KROVATIN ICLINGEMAN LLC
Gerald Krovatin, Esq. (Attorney No. 024351977)
60 Park Place, Suite 1100
Newark, New Jersey 07102
(973) 424-9777
THE LAW OFFICE OF ROBERT J. WATSON
Robert J. Watson, Esq., admitted pro hac vice
3601 South East Ocean Boulevard, Suite 4
Stuart, Florida 34996-6737
Attorneys for Defendant
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION — MIDDLESEX COUNTY
INDICTMENT NO. 14-08-00871
CRIMINAL ACTION
STATE OF NEW JERSEY,
vs.
MICHELLE LODZINSKI
Defendant.

MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANT'S PRETRIAL MOTIONS

On the Brief
Gerald Krovatin, Esq.
Robert J. Watson, Esq.
John M. Cheever, Esq.

 TABLE OF CONTENTS
TABLE OF AUTHORITIES

ii

STATEMENT OF FACTS

1

ARGUMENT
I.
II.

3

THE COURT SHOULD ORDER THE STATE TO FURNISH A BILL OF
PARTICULARS

3

THE INDICTMENT SHOULD BE DISMISSED BECAUSE THE STATE DID NOT
PRESENT SUFFICIENT EVIDENCE TO THE GRAND JURY TO ESTABLISH
PROBABLE CAUSE TO BELIEVE THAT A CRIME WAS COMMITTED AND
THAT THE DEFENDANT COMMITTED IT

5

III THE COURT SHOULD SUPPRESS THE STATEMENTS MADE BY THE
DEFENDANT

13

IV.

THE INDICTMENT SHOULD BE DISMISSED BECAUSE THE STATE VIOLATED
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW BY WAITING 23 YEARS
TO SEEK HER INDICTMENT
24

V.

DR. SHUSTER'S AUTOPSY REPORT, DR. NATARAJAN'S REPORT, AND DR.
NATARAJAN'S DERIVATIVE TESTIMONY ARE ALL INADMISSIBLE UNDER
THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT AND THE NEW
JERSEY CONSTITUTION
29

VI.

THE COURT SHOULD CONDUCT A DRIVER HEARING TO DETERMINE THE
AUDIBILITY AND ADMISSIBILITY OF ALL TAPE AND AUDIO RECORDINGS
OFFERED BY THE STATE
37

CONCLUSION

39

 TABLE OF AUTHORITIES
Cases
Agha v. Feiner,
198 N.J. 50, 965 A.2d 141 (2009)
Buckelew v. Grossbard,
87 N.J. 512, 435 A.2d 1150 (1981)
Bullcoming v. New Mexico,
131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011)
Crawford v. Washington,
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)
Davis v. Washington,
547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006)
Jimenez v. GNOC, Corp.
286 N.J. Super. 533, 670 A.2d 24 (App. Div. 1996)
Ohio v. Clark„
576 U.S.
,5 (2015)
Pointer v. Texas,
380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965)
Rosenberg v. Tavorath,
352 N.J. Super. 385, 800 A.2d 216 (App. Div. 2002)
State v. Aguirre,
287 N.J. Super. 128, 670 A.2d 583 (App. Div. 1996)
State v. Alexander,
310 N.J. Super. 348, 708 A.2d 770 (App. Div. 1998)
State v. Brown,
80 N.J. 587, 404 A.2d 1111 (1979)
State v. Burr,
195 N.J. 119, 948 A.2d 627 (2008)
State v. Cichetto,
144 N.J. Super. 236, 365 A.2d 207 (App. Div. 1976)
State v. DiRienzo,
53 N.J. 360, 251 A.2d 99 (1969)
State v. Driver,
38 N.J. 255, 183 A.2d 655 (1962)
State v. Galloway,
133 N.J. 631, 628 A.2d 735 (1993)

33, 35
35
29, 30, 32,33, 35
29,30
30
35
29
29
35
25, 28
25, 28
10
13
24, 28
11
39
15

 State v. Greco,
187 N.J. Super. 421, 455 A.2d 485 (App. Div. 1982)
State v. Hogan,
144 N.J. 216, 676 A.2d 533 (1996)
State v. Hreha,
217 N.J. 368, 89 A.3d 1223 (2014)
State v. Hutchins,
241 N.J. Super. 353, 575 A.2d 35 (App. Div. 1990)
State v. King,
215 N.J. Super. 504, 522 A.2d 455 (App. Div. 1987)
State v. Martinez,
97 N.J. 567, 483 A.2d 117 (1984)
State v. Michaels,
219 N.J. 1, 95 A.3d 648 (2014)
State v. Moore,
122 N.J. 420, 585 A.2d 864 (1991)
State v. Morrison,
188 N.J. 2, 902 A.2d 860 (2006)
State v. Muhammed,
366 N.J. Super. 185, 840 A.2d 928 (App. Div. 2004)
State v. New Jersey Trade Waste Ass'n,
96 N.J. 8, 472 A.2d 1050 (1984)
State v. Reyes,
50 N.J. 454, 236 A.2d 385 (1967)
State v. Roach,
219 N.J. 58, 95 A.3d 683 (2014)
State v. Roundtree,
118 N.J. Super. 22, 285 A.2d 564 (App. Div. 1971)
State v. Saavedra,
A-68 SEPTTERM 2013, 2015 WL 3843764 (N.J. June 23, 2015)
State v. Schenkolewslci,
301 N.J. Super. 115, 693 A.2d 1173 (App. Div. 1997)
State v. Swint,
328 N.J. Super. 236, 745 A.2d 570 (App. Div. 2000)
State v. Townsend,
186 N.J. 473, 897 A.2d 316 (2006)
State v. Weaver,
219 N.J. 131, 97 A.3d 663 (2014)
State v. Williams,
219 N.J. 89, 95 A.3d 701 (2014)

111

38
8
15
13
39
10
32
15
9, 12
13
8
9
33
24, 28
9, 10
9
10
24
31
30, 34

 State v. Williamson,
31 N.J. 16, 155 A.2d 7 (1959)
State v. Zicarelli,
122 N.J. Super. 225, 300 A.2d 154 (App. Div. 1973)
U. S. v. Lovasco,
431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977)
United States v. Eight Thousand Eight Hundred & Fifty Dollars ($8,850) in U.S. Currency,
461 U.S. 555, 103 S. Ct. 2005, 76 L. Ed. 2d 143 (1983)
United States v. Gouveia,
467 U.S. 180, 104 S. Ct. 2292, 81 L. Ed. 2d 146 (1984)
United States v. Marion,
404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971)
Verdicchio v. Ricca,
179 N.J. 1, 843 A.2d 1042 (2004)

4
38
24
24
24
24
13

Statutes
N.J. Const., Art I
N.J. Stat. Ann § 2C:11-3a(1)(2) (West)
U.S. Const. amend. VI
U.S. Const. amend. XIV

29
3, 31
29
38

Rules
N.J. Ct. R. 3:7-5
N.J.R.E. 401
N.J.R.E. 402
N.J.R.E. 403
N.J.R.E. 703

4
13
13, 14
13,14, 15
29,36, 37

iv

 STATEMENT OF FACTS1
Five-year-old Timothy Wiltsey went missing from a camival in Kennedy Park in
Sayreville, New Jersey, on May 25, 1991. From day one, investigators focused on this
Defendant as the prime suspect in Timothy's disappearance. On October 27, 1991, five months
after the disappearance, a sneaker similar to those Timothy was last seen wearing was found in
the Raritan Center Complex in Edison, New Jersey. Ms. Lodzinski did not immediately
recognize this shoe as Timothy's. In April 1992 (eleven months after the disappearance), partial
remains were recovered in the Raritan Center and identified forensically as Timothy's. Also
recovered in the same vicinity were a pillowcase and a blue blanket. The pillowcase and blanket
each contained hair fragments.
The blanket, pillowcase and a shovel, which also was recovered in the general
vicinity, were shown to Ms. Lodzinski, her mother and her father, but none of them recognized
them. The hair fragments were examined microscopically and compared to hair samples from
Ms. Lodzinski. Fiber samples were compared. There was no match.
Dr. Marvin Shuster performed an autopsy on April 25, 1992, two days after the
remains were found. There were no signs of trauma. In a four-page report, Dr. Shuster
concluded that the cause of death was undetermined, and he opined that the manner of death was
"homicidal," citing "all of the above information." However, the report contains no facts
supporting Dr. Shuster's conclusion that Timothy's death was a homicide. Dr. Shuster has since
passed away.

The facts sununarized here are taken from the discovery material provided by the State.
The Defendant neither adopts these facts, nor attests to their credibility and reserves all rights
and objections.

 In June 2011, twenty years after Timothy's disappearance, investigators showed
the blue blanket to Jennifer Blair, Ms. Lodzinski's niece and occasional babysitter. She
identified the blanket as Timothy's.
For almost three years, investigators tried unsuccessfully to corroborate Blair's
identification, first with other witnesses, then with forensic and DNA testing. They showed the
blanket to six more people who were close with Michelle when Timothy disappeared. None
could identify the blanket. Investigators submitted hair fragments from the blanket and
pillowcase for an additional round of DNA testing, including a mitochondrial DNA test. None
of them matched Ms. Lodzinski.
On July 31, 2014, the State presented the case to a Middlesex County Grand Jury
and obtained an indictment against Ms. Lodzinski for Timothy's murder. Investigators traveled
to Port St. Lucie, Florida, where Michelle worked as a paralegal and lived openly with her two
teenaged sons. On August 6, 2014, on Timothy's birthday and twenty-three years after his
disappearance, they arrested Ms. Lodzinski. She waived extradition to New Jersey and remains
incarcerated in lieu of bail.

-2-

 ARGUMENT
I. THE COURT SHOULD ORDER THE STATE TO FURNISH A
BILL OF PARTICULARS

The Indictment here alleges in pertinent part that:
. . . Michelle Lodzinski, on or between May 25, 1991 and April 23, 1992,
in the City of South Amboy and/or the Borough of Sayreville and/or the
Township of Edison and/or other municipalities within the County of
Middlesex, aforesaid, and/or other municipalities, all within the
jurisdiction of this Court, did purposely or knowingly kill Timothy
Wiltsey, or did purposely or knowingly inflict serious bodily injury upon
Timothy Wiltsey, resulting in his death; contrary to the provisions of
N.J.S.A. 2C:11-3a(1)(2) . . .
See Certifícation of Gerald Krovatin, Esq., July 10, 2015 ("Krovatin Cert."), Exh. A
In 1991-92, as it does now, N.J.S.A. 2C:11-3a, provided that "criminal homicide
constitutes murder when:
(1) The actor purposely causes death or serious bodily injury resulting in
death; or
(2) The actor knowingly causes death or serious bodily injury resulting in
death;"

Nothing in the discovery produced by the State to date indicates how or in what
manner the defendant allegedly caused the death of Timothy Wiltsey, or, altematively, how or in
what manner she allegedly caused serious bodily injury to Timothy Wiltsey resulting in his
death. This leaves the defendant unable to prepare a defense to an essential element of the
offense charged, namely that she in some manner allegedly caused the death of Timothy Wiltsey.

-3-

 N.J.R. 3:7-5 provides:
A bill of particulars shall be ordered by the court if the indictment or
accusation is not sufficiently specific to enable the defendant to prepare a
defense. The defendant shall move therefore pursuant to Rule 3:10-2.
The application shall point out clearly the particulars sought by the
defense. The prosecutor shall fumish the bill of particulars within 10 days
after the order of the court. Further particulars may be ordered when a
demand therefor is promptly made. A bill of particulars may be amended
at any time, subject to such conditions as the interest of justice requires.
Any particulars that have been fumished to the defendant pursuant to R.
3:13-3 and 4 shall not be subject to an application pursuant to this rule.
When an indictment "does not state sufficient particulars conceming the crime charged," the
remedy is for the Court to order a bill of particulars. State v. Williamson, 31 N.J. 16, 22 (1959)
(Schettino, J., dissenting).
Accordingly, the Defendant now moves for an Order compelling the State to
fumish a bill of particulars setting forth the following particulars about the crime charged in the
Indictment.
(1) How or in what manner did the Defendant allegedly knowingly or
purposely cause the death of Timothy Wiltsey?
(2) What "serious bodily injury" did the Defendant allegedly knowingly
or purposely inflict upon Timothy Wiltsey resulting in his death?
(3) Please identify the evidence in support of your responses to requests
(1) and (2).

-4-

 II. THE INDICTMENT SHOULD BE DISMISSED BECAUSE THE
STATE DID NOT PRESENT SUFFICIENT EVIDENCE TO THE
GRAND JURY TO ESTABLISH PROBABLE CAUSE TO BELIEVE
THAT A CRIME WAS COMMITTED AND THAT THE
DEFENDANT COMMITTED IT
A.

(1)

The Indictment should be dismissed because the State failed to
present any evidence to the grand jury of an essential element of
the crime charged, namely that this Defendant caused the death of
Timothy Wiltsey.

The Case that the State Presented to the Grand Jury was Entirely
Circumstantial.
The State s presentation to the grand jury consisted of the testimony of Sgt. Scott

Crocco of the Prosecutor's Office and retired Sayreville Police Sgt. Richard Sloan. See Grand
Jury Transcript, July 31, 2014 ("Grand Jury Tr."), Krovatin Cert., Exh. B. Neither officer
testified to any direct evidence of the Defendant's involvement in the death of her son. There
was no evidence of any admissions or confessions by Ms. Lodzinski about the death of her son.
No other witnesses reported any admissions by Ms. Lodzinski about her involvement in the
death of her son. There were no reports or witnesses who said that Ms. Lodzinski had ever
abused Timothy. Dr. Marvin Shuster, the Middlesex County Medical Examiner, who is now
deceased, found no indication of trauma or injury on the remains of Timothy. While he was
unable to determine the cause of Timothy's death, Dr. Shuster nevertheless inexplicably found
that the manner of death was "homicidal."
The Assistant Prosecutor who presented the case to the grand jury questioned Sgt.
Crocco, the principal grand jury witness, as follows:

Q.

Now Dr. Shuster (phonetic) was the Medical Examiner, at that time?

A.

Yes, he was.

-5-

 Q.

And he has since passed away?

A.

Yes.

Q.

In his report, did he rule Timothy's death a homicide?

A.

Yes, he did.

Q.

As to the manner of death?

A.

Yes, he did.

And based on your experience as a Homicide Investigator, sometimes is there
both a — sometimes is there both a manner of death and a cause of death?

Q.
A.

Yes.

Q.

And is it fair to say, that it in this particular case, there was no cause of death

determined?
A cause of death could not be determined, because of the length of time that had
A.
expired and the condition that the remains were in when we found them.
* * *

Now as part of Dr. Shuster's report, did he indicate in his report, any signs of
trauma to Timmy's skull or lower extremities?

Q.

A.
of trauma.

He did not. In the — in the bones and skull that was recovered, there were no signs

In fact, based on your review of Dr. Shuster's report, was an x-ray done of
Timothy's skull?

Q.

A.

Yes, sir.

And there was nothing found to indicate — that would be consistent with an
accidental fall, or something of that nature?

Q.

A.

Nothing at all. The skull was completely intact.

Grand Jury Tr., 170:20— 171:14; 172:2— 13.
Without any direct evidence of Ms. Lodzinski's involvement in the death of her
son, or even any evidence of the cause of Timothy's death, the State's case to the grand jury

-6-

 consisted exclusively of circumstantial evidence, much of which is directly contradicted by other
evidence in the extensive file that has been built around this case since 1991. That conflicting
evidence was not presented to the grand jury. Nevertheless, the circumstantial evidence that was
presented can be summarized as follows:2
•
•
•
•
•
•
•
•
•
•

•
•
•

•
•
•

Michelle Lodzinski was struggling financially, had previously declared bankruptcy and
was having trouble paying her bills;
Timothy was a burden on her lifestyle; she had lost two boyfriends who were not ready
to be fathers to him;
Ms. Lodzinski had trouble getting Timothy to school on time;
Ms. Lodzinski did not show appropriate emotion after the disappearance of Timothy;
She once worked approximately a half mile from where Timothy's remains were found
and, the State claims, she did not initially disclose that job to the investigators;
There were no "confirmed" sightings of Timothy at the carnival or after 1:30 p.m. on
May 25, 1991;
Ms. Lodzinski gave conflicting statements about Timothy's disappearance from the
carnival on May 25, 1991 in the three weeks after his disappearance;
Ms. Lodzinski parked behind Sayreville High School when she got to the carnival, even
though the parking lot at the carnival at JFK park was not full;
Investigators allegedly could not identify or locate a woman who Ms. Lodzinski said was
involved in the abduction of Timothy;
Ms. Lodzinski's landlady and neighbor said that Ms. Lodzinski did not immediately
retrieve messages from her answering machine on the night that Timothy disappeared;
when the landlady listened to them herself, they were unrelated to the disappearance;
Ms. Lodzinski did not correct an investigator who spoke about Timothy in the past tense;
Ms. Lodzinski did not recognize Timothy's sneaker at first when it was found in October
1991 in the vicinity of where his remains were later discovered;
In 2011, twenty (20) years after Timothy's disappearance, Jennifer Blair, Ms.
Lodzinski's niece and occasional babysitter, said she recognized a blue blanket found in
the vicinity of Timothy's remains in 1992, even though at least three different forensic
tests on the blanIcet and on a hair found on the blanket, including a mitochondrial DNA
test, did not match Ms. Lodzinski;
Also 20 years later, a close friend of Ms. Lodzinski's did not recognize the blue blanIcet,
but did think that a pillowcase found in the vicinity of the remains "looked familiar;"
No physical evidence was found linking anyone else to Timothy's disappearance and
death;
No one was identified who had a motive to kill Timothy.

2

Much of the evidence that the State presented to the grand jury will not be admissible at
trial. Defendant reserves all rights and objections.
-7-

 The Assistant Prosecutor who presented the case to the grand jury summarized the State's
circumstantial case as follows in his questions to Sgt. Crocco, the principal grand jury witness:
Now to be fair, Sergeant, during the course of the investigation from the
day Timothy went missing on February [sic: May] 25, 1991 until today, you have
no direct evidence, that being an eye witness, of Michelle Lodzinski causing harm
to her son, Timothy Wiltsey?

Q.

A.

No eye witnesses. No, sir.

No forensic evidence, such as DNA or fingerprints, that directly links
Michelle Lodzinski to the disappearance of Timothy Wiltsey?

Q.
A.

No forensic evidence that — indicates anyone. No, sir.

Her house — to your knowledge, her house was searched back in the day,
for blood and things of that nature?

Q.
A.

Yes, sir.

Q.

Her car was searched?

A.

Yes, sir.

Now — the blanket was tested back then, and nothing came up linking her
or anyone else to the crime?

Q.
A.

That's correct.

Grand Jury Tr., 177:5-25.
(2)

The State's Failure to Present at Least Some Evidence of Each
Element of its Prima Facie Case Requires that the Indictment Be
Dismissed
The dismissal of an indictment lies within the discretion of the trial court. State v.

New Jersey Trade Waste Ass 'n, 96 N.J. 8, 18-19 (1984). Such discretion should not be exercised
except on the clearest and plainest ground and unless the indictment is "manifestly deficient or
palpably defective." Id; State v. Hogan, 144 N.J. 216, 228-29 (1996).
In applying that standard, our Supreme Court has held that the absence of any
evidence presented to the grand jury to support the charges renders an indictment "palpably

-8-

 defective" and subject to dismissal. See State v. Morrison, 188 N.J. 2, 12 (2006). Even if an
indictment appears sufficient on its face, it cannot stand if the State failed to present the grand
jury with at least some evidence as to each element of its prima facie case.

State v.

Schenkolewski, 301 N.J. Super. 115, 137 (App. Div.), certif denied 151 N.J. 77 (1997).
On a motion to dismiss an indictment, a trial court applies the same standard that
it would use in ruling on a motion for judgment of acquittal at the end of the State's case:
A trial court deciding a motion to dismiss an indictment determines
"whether, viewing the evidence and the rational inferences drawn from the
evidence, in the light most favorable to the State, a grand jury could
reasonably believe that a crirne occurred and that the defendant committed
it."
State v. Saavedra, 2015 WL 3843764, N.J. Supreme Ct., June 23, 2015, quoting State v.
Morrison, supra, 188 N.J. at 13 (emphasis added); State v. Reyes, 50 N.J. 454, 459 (1967); see
also R. 3:18-1.
The circumstantial evidence that the State presented to the grand jury, and the
reasonable inferences that can be drawn from that circumstantial evidence, were insufficient to
establish probable cause that the defendant purposely or knowingly caused the death of Timothy
Wiltsey
(3)

The State's Presentation to the Grand Jury Exceeded the
Permissible Uses of Inferences, and the Stacking of Inferences, to
Establish Probable Cause
The State admits that it presented no direct evidence to the grand jury that

Michelle Lodzinski caused Timothy's death, or inflicted serious bodily injury resulting in his
death. In the absence of any direct evidence, the State contends that it was entitled to have the
grand jury infer that she caused Timothy's death from the circumstantial evidence that it did
present.
-9-

 In applying the Reyes test, quoted above, a jury may draw an inference from a fact
whenever it is more probable than not that the inference is true; the veracity of each inference
need not be established beyond a reasonable doubt. State v. Brown, 80 N.J. 587, 592 (1979).
The jury should focus on the logical connection between the proffered evidence
and a fact in issue. If the evidence offered renders the desired inference more probable than it
would be without the evidence, it is relevant. A jury may draw an inference from a fact
whenever it is more probable than not that the inference is true. State v. Swint, 328 N.J. Super.
236 (App. Div. 2000).
However, the State's right to the benefit of inferences is not without limits. The
inferences themselves must be "reasonable," State v. Martinez, supra, and "rational, " State v.
Saavedra, supra. Most importantly, the State's right to rely on reasonable inferences cannot be
used "to shift or lighten the burden of proof, or become a bootstrap to reduce the State's burden
of establishing the essential elements of the offense charged." State v. Brown, 80 N.J. 587, 592
(1979); State v. Martinez, 97 N.J. 567, 572 (1984) (collecting cases.)
That is exactly the case here. There is nothing about the circumstantial evidence
submitted to the grand jury that reasonably leads to the conclusion that this defendant caused the
death of her son. Specifically, for example, the fact that Ms. Lodzinski was having financial
difficulty; that, as a single mother, her 5-year old child was impacting her dating relationships;
that she did not react to the abduction of her child as visibly as some people would have wanted
— none of those facts standing alone, or taken together, make it more likely than not that she
purposely or knowingly caused his death. Even the increasingly detailed statements that Ms.
Lodzinski gave about the circumstances of Timothy's abduction do not create that logical link.

-10-

 At best, the State can argue that the grand jury might logically infer that someone
who tells inconsistent versions of an event such as an abduction knows something more about
the abduction. But that is a far cry from inferring that someone who knows more about an
abduction makes it more likely than not that the person also therefore caused the death of the
person who was abducted. That is an impermissible leap from "reasonable" inference into the
realm of pure speculation.
In fact, the State presented the case to the grand jury on the theory that there was
no abduction. The State submitted that there was no physical evidence that Timothy was at the
camival, Grand Jury Tr., 28:15-18, and that no one, either before or after Timothy was reported
missing, saw him at the carnival. Grand Jury Tr., 130:18-22. The inference the State asked the
grand jury to draw, therefore, was that they could infer that a person who would fabricate a story
about the abduction of her child must have knowingly or purposely murdered her child. That,
again, is an impennissible leap from rational inference to pure, unfounded speculation.
Our caselaw makes it clear that it is the duty of the Court to prevent a jury from
doing exactly that — from substituting pure speculation for "reasonable," "rational," and "logical"
inferences. "No defendant should be subjected to a jury which can do more than speculate on the
evidence before it." State v. DiRienzo, 53 N.J. 360, 377 (1969).
In DiRienzo, the Supreme Court upheld the constitutionality of a statute, since
repealed, that allowed the jury to infer knowledge that goods were stolen from proof of mere
possession of the goods within a year of the theft. The court made clear that a jury is always free
to reject even a statutory presumption. Similarly, the court emphasized that a statutory
presumption could never "impinge upon the trial judge's responsibility for safeguarding the

 integrity of the jury trial, including the right to have a case withheld from the jury when the
evidence is insuffícient as a matter of law to support a conviction." Id. at 378. Statute or no
statute, the trial court always "should be free to withhold a case from the jury where reasonable
men could not differ as to whether the inference should be drawn." Id. at 381.
In this case, the grand jury could not have reasonably and logically concluded
from the circumstantial evidence presented that it was more likely than not that Michelle
Lodzinski purposely or knowingly caused the death of her son. The evidence presented was not
sufficient for a reasonable grand jury to have concluded that there was probable cause to believe
that Ms. Lodzinski caused the death her son. Without some evidence of that essential element of
the State's prima facie case, this Indictment is "palpably deficient and must be dismissed. State
v. Morrison, supra.

-12-

 III. THE COURT SHOULD SUPPRESS THE STATEMENTS
MADE BY THE DEFENDANT

The State plans to move into evidence at trial twelve (12) statements attributed to
Michelle Lodzinski. All but one of them were made without counsel being present. The
majority of the statements (8 out of 12) were made at the Sayreville Police station or the New
Jersey State Police headquarters in Trenton. They were made by a 23 year-old woman with no
significant prior dealings with law enforcement under the extraordinarily stressful conditions
surrounding the disappearance of her son and the media and law enforcement attention that
immediately focused on her as the prime suspect in his disappearance.
A. The statements are not relevant to the crime charged and should be
excluded pursuant to N.J.R.E. 402, or, altematively, should be
excluded pursuant to N.J.R.E. 403 because the probative value of the
statements is substantially outweighed by the risk of undue prejudice,
confusion of issues and misleadinu the iury.
(1) The statements are not relevant.
Under New Jersey Evidence Rule 401, relevant evidence "means evidence having
a tendency to prove or disprove any fact of consequence to the action." Only relevant evidence
is admissible. N.J.R.E. 402.
The "tendency to prove or disprove" is often referred to as probative value. See
State v. Burr, 195 N.J. 119, 127 (2008). In determining probative value, a trial court should
focus on "the logical connection between the proffered evidence and a fact in issue." State v.
Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990). The test for relevance is broad and favors
admissibility. Verdicchio v. Rica, 179 N.J. 1, 34 (2004). Despite the broad admissibility test,
evidence that does not meet the standard will not be admissible. State v. Muhammed, 366 N.J.
Super. 185, 202-03 (App. Div.), aff'd 182 N.J. 551 (2005).
-13-

 Here, none of the statements attributed to Michelle Lodzinski concern the murder
of Timothy Wiltsey or the infliction of serious bodily injury to him. A11 of the statements
concem his abduction from the carnival at JFK park in Sayreville on May 25, 1991 and the
circumstances surrounding his abduction. While the statements have been erroneously described
as "conflicting," in fact they are more consistent than they are conflicting. The statements are
more accurately described as successively adding additional details about the abduction.
Either way, none of the statements makes a logical connection between the
abduction of Timothy and his death, allegedly at the hands of Ms. Lodzinski. The fact that
Timothy was abducted, even the fact that his mother may have given different or conflicting
versions about his abduction, does not have "a tendency to prove" that she murdered him. Ms.
Lodzinski statements also do not suggest that she played any role in his abduction. Indeed, the
State's theory as presented to the grand jury was the opposite. The State contended that there
was no abduction and told the grand jury that there were no confinned sightings of Timothy at
the camival at all, and no confírmed sightings of him after 1:30 p.m. on May 25, 1991.
As such, Ms. Lodzinski 's twelve statements about the circumstances surmunding
the abduction of Timothy are Melevant to the murder charge against her and are therefore not
admissible pursuant to N.J.R.E. 402.
(2) Even if Relevant, Ms. Lodzinski 's Twelve Statements Should be Excluded
Pursuant to Evid. R. 403 Because their Probative Value is Substantially
Outweighed by the Risk of Undue Prejudice, Confusion of Issues and
Misleading the Jury
As set forth above and in the preceding motion to dismiss the Indictment, Ms.
Lodzinski's twelve statements have the capacity to confuse and mislead the jury and to permit
the jurors to move from logical inference to pure speculation that, if Ms. Lodzinski gave

-14-

 inconsistent statements about Timothy's abduction, she must know more about the abduction. If
she made inconsistent stories about a non-existent abduction, that means she "must have" also
murdered her son. The latter leap is the impermissibly speculative one. The admission of Ms.
Lodzinslci' s twelve statements creates an undue risk that the jury will be misled into making that
impermissible leap. That undue risk of misleading or confusing the jury is precisely what
N.J.R.E. 403 is designed to avoid. See State v. Moore, 122 N.J. 420, 467 (1991) (Rule 403
requires exclusion of evidence where danger of undue prejudice outweighs probative value "so
as to divert jurors from reasonable and fair evaluation of the basic issue of guilt or innocence.")
The twelve statements should not be admitted into evidence at trial for that very reason.
B.

The State C,annot Meet Its Burden to Prove Beyond a Reasonable Doubt
That Ms. Lodzinski's Statements Were Voluntary And That The Police
Did Not Overbear Her Will With Their Repeated Interrogations of Her.
In all cases, the State has the burden of proving beyond a reasonable doubt that a

defendant's statement was voluntary and that "the police did not overbear the will of the
defendant." State v. Hreha, 217 N.J. 368, 383 (2014), citing State v. Galloway, 133 N.J. 631, 654
(1993). Courts are to assess the totality of the circumstances, evaluating the characteristics of the
defendant and the nature of the inten-ogation by looking at factors like "the suspect's age,
education and intelligence, advice conceming constitutional rights, length of detention, whether
the questioning was repeated and prolonged in nature, and whether physical punishment and
mental exhaustion were involved." Galloway, supra, 133 N.J. at 654. Moreover, courts should
consider "whether the defendant has had previous encounters with law enforcement and the
period of time between when Miranda rights were administered and when [the] defendant
confessed." Hreha, supra, 217 N.J. at 383.

-15-

 In the present case, the Sayreville Police and the Middlesex County Prosecutor's
Office quickly concluded that Ms. Lodzinski was the prime suspect in the disappearance of her
son. Under the guise of attempting to help her find Timothy, they repeatedly interrogated her
about the events surrounding Timothy's disappearance from the camival to attempt to elicit a
confession from her. They tried several interrogative techniques, including eliciting the
assistance of the FBI's Behavioral Science Unit. They also brought a female detective to Ms.
Lodzinski's home to try to establish a more conducive atmosphere for a confession. They were
assisted by Union County Police Officer Robert Javick, a friend of the Lodzinski family, who
insisted that Michelle come to live temporarily with him and his wife because they were
concemed about her mental health and emotional well-being in the days after Timothy's
disappearance. Several times, Officer Javick brought Ms. Lodzinski to the Sayreville Police
station for questioning, including after she became too emotionally distraught and upset to
continue.
All of these efforts ultimately were not successful in eliciting a "confession" from
Ms. Lodzinski or any kind of admission from her of her involvement in the death of her son.
They did result, however, in Ms. Lodzinski providing additional details about the abduction of
Timothy as the police pressed her repeatedly for more information. Taken together, it is apparent
that the statements were not voluntary in the sense that they were elicited while Ms. Lodzinski
was under extreme emotional distress about the abduction of her son and that in her precarious
mental state her will was overcome by the persistent badgering of the investigators.

-16-

 Statement 1, May 26, 19913
This statement was taken at approximately 12:30 p.m. on the day after the
abduction. Ms. Lodzinski had been up all night assisting the firefighters and police personnel
who were searching for Timothy. The statement was given at the Sayreville Police Station in the
presence of Ms. Lodzinski's brother and mother. The statement was sound-recorded and
transcribed. The police transcript of the statement indicates that Ms. Lodzinski was read
Miranda warnings, but they were not administered in the recorded portion of the interview. Ms.
Lodzinski described the events of the preceding day and said that at the camival, she had gone to
buy a soda and had left Timothy a short distance away where she could see him. When she
turned around after having purchased a soda, Timothy was gone.
Statement 2, June 4, 1991
This statement was taken at the Sayreville Police Station 10 days after the
abduction. It consists of Ms. Lodzinski's handwritten answers to a series of questions prepared
by the FBI Behavioral Science Unit. There is no indication that Ms. Lodzinski was given any
Miranda wamings prior to giving this statement. This statement is consistent with the May 26th
statement in its essential details about the abduction at the carnival on May 25th.
Statement 3, June 6, 1991
This statement was taken at the Sayreville Police Station from approximately
12:30 pm to approximately 3:45 pm. There is no audio recording of this statement. The police
report of this interview was written by Det. Ray Szkodny and appears at State's Discovery pp.

3

The State has the burden to produce the precise statements which it intends to offer and to
prove their admissibility. The discussion here is based on the State's identification in discovery
of the statements it intends to offer. Defendant leaves it to the State to produce the statements in
whatever form it intends to offer them at trial.
-17-

 311 - 314. Szkodny reported that he and Sgt. Sloan conducted this interview using a format
related to them by the FBI Behavioral Science Unit.
Szkodny described Ms. Lodzinski as extremely angry and upset. "Most of the
time during the interview Ms. Lodzinski had her arms crossed in front of her body and also her
legs crossed. Her head was down, eyes half-way to 3/4 of the way closed. She would not keep
eye contact with us. She appeared nervous and kept swallowing." After some questioning, Ms.
Lodzinski reportedly said, "Go ahead and charge me if you think you could." Szkodny reported:
We continued to ask her help and suddenly she started crying and sobbing
heavily. She quietly stated that they said they would hurt him if I said
anything. We calmed her down a bit and asked her again what she had
said. She stated that two men took him from the park. I asked her what
park and she stated Kennedy. I then asked her what happened there. She
said that Thnmy was on a ride. I asked her which one and she stated the
cars. She was looking away when the ride stopped. When she looked back
an older man was talcing him off. He started walking with him towards to
the tennis courts joining up with a younger man. She could give us no
description on him. She yelled out to him to stop and the older man tumed
toward her and stated stay away or we vvill hurt the boy. She continued
sobbing during this.
Later on in the interview, Sgt. Sloan asked Ms. Lodzinski why she told
them about the two men. She reportedly said, "You wanted to hear something so I told
you that." She then reportedly became angry, grabbed her purse and walked out of the
room. About 90 minutes later, after Ms. Lodzinski retumed with Union County Police
Officer Javick, she reportedly told the police that she made up the story about the two
men in the park.
Statement 4 June 7 1991
This statement was talcen at the Sayreville Police station at approximately 5:15
p.m. on June 7, 1991 by Det. Sgt. Richard Sloan and Det. Raymond Szkodny. Also present was

-18-

 Officer Robert Javick. The statement was recorded for sound and transcribed. In the transcript,
it indicates that Miranda wamings were given to Ms. Lodzinski at the beginning of the interview.
The interview concluded at 6:42 p.m. In this interview, Ms. Lodzinski indicated that she was
approached at the car ride by a woman named Ellen, who she knew as a customer of the Amboy
Madison bank when Michelle worked there as a teller. Ellen was accompanied by two men and
a little girl. Ellen volunteered to watch Timothy while Michelle went to buy a soda at the
concession stand. When Ms. Lodzinski retumed to the area of the kiddie rides, Timothy, Ellen,
the two men and the little girl were gone. Ms. Lodzinski said she had not provided these
additional details about the abduction in her initial statement on May 26th because she did not
want to get in trouble for leaving Timothy with someone she did not know and she was afraid
that the two men might do something to Timothy.
Statement 5, June 8, 1991
This statement was recorded by Fred Bruno, Michelle Lodzinski's forrner
boyfi-iend, and was not transcribed. Bruno had contacted the Sayreville Police on June 7th, and
said that Michelle had some additional information about the abduction. Bruno met with two
Sayreville police officers on June 7 at an Old Bridge shopping center at the same time that Ms.
Lodzinski was giving her recorded statement at the Sayreville police station on the same day.
Bruno agreed to wear a wire and record conversations with Ms. Lodzinski. On the afternoon of
June 8, the day after Ms. Lodzinski's recorded statement on June 7, Bruno picked up Ms.
Lodzinski in his truck and drove her to a parking lot near Laurence Harbor beach. Ms. Lodzinski
told Bruno that what she had told the Sayreville police the day before was basically what had
taken place. She said she did not know where Timothy was and got frustrated with Bruno's
questioning of her, got out of his truck and refused to speak with him anymore about it.

-19-

 Statement 6, June 13, 1991
This statement was given to two New Jersey State Police officers at State Police
Division headquarters in West Trenton. This statement was not recorded and is described in a
report dated June 14, 1991 by NJSP Lt. Robert Capitan. The report indicates that prior to the
interview, Ms. Lodzinski was read and signed a rights waiver card. Ms. Lodzinski repeated the
details of her visit to the carnival. She said when she left Timmy with Ellen to put him on the car
ride, she gave Timmy the tickets and started to walk to the concession stand:
when the grey-haired man came up to her and put his left ann around her
shoulders. With his right hand, he showed her an open pocket knife and
made the following statement to her. "Timothy is a cute kid. He has a
real pretty face. It would be a shame to have anything happen to that
face. You had better just keep walking and shut up." Michelle said she
was scared but thought the man was joking. She turned around, saw Tim
still standing at the ride. She continued to walk to the confectionary
stand, purchased a soda for herself and then returned to the ride where
last she saw Tim. Finding that all persons had left the area, she began her
personal search for him.
Statement 7, June 13, 1991
After the Sayreville police drove Ms. Lodzinski back from State Police
Headquarters on June 13, they bought her to the Sayreville police station to give them another
statement starting at 8:45 pm and continuing until 9:06 pm. Ms. Lodzinski was read her rights
and the statement was recorded for sound and transcribed. Ms. Lodzinski repeated what she had
told the State Police earlier in the day. She added that when the older man put his ann around
her shoulder and threatened her with a knife, he also said that if she kept her mouth shut and kept
walking, she might see Timothy in a month and that she might get a phone call. Sgt. Sloan asked
her:

-20-

 Q. Michelle, would you tell us please why it has taken a series of successive
interviews to bring out all of this additional information pertaining to the
disappearance of Timothy?
A. I was afraid to say anything. I didn't want him to hurt him. They made a
threat, and I dont want him to hurt him. And if I said I was gonna get a phone
call in a month and that Timmy would be back in a month, the police would be at
my house and I might not get him back.
After giving this statement, Michelle Lodzinski had a nervous breakdown
and was taken to the emergency room of South Amboy Memorial Hospital on the night
of June 13, 1991 by Officer Javick and her sister-in-law. The Hospitals Emergency
Services Intake Record includes the following notes:
Pt. [Patient] presented to the E.R. via sister-in-law and friend to speak to a
counselor. Upon arrival to the E. R. patient began to hyperventilate.
Patient was immediately taken care of by the E.R. staff. Dr. Puri, E.R.
physician, medicated patient with 12 mg of valium over a 30 minute
period. Patient related to this worker that today at 9:00 am State Police
presented to friend's home, where she has been living for the past several
days and brought her in for questioning. At approximately 4:30 pm,
patient stated she was taken by Sayreville Police to their headquarters and
once again questioned. Patient admits to retuming to her home in South
Amboy at 9:00 pm where she proceeded to phone sister-in-law and Bob,
new ffiend. Upon arrival to patient's home, Bob and sister-in-law found
patient crying and hyperventilating, immediately patient was brought to
the E.R. Patient stated to this worker, "They think I did something to
Tinuny. I'd never hurt my son." Patient stated feeling very angry and
"wishing everything was over with." When asked if patient had thoughts
of hurting herself, she said, "To hurt myself would let them know that I'm
taking the easy way out." About two weeks ago patient's five year old
son was found missing at a Sayreville camival. (See attached picture and
description). Recently, patient has been staying with her friend Bob and
his wife in North Brunswick, because she cannot stay at home or in the
town of South Amboy, "People are talking about me saying I did
something to him," patient stated. Patient has known Bob for the past

-21-

 seven years, Bob and patient's brother-in-law are best friends. Bob started
fearing for patient when patient is at her home she increasingly becomes
depressed, "Quite often she will visit Timmy's room when she is home."
Bob also stated that patient does not talk of Timmy too often but when
patient does talk about him she becomes more depressed and tearful
Recently, patient's boyfriend took patient out where they "went shopping
and had ice cream," according to Bob. Bob does not approve of boyfriend
because "He has not been supportive throughout this ordeal." Recently
Bob took patient shopping, according to him patient purchased items for
herself. When asked how patient pass her time she stated, "I really dont
do anything, I play with Bob's little girl." Friend states that patient enjoys
playing with his little girl, taking her for walks and watching TV with her.
Patient has the support of her family but feels more comfortable at friend's
home, "I talk to my mother on the phone. I hate going there, they all sit
around depressed."
State's Discovery, pp. 2532-34, Krovatin Cert., Exh C.
Ms. Lodzinski spent the night in the Hospital and was discharged the following
moming against the advice of Hospital doctors.
This statement captures the extreme emotional distress that Ms. Lodzinski was
under as a result of both the disappearance of her son and the repeated accusatory questioning by
the police. Her statements of June 13, 1991 to both the State Police and the Sayreville Police
were given under circumstances that demonstrate their unreliability and the coercive effect of the
repeated police interrogation.
Statement 8, June 18, 1991

This statement was taken by Middlesex County Prosecutor's Office Det. Mary
Robillard. The statement took place at Ms. Lodzinski's apartment in South Amboy. After initial
questioning, Ms. Lodzinski again became angry and upset at the police and terminated the
interview.

-22-

 Statement 9, October 30, 1991
This statement was made at Sayreville Police station after a sneaker was found on
Olympic Drive in Edison, in the vicinity where Timothy Wiltsey's remains were found six
months later. Ms. Lodzinski did not think initially that the sneaker was Timothy's because of the
configuration of the Ninja Turtle logos on the sneaker.
Statement 10, March 19, 1992
This interview was conducted at the office of Attorney Richard Kruger, who
briefly represented Ms. Lodzinski. No Miranda warnings were given. No transcript was made
of the interview.
Statement 11, April 21, 1992
This statement was taken by the FBI prior to the discovery of Timothy's remains.
Ms. Lodzinski was asked again to list her employers. She included Florida Fulfillment in
Raritan Center in Edison. This statement was not recorded or transcribed, but was described in
an FBI interview memo, which was transcribed on May 8, 1992, after the discovery of the
remains.
Statement 12, April 23, 1992
Ms. Lodzinski was brought in for questioning after partial remains of Timothy
were found that day.
The State cannot meet its burden to prove beyond a reasonable doubt that Ms.
Lodzinski 's statements were voluntary and that her will was not overcome by the police tactics
employed here while she was extremely emotionally distressed to the point of being hospitalized.
Accordingly, the Court should suppress those statements.

-23-

 IV. THE INDICTMENT SHOULD BE DISMISSED BECAUSE THE
STATE VIOLATED THE DEFENDANT'S RIGHT TO DUE
PROCESS OF LAW BY WAITING 23 YEARS TO SEEK HER
INDICTMENT
The State violated Michelle Lodzinski's right to due process under the Fifth and
Fourteenth Amendments by waiting 23 years after Timothy's disappearance to indict her. The
indictment should be dismissed, or, at a minimum, the State must explain its delay. Due process
is violated when a delay between an alleged crime and its indictment: 1) prejudices the defense;
and 2) results from prosecutorial impropriety.

See United States v. Lovasco, 431 U.S. 783, 789-

90 (1977). In New Jersey, though the "ultimate burden of persuasion on both issues rests upon
the defendant," the State "is obligated to go forward with the evidence showing that there was a
legitimate reason for the delay once the defendant has shown prejudice." State v. Roundtree, 118
N.J. Super. 22, 29 (App. Div. 1971); see also State v. Cichetto, 144 N.J. Super. 236, 237-38
(App. Div. 1976).
The "prejudice" element is fairly well defined, but courts do not agree on the
applicable standard for the prosecution's state of mind in causing the prejudice. First, the
accused must show actual prejudice. United States v. Marion, 404 U.S. 307, 323 (1971). But
whether the second element requires a showing of intentional prosecutorial misconduct, reckless
disregard, or mere negligence is an unsettled issue of Supreme Court jurisprudence. Compare,
e.g., United States v. Gouveia, 467 U.S. 180, 192 (1984) (delay must be "a deliberate device to
gain an advantage") with United States v. $8,850, 461 U.S. 555, 563 (1983) (delay must be "in
reckless disregard of its probably prejudicial impact upon the defendant's ability to defend"). So
too in New Jersey. See State v. Townsend, 186 N.J. 473, 487-88 (2006) (quoting both the
Gouveia and the $8, 850 standards, stating Gouveia standard, then reasoning element unsatisfied

-24-

 because State had "reasonable basis" for delay); State v. Alexander, 310 N.J. Super. 348, 355
(App. Div. 1998) (assuming due process violation "may be established by undue pre-indictment
delay even though the cause of the delay is solely the negligence of the police or the
prosecutor"); State v. Aguirre, 287 N.J. Super. 128, 135-36 (App. Div. 1996) (same).
By the State's own admission, the only evidence that has been newly discovered
since 1992 was Jennifer Blair's identification in 2011 of a blue blanket, which was recovered in
the general vicinity of the remains of Timothy in April 1992. Jennifer Blair, who described
herself as a frequent babysitter for Timothy, was shown the blanket in 2011, 20 years after it was
recovered. No good reason has been offered by the State why the blanket was not shown to Ms.
Blair in 1992 or shortly thereafter. In fact, the only explanation that was offered to the grand
jury was the following:

Q.

Now did it appear to you, through the course of your investigation, that
soon after being discovered at Raritan Center, many of the items that were
recovered, if not all, were sent to the FBI lab in Quantico for — forensic
analysis?

A.

Within days, yes, sir.

Q.

And that could explain why all these items weren't shown to people close
to Michelle?

A.

Yes.

Q.

In the days after the recovery?

A.

Yes, sir.

-25-

 Grand Jury Tr., 175:2 — 12.
By his own admission, Sgt. Crocco was speculating that the 20-year delay in
showing the blanket to Ms. Blair "could have been" because it was sent to the FBI lab in 1992,
as improbable as that sounds. More importantly, Sgt. Crocco contradicted his own speculative
testimony moments later when he confinned that, even though the blanket was sent to the FBI in
1992, it was returned that year because it was then shown to Ms. Lodzinski and her mother:

Q.

Now the blanket that was recovered at — at Raritan Center on April 23 rd, 1992,
based on your review of some of the facts, at some point was that shown to
Michelle Lodzinski and her mom, Alice, in 1992, after it was recovered?

A.

Yes, sir.

Q.

And they both failed to identify that blanket?

A.

That's correct.

Q.

As part of your investigation, at some point, did you actually speak to Michelle
Lodzinski, where she resides in Florida?

A.

Yes.

Q.

At that point, did she indicate that she had previously been shown that blanket by
law enforcement?

A.

Yes.

Grand Jury Tr., 176:14 — 177:4.
Thus, the State has offered no credible explanation why the blanket was shown to
Ms. Lodzinski and her mother, but not shown to Ms. Blair 20 years ago.
As set forth in the accompanying certification of William Vogel, an Investigator
for the Public Defender's Office, the State's needless and unexplained delay prejudiced the
defense because critical witnesses have died or become unavailable in the last 24 years. See
Certification of Investigator William Vogel, July 10, 2015. They include:

-26-

 • Carol Macko: Ms. Macko worked for the camival at JFK park on May 25, 1991, the

night of Timmy's disappearance. She told police she saw two white males and a white
female with a small boy at the carnival on the night of Timothy's disappearance. Ms.
Macko stated she encountered this group three times, and the third time the boy was
missing. According to obituaries, Ms. Macko has died. Ms. Macko's testimony could
have con-oborated Ms. Lodzinski's statement to the police that Timothy was abducted by
two while males and a female named Ellen.

• Mary Fulcinti: Ms. Fulcinti also worked at the carnival on May 25, 1991. She told
police she saw a "youth wearing red shorts being led away by a white male between 28
and 29 years of age" on the night of Timothy's disappearance. Inv. William Vogel from
the Office of the Public Defender has exhausted his resources and is unable to locate
Fulcinti.

• Holmes Protection, Inc.
o Records: This companys guards continuously patrolled the area of Raritan
Center, where Timothy's remains were ultimately located, at the time of his
abduction on May 25, 1991. The State's theory obviously is that Ms. Lodzinski
disposed of Timothy's body during the afternoon of May 25, 1991 before she
appeared at the carnival at approximately 7:00 p.m. that evening. Under the
State's theory, Lodzinski disposed of the body in broad daylight on a hot and
humid aftemoon at Raritan Center in an area that was constantly patrolled by
Holmes Protection's guards. The Sayreville Police were well aware of the
existence of the guards and, while police reports reflect that some of these guards
were interviewed, no reports appear to have been generated and/or preserved.
Three of the guards have died or are incapacitated:
o John Benson: Benson patrolled during the week after Timothy's disappearance.
2673. He has since suffered a stroke and remembers little from this period.
o Earle Lambdin: Lambdin patrolled on the night of Timothy's disappearance and
the following night. According to public records, he has died.
o Fred Meixner: Meixner patrolled on the day of Timothy's disappearance.
Records indicate he has died.
Id
The State's delay violates duc process and wan-ants the Indictment's dismissal. First,
Defendant's case was prejudiced by the State's delay several times over as described above.
Second, the delay was, at best, reckless and unexplained. The only significant evidence the State
has obtained since 1992 is Jennifer Blair's (uncroborated) identification of the blue blanket.

-27-

 But the blanIcet was found in April 1992 and there is no reason whatsoever the State could not
have shown it to Ms. Blair before June 2011, when they finally did. The needless passage of
twenty-three years badly prejudices the defense.
Giving the State the benefit of every doubt, there can be no serious argument they
did not act in reckless disregard of prejudice to Defendant's case. If this Court requires, as have
others, only a showing of reckless disregard or negligence by the State, then the due process
violation is already established and the Indictment must be dismissed. See Alexander, supra, 310
N.J. Super. at 355; Aguirre, supra, 287 N.J. Super. at 135-36.
Even if this Court applies the strictest standard available for the second element,
that the accused must show the delay was a deliberate attempt to prejudice the defense, the State
still must explain its delay since the Defendant has established prejudice. The law is clear that
where, as here, prejudice is shown, the State must produce "evidence showing that there was a
legitimate reason for the delay." Roundtree, supra, 118 N.J. Super. at 29; Cichetto, 144 N.J.
Super. at 237-38.

-28-

 V. DR. SHUSTER'S AUTOPSY REPORT, DR. NATARAJAN'S
REPORT, AND DR. NATARAJAN'S DERIVATIVE TESTIMONY
ARE ALL INADMISSIBLE UNDER THE CONFRONTATION
CLAUSE OF THE SIXTH AMENDMENT AND THE NEW JERSEY
CONSTITUTION
Under the now well-established line of cases that has evolved since the U.S. Supreme
Court's decision in Crawford v. Washington, 541 U.S. 36 (2004), Dr. Shuster's autopsy report is
inadmissible under the Sixth Amendment's Confrontation Clause because it is testimonial, Dr.
Shuster has since died and Ms. Lodzinski had no prior opportunity to cross-examine Dr. Shuster.
Dr. Natarajan's report merely adopts and repeats Dr. Shuster 's conclusions without having
performed an autopsy herself and is based on a self-serving summary of the States theory of the
case and its version of the facts in a memorandum by Sgt. Crocco, which is itself an improper
basis for an experts opinion under N.J.R.E. 703. Thus, Dr. Natarajan's report and testimony are
also inadmissible under the Confrontation Clause.
A. Dr. Shuster's Autopsy Report is Inadmissible under the
Confrontation Clause Because It Is Testimonial and Dr. Shuster
Cannot Be Cross-Examined.
The Sixth Amendment to the United States Constitution, applicable to the States
through the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403 (1965), grants criminal
defendants the fundamental right "to be confronted with the witnesses against [them]." U.S.
Const., Amend. VI. New Jersey's Constitution grants the same right. N.J. Const., Art. I, 11 10.
Thus, "if an out-of-court statement is testimonial in nature, it may not be introduced against the
accused at trial unless the witness who made the statement is unavailable and the accused has
had a prior opportunity to confront that witness." Bullcoming v. New Mexico, 131 S. Ct. 2705,
2713 (2011) (emphasis added); see also Ohio v. Clark, 576 U.S.

, 5 (2015). When the

Supreme Court announced this contemporary reading of the Confrontation Clause in Crawford v.

-29-

 Washington, 541 U.S. 36, 68 (2004), the Court specifically left "for another day any effort to
spell out a comprehensive definition of testimonial.'"
To determine whether a statement is testimonial, courts consider the statements
primary purpose. Where that purpose is "to prove past events potentially relevant to later
criminal prosecution," the statement is testimonial. Davis v. Washington, 547 U.S. 813, 822
(2006). Statements "`made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial'" are also
testimonial.

Crawford, 541 U.S. at 51-52 (quoting another source). Statements involving

judgment are more likely testimonial. See Bullcoming v. New Mexico, 131 S. Ct. at 2714
(statements "relating to past events and human actions not revealed in raw, machine-produced
data, are meet for cross-examination"). By contrast, statements are not testimonial when their
primary puipose is "to enable police assistance to meet an ongoing emergency." Davis, 547 U.S.
at 822.
Dr. Shuster's autopsy report is clearly testimonial and triggers Ms. Lodzinski's
right to confrontation.4 No case binding on this Court has addressed whether autopsy reports are
categorically testimonial, see State v. Williams, 219 N.J. 89, 97, 101 (2014) (declining to reach
this issue because defendant did not object to surrogate medical examiner' s testimony at trial).
However, it is clear that Dr. Shuster's autopsy report, or any autopsy report, is
testimonial under the primary purpose test. The primary purpose of any autopsy is to determine
cause and manner of death and to identify the perpetrator of a murder, if one has been
established. Dr. Shuster prepared his report after Timothy Wiltsey's body was found, some
eleven months after he disappeared. Dr. Shuster plainly conducted the autopsy to assist the State

4

See Autopsy Report, Marvin Shuster, M.D., finalized July 1, 1992, Krovatin Cert., Exh. D.
-30-

 in prosecuting its case and to provide the basis for an eventual homicide charge. Furthennore,
there can be no question that a reasonable medical examiner in Dr. Shuster's position would have
known that his autopsy report would be "available for use at a later trial." See Crawford, 541
U.S. at 51-52. The autopsy report, then, was intended as an accusatory instrument from its
inception. It is, therefore, testimonial and triggers Defendant's right to confrontation.
Because Dr. Shuster died before the State charged Ms. Lodzinski, the
methodology he employed and the conclusions he reached can no longer be tested in the
"crucible of cross-examination," as the Constitution requires. See Crawford, 541 U.S. at 61.
The State may not prove a crucial element of its charge, that Timothy Wiltsey's death was a
homicide, N.J.S.A. 2C:11-3, with the untested opinion of an absentee witness. Thus, the autopsy
report' s admission is barred by the Confrontation Clause.
B.

Dr. Natarajan's Report is Inadmissible Because It Relies on Dr.
Shuster's Report and Its Admission without Dr. Shuster's
Testimony Would Deprive Defendant of Her Confrontation Right

Dr. Natarajan's one-and-a-half-page report, summarily concurring with Shuster's,
likewise runs afoul of the Confrontation Clause.5 If having one witness repeat another's
statements were enough to circumvent a defendant's confrontation rights, then those rights
would have little meaning. See Davis, 547 U.S. at 826 ("[W]e do not think it conceivable that
the protections of the Confrontation Clause can readily be evaded by having a note-taking
policeman recite the unsworn hearsay testimony of the declarant, instead of having the declarant
sign a deposition."); State v. Weaver, 219 N.J. 131, 151 (2014) (The Confrontation Clause
generally forbids admitting testimony of a witness who directly or indirectly provides

See Letter, January 29, 2015, Geetha Ann Natarajan, M.D. to Scott LaMountain, Assistant
Prosecutor, Krovatin Cert., Exh. E.

5

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 information derived from a non-testifying witness that incriminates a defendant at trial."). The
Supreme Court has held that testimony of an absent analyst cannot be put into evidence through
the testimony of a second analyst where that second analyst did not participate in or observe the
underlying examination.

Bullcoming, 131 S. Ct. at 2710 ("The accused's right is to be

confronted with the analyst who made the certification . . . .") (emphasis added). Because Dr.
Shuster's autopsy report is testimonial, Dr. Natarajan's endorsement thereof is inadmissible. The
true witness against Ms. Lodzinski, whom the Sixth Amendment gives her a fundamental right to
confront, remains Dr. Shuster. Only Dr. Shuster could know how scrupulous he was in
poeforming the autopsy, whether he felt pressured to find Timothy's death a homicide, and, most
crucially, why he made that determination at all. The Confrontation Clause is not satisfied by
Dr. Natarajan's mere endorsement of otherwise-inadmissible testimony.
Last year, in a series of three cases, the New Jersey Supreme Court attempted to
clarify the applicability of the U.S. Supreme Court's recent Confrontation Clause cases. In State

v. Michaels, 219 N.J. 1 (2014), the defendant argued that the State should have been required to
call all 14 lab technicians who actually performed the tests on the blood samples at issue. The
State relied instead at trial on the testimony of Dr. Barbieri, who supervised those very lab
technicians, was familiar with the lab equipment that they used and reviewed their work product,
methodology and quality control data. The Supreme Court, consistent with the federal

Bullcoming decision, held that there was no confrontation violation in Dr. Barbieri's use of nontestimonial calibration and control data in preparing his report or in his discussion about the data
in his testimony. The Court held that a "truly independent reviewer or supervisor" can testify
about machine-generated data and his conclusions about that data without violating a defendant's
confrontation right.

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 In Michaels, the Supreme Court recognized that the use of a surrogate witness,
such as Dr. Natarajan here, to testify about the procedure actually performed by an unavailable
witness, did not pass muster under the Confrontation Clause. The Court stated:
With cross-examination concems in mind, the [U.S. Supreme Court in
Bullcoming] concluded that the surrogate witness did not satisfy the
defendant's confrontation rights because the surrogate's testimony "could
not convey what Caylor knew or observed about the events his
certification concemed, i.e., the particular test and testing process he
, 131 S.Ct. at 2715, 180 L.Ed.2d at 622 (footnote
employed." Id. at
omitted). Simply put, the suntgate
did not certify the report or perform or
✓
observe the tests and, therefore, cross-examination of the surrogate would
not satisfy the defendant's confrontation rights.
Michaels, supra, 219 N.J. at 22; see also Agha v. Feiner, 198 N.J. 50, 65-67 (2009)
(differentiating between "straightforward observations" contained in expert reports that may be
admitted for their truth without an opportunity for cross-examination of the declarant, and
statements of "diagnosis" "critical to the primary issue in the case" which may not be).
The second of the Supreme Court's 2014 Confrontation Clause trilogy of cases
was the appeal of this Court's rulings in State v. Roach, 219 N.J. 58 (2014). There, the Supreme
Court found no constitutional violation and extended the Michaels analysis and results to an
"independent reviewer," who reviews machine generated testing processes and results - there,
the DNA profile of a perpetrator generated from swabs taken from the victim - and compared
them to her own profile of the defendant's DNA in order to compare the two and form her own
opinion about the statistical probability of a match. There, Justice La Vecchia stated for the
Court:
If an independent reviewer, who is not a supervisor but who is trained in
the testing and is knowledgeable about the laboratory's processes and
protocols, testifies based on his or her independent review of raw data and
the conclusions that he or she has drawn fi-om that data, then it is logical to
apply the reasoning from supervisor-testimony holdings to such a case.
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 However, the testimony must be provided by a truly independent and
qualiffed reviewer of the underlying data and report, and the witness may
not merely parrot the findings of another.

Id., at 79.
In the third 2014 case, State v. Williams, 219 N.J. 89 (2014), the Supreme Court
came closest to the facts in this case. There, in an appeal from a murder conviction, the
defendant claimed that his confrontation right was violated when a medical examiner, who did
not conduct the victim's autopsy, testified about both his own and the absent medical examiner's
findings. At trial, defendant raised no objection to the testimony of the medical examiner
presented by the State Indeed, he cross-examined the medical examiner, eliciting information
seemingly consistent with his defense. Justice Albin, who vigorously dissented in Michaels and

Roach, wrote for the Supreme Court, and found that the defendant had waived his Confrontation
Clause objection and affirmed his conviction, without reaching the merits of his objection.
Here, Dr. Natarajan was neither the supervisor of the person (Dr. Shuster) who
conducted the original procedure and generated the original data, as in Michaels, nor was she a
truly "independent reviewer," who reviewed machine generated raw data from "laboratory
processes and protocols" in which she is knowledgeable and trained, as in Roach. More
importantly, there is a world of difference between the laboratory-based, machine-generated data
in those cases and Dr. Natarajan's use of and reliance on the narrative description generated by
Dr. Shuster about his physical examination of the autopsy specimens in this case and his
subjective conclusions about them. There is increased confidence in the inherent reliability of
machine-generated laboratory data that is not present when a physician relies on the analytical
and interpretive skills of another colleague's subjective observations and interpretations, as in

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 this case. See Agha v. Feiner, supra. Dr. Natarajan's position in this case is much closer to the
"sunpgate" whose testimony was disallowed in the Bullcoming case.
If Dr. Natarajan is permitted to testify about the autopsy of Timothy Wiltsey and
express an opinion based on that autopsy, that the marmer of Timothy's death was homicidal,
Ms. Lodzinslci will have been deprived of the right that the federal and State constitutions give
her to confront and cross-examine the person who conducted the subjective, visceral examination
upon which that conclusion is based. The Shuster and Natarajan reports should be suppressed
and Dr. Natarajan should not be permitted to testify about them.
C.

Dr. Shuster's Report, Dr. Natarajan's Report, and Dr. Natarajan's
Derivative Testimony as to the Manner of Timothy's Death Are
Also Inadmissible under the "Net 0_pinion" Rule

The "net opinion" rule prohibits experts from testifying to "bare conclusions,
unsupported by factual evidence." Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). There
"must be a factual and scientific basis for an experts opinion," because "[a]n opinion lacking in
foundation is worthless." Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 539 (App. Div. 1996).
An expert witness is required to "give the why and wherefore of his expert opinion," lest he or
she cease "to be an aid to the trier of fact and become nothing more than an additional juror."
see also Rosenberg v. Tavorath, 352 N.J. Super. 385, 400-01 (App. Div. 2002).
The net opinion rule precludes the admission of Dr. Shuster's autopsy report, Dr.
Natarajan's report, and all derivative testimony by Dr. Natarajan, because neither report contains
any analysis - the why and wherefore - that would support a conclusion that Timothy's death was
a homicide. The "opinions" of both Drs. Shuster and Natarajan are net opinions — unfounded
and unexplained Because these reports feature unfounded conclusions, they are worthless and

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 inadmissible. So, too, for Dr. Natarajan's derivative testimony. Thus, the Court should exclude
all three net opinions.
D.

Dr. Natarajan Should Not Be Permitted To Testify To Any Facts,
Conclusions, or Opinions Based on The Investigative Report of
Sgt. Crocco and Her Report Should Be Stricken Because of Its
Reliance On That Report

In her report, Dr. Natarajan indicated that one of the items that she reviewed in
reaching her conclusions and forming her expert opinion was an Investigative Report of Sgt. J.
Scott Crocco, dated August 11, 2014. See Natarajan Report, Krovatin Cert., Exh. E.
Sgt. Crocco's report was prepared after the Indictment was retumed in this case.
It is an overview and a summary of how the case was reopened in 2011, what witnesses were
interviewed and re-interviewed and how the Prosecutor's Office came to the decision to seek an
indictment in the case.

The report is full of inadmissible hearsay, self-serving and self-

congratulatory statements and observations, and the conclusions and opinions of Crocco and
others about the potential evidence in the case. It reads more like a "prosecution memo" that an
Assistant Prosecutor might prepare for his or her supervisors when making a determination
whether to seek an indictment in a case.
What Crocco's memo certainly is not is the kind of "facts or data . . . of a type
reasonably relied upon by experts in the particular field in forming opinions or inferences." See
N.J.R.E. 703. Crocco's memo is not in any way similar to a learned treatise, to machinegenerated laboratory data, or to the reliable opinion of another expert in the field of forensic
pathology.

 For Dr. Natarajan to testify in reliance on and with reference to Sgt. Crocco's
report would amount to the State bootstrapping its theory of the case and presenting it to the jury
in the guise of a medical doctors expert opinion.
Dr. Natarajan's report and her anticipated testimony in reliance on Sgt. Crocco's
report violate Rule 703 and should be baned.

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 VI. THE COURT SHOULD CONDUCT A DRIVER HEARING
TO DETERMINE THE AUDIBILITY AND ADMISSIBILITY
OF ALL TAPE AND AUDIO RECORDINGS OFFERED BY
THE STATE
Defendant requests a hearing, pursuant to State v. Driver, 38 N.J. 255 (1962), to
determine the audibility and admissibility of all tape and audio recordings, including statements
given to law enforcement.
The Court has a mandatory duty to test admissibility of statements, not only by
ordinary rules of evidence, but by the deeper constitutional requirement of fundamental faimess.
U.S. Const. Amend. 14; see also Driver, 38 N.J. 255 (1962). Where the matter contained in
sound recordings is competent and relevant, and the speaker in the recording is identified, the
following four conditions must be satisfied. First, the recording device must have been capable
of taking the proffered conversation or statement. Second, the operator of the recording device
was competent. Third, the recording must be authentic and correct. Fourth, the recording must
be without changes, additions, or deletions. Id. at 287. Additionally, in instances of alleged
confessions, the statements must have been "elicited voluntarily and without any inducement."
Id. When an audio recording is played during the Driver hearing, the State is also required to
provide written transcripts which are part of the record. State v. Greco, 187 N.J. Super. 421
(App. Div. 1982).
The determination as to the admissibility of audio recordings is a matter left to the
sound discretion of the trial judge. State v. Zicarelli, 122 N.J. Super. 225, 240 (App. Div. 1973);
see also Driver, supra at 288 ("the trial judge should listen to the recording out of the presence
of the jury before allowing it to be used. In this way he can decide whether it is sufficiently
audible, intelligible, not obviously fragmented, and, also of considerable importance, whether it
contains any improper and prejudicial matter which ought to be deleted.")

-38-

 In judging the aural quality of the tape, the Driver court emphasized, "If you cant
hear it, you cant hear it." Id.
Although a Defendant has the right and opportunity to waive the Driver hearing,
State v. King, 215 N.J.Super. 504, 516 (App.Div.1987), the facts and circumstances in the case at
bar likely warrant a pre-trial decision as to the admissibility of the recordings. Specifically, the
recordings the State seeks to admit into evidence at trial were created nearly twenty-five years
ago, with technology no longer employed by most law enforcement. In light of the foregoing,
Defendant respectfully requests and/or preserves the right to a Driver hearing prior to trial to
determine the admissibility and authenticity of the State s tape and audio recordings.

CONCLUSION
For the foregoing reasons, Defendant submits that the Court should dismiss the
Indictment, or, in the alternative, grant the alternative relief requested by the Defendant.
Respectfully submitted,
KROVÀ TIN KLINGEMAN LLC
By:

i)
Ge ald Krovatin
60 • ark Place, Suite 1100
N wark, New Jersey 07102
Attorneys for Defendant

Dated: July 10, 2015

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