jury decisions.
The Supreme Court had previously ruled that the appellate division’s conclusion denying a JNOV (that there was sufficient evidence for a reasonable jury to find “beyond a reasonable doubt” that Lodzinski killed her son), must stand.
This was even though the lower appellate court’s analysis was based upon a patently incorrect interpretation of the law. Simply stated, the appellate court only looked at the prosecutions proof, and ignored any counter evidence of the defense.
In view of this glaring mistake by the lower court, the Supreme Court engaged in its own analysis of whether there was enough evidence to convict. However because the court was short a justice (there were only six) the result was a tie.
Three justices believed that the evidence was insufficient, and Lodzinski’s conviction must be reversed and three justices believed that there was enough evidence.
In that situation the lower court’s ruling stands. The case is finally over. Even though it was legally flawed. Or is it?
The defendant’s legal team requested reconsideration, which the Court granted. They then used a court rule which permitted the Chief Justice to call up Judge Jose L. Fuentes, the senior most member of the state Appellate Division, and now, seven justices will decide the issue.
Oral argument is scheduled for the week of Monday, October 25, 2021. Michelle Lodzinski awaits the decision from her cell at the notorious Edna Mahan Women’s Prison in Hunterdon County. She is serving a 30 year sentence on a single count of murder.