NEW BRUNSWICK -- Attorney Gerald Krovatin's major argument to the jury to acquit his client, Michelle Lodzinski of the 1991 murder of her son, Timothy Wiltsey, 5, is that there is no direct evidence linking her to the crime.
The prosecutors agree.
They are relying on circumstantial evidence to weave their story of a woman struggling as a single mother who ended up killing her son -- and dumping his body in a drainage ditch in a remote area of Raritan Center in Edison, not far from where she worked two years earlier.
Krovatin dismissed circumstantial evidence and has asked the jury, now deliberating his 48-year-old client's fate, to do the same.
But experts say while it may be more difficult to get a conviction, especially in this day with shows like CSI, NCIS, Criminal Minds and Law & Order where investigators and prosecutors always seem to have eyewitnesses and forensic evidence, circumstantial evidence can be very effective.
Circumstantial evidence does not directly link the defendant to the crime, but does so indirectly. When judges explain the law to jurors they usually give the definition of circumstantial evidence as -- if you go to sleep at night and there is no snow, but you wake up in the morning and there is snow on the ground, you can infer it has snowed, even though you didn't seen it snow.
Direct evidence is a confession by the defendant, eyewitness testimony, or forensic evidence such as fingerprints any trace evidence that directly links the defendant to the crime or the crime scene.
"It is up to the jury," said George Thomas, a professor of law at Rutgers Law School in Newark. "Circumstantial evidence can be less probative (effective at providing proof) than direct evidence in many cases, but it is up to the jury. What it turns on is the inference they draw from the evidence they are presented with."
In the case of Michelle Lodzinski, where, in the days following her son's disappearance on May 25, 1991, she gave police several different versions of how her son went missing, Thomas said, "that could be very suspicious."
"But, you don't know what else was going on in her life at the time," he said. "It would be up to the jury to draw an inference from that."
Louis Raveson, also a professor of law at Rutgers Law School in Newark, disagreed with Wilson that circumstantial evidence was less probative.
"Circumstantial evidence is often more probative than direct evidence," Raveson said. "Witnesses are extremely fallible. They don't remember correctly or they don't remember or they're just lying. There isn't forensic evidence in every case. You can't just make a blanket statement about circumstantial evidence."
Timothy Wiltsey's skeletal remains were found 11 months after his mother reported him missing. Investigators found 11 bones, including his skull.
Experts, including the medical examiner, testified during the nearly three-month-long trial in New Brunswick that lack of soft tissue and exposure to the elements made it impossible to determine how the child died.
With his remains, investigators also found a blue blanket, sneakers matching the description of the sneakers Timmy was wearing when he disappeared, a balloon with the same cartoon characters, Teenage Mutant Ninja Turtles, and a pillow case. They also found remnants of red shorts near his bones. He was reported wearing red shorts when he disappeared.
Raveson said you may need more circumstantial evidence than direct evidence to gain a conviction, but he agreed with Wilson --"it really has to do with the jury."
"Jurors are making judgments about human behavior," Raveson said. "Would they behave as she did? There is a lot of room for error. "
He said there is a big difference between direct and circumstantial evidence.
"You only need one witness with direct evidence," Raveson said.
Lodzinski became a prime suspect in her son's disappearance shortly after he went missing, but was not charged until in August 2014 with her son's murder after the Middlesex County Prosecutor's Office reopened the cold case in 2011. Three people identified the blue blanket found with Timmy's remains as coming from Lodzinski's apartment in 1991.
She originally told police she went to get soda at a concession stand at a carnival at Kennedy Park in Sayreville and he was standing about eight feet from her. She said she turned to pay for her soda and when she turned around, he was gone. His disappearance sparked a massive, nationwide manhunt.
Prosecutors presented testimony that Lodzinski was in line at the concession stand, flirting with the guy behind the counter, but did not have a child with her the night of May 25, 1991. Other witnesses testified she did not have the demeanor of a woman whose child was missing--she was calm and even made officers stop at a bar so she could speak to her boyfriend when they took her home to get pieces of Timmy's clothing so a search dog could help get the boy's scent.
Within several weeks, Lodzinski changed her story, ending with that Timmy was abducted by a woman named Ellen, a go go dancer she knew when she worked at a bank, and two men.
Lodzinski has always denied any involvement in his disappearance or death.
The jury has been out since Thursday but has asked for testimony from about six witnesses to be reread to them. They will have three of the witnesses reread to them Monday morning before they return to deliberating.
They must decide among the charges of murder, aggravated manslaughter and manslaughter. Here's how the charges differ:
-- Murder is punishable by up to life in prison, and the state has to prove beyond a reasonable doubt that Lodzinski purposely and or knowingly caused the death or serious bodily injury resulting in the death of her son.
-- Aggravated manslaughter is punishable by up to 30 years in prison, and the state must prove that Lodzinski recklessly caused Timothy's death under circumstances manifesting extreme indifference to human life.
-- Manslaughter is punishable by up to 10 years in prison, and the state must prove that Lodzinski recklessly, or in the heat of passion, caused Timothy's death as a result of reasonable provocation.
Sue Epstein may be reached at sepstein@njadvancemedia.com. Follow her on Twitter @susan_epstein. Find NJ.com on Facebook.