On May 26, 2021, the New Jersey Supreme Court decided the Middlesex County case of State v. Michelle Lodzinski. This case was typical of a modern “per curiam” opinion in which the Justices clearly had their own opinions and analysis but for some reason no one wanted to attach their name as the author.
“Per curiam” opinions are supposed to involve such a straightforward application of the law to the facts that there is no basis for an individualized analysis. This case was anything but a straightforward application as the judges were divided into two equal camps when the opinion issued.
Moreover, the case turned out to be a particularly complicated one. On October 6, 2021, the defense brought to the Court’s attention a failing in its prior handling of this matter, which required correction. She rightfully claims that the unique procedural posture of this Court’s decision left her appeal unconsidered under the proper legal standard, which, left uncorrected, works a violation of her due process rights. Defendant does not challenge an evidentiary ruling, the construction of a statute, or the meaning of an insurance policy provision. She challenges the very process by which the evenly divided Court addressed her conviction for first-degree murder. A motion for reconsideration was then granted and an additional judge was elevated from the Appellate Division to decide the case and break the 3-3 tie.
The original “per curiam” opinion from this past May contained a concurrence filed by Justice Patterson and joined by Justices Fernandez-Vina and Solomon. Justice Albin filed a dissent in which he was joined by Justices LaVecchia and Pierre-Louis, my former law school classmate at Rutgers. These two factions have solidified themselves as being pro-prosecution and pro-defense with regard to criminal cases before the New Jersey Supreme Court.
The May 26 opinion reads in relevant part: Defendant Michelle Lodzinski appeals the Appellate Division’s decision affirming her conviction of the first-degree purposeful or knowing murder of her five-year-old son. She challenges her conviction on two grounds. First, defendant contends that she was entitled to a judgment of acquittal notwithstanding the verdict under Rule 3:18-2 because the evidence presented was insufficient to support the jury’s verdict that she was guilty beyond a reasonable doubt. Second, defendant argues that she is entitled to a new trial pursuant to Rule 3:20-1 because the trial court dismissed a juror who contravened its instructions by conducting independent research, and replaced that juror with an alternate instead of declaring a mistrial.