In This Unusual Murder Case, Reconsideration Is the Correct Result

The Supreme Court’s recent grant of reconsideration in State v. Lodzinski has occasioned a great deal of comment as an extraordinary response to an unprecedented situation. The case is a high profile cold-case murder conviction of a defendant mother accused of murdering her then-five-year-old child 23 years ago. At the close of the state’s case, Lodzinski moved for judgment of acquittal, which was denied. After the jury convicted her of first-degree murder, the trial court denied her motion for judgment of acquittal n.o.v. based on the insufficiency of the evidence. The Appellate Division affirmed. While that court stated that Lodzinski had presented “substantial” evidence at trial that “in many ways rebutted” the state’s case, the panel looked only to the sufficiency of the state’s case without considering the impact, if any, of the defense’s evidence in refutation. On certification, the Supreme Court unanimously concluded that the correct legal standard for appellate review of a motion for judgment of acquittal n.o.v. is to consider all of the evidence, which the Appellate Division had not done. Chief Justice Rabner did not participate.

At that point, instead of remanding to the Appellate Division for reconsideration under the correct standard, the six justices proceeded to evaluate the sufficiency of the evidence themselves under that standard. Three justices concluded that the evidence was sufficient to convict and three that it was not. As a result, the judgment of the Appellate Division was affirmed per curiam by the equally divided court, under the rule of Abbamont v. Piscataway Twp. Bd. of Educ. that an affirmance by an equally divided Supreme Court constitutes the law of the case. The result was that Lodzinski’s conviction was upheld without a majority of any appellate court determining that the entire body of evidence was sufficient to support it. Lodzinski moved for reconsideration, and the court, with Judge Fuentes of the Appellate Division sitting as the seventh member by designation, voted 4-3 to rehear the case with a full court.