June 15, 2017
Thom Carroll/PhillyVoice
David 'DJ' Creato, right, and his attorney Richard J. Fuschino Jr. sit in Camden County Superior Court during jury deliberations on Thursday, May 25, 2017, in Camden.
The jury deliberating a murder charge against David “DJ” Creato was at war with itself.
Jurors were so deeply divided after his 11-day trial that two factions sent competing notes to the trial court judge on May 31, the final day of deliberations, according to Juror No. 1, who wrote one of the notes. Minutes later, the case against a father charged with killing his three-year-old son was declared a mistrial.
It was a divided jury from the start.
In the first informal poll, the headcount was eight guilty, two not guilty and two undecided. In the end, the vote for conviction on the first-degree murder charge was repeatedly deadlocked at 10 to 2 – again and again and again, according to Juror No. 1, who as the first juror selected for the trial served as forewoman, meaning she conducted the polling of the jury. A child endangerment charge was never formally voted on by the panel.
Serving the criminal justice system for the first time in the Creato case, Juror No. 1 hopes it is the last time.
“I hope I never have to do jury duty again,” said the resident of Berlin in South Jersey, who is still unsettled by the “condemnation” directed at her by some fellow jurors. “I got pummeled.”
She asked not to be identified, but said she agreed to speak and provide a full account of what happened in the Jury Room after a previous media account about the deliberations relied on four jurors in favor of conviction.
A professional employee recruiter, the 58-year-old forewoman was a consistent vote for acquittal, along with one other woman on the panel of 12 regular jurors. The two alternates, who did not formally vote, were split, according to the forewoman.
One angry fellow juror even refused to walk with her and a sheriff’s deputy to the PATCO train line after leaving through a rear exit of the courthouse just after the mistrial, she said.
“They were angry. They hated me. I got yelled at. Screamed at. Told I had 'no validity,'” she said, adding the other juror pushing for Creato’s acquittal was perhaps even more adamant in her view that the state had failed to prove its case.
“In my mind, I made the right decision. When the prosecution was done with its case, we still didn’t know who did this, where it happened, when it happened or even why it happened,” she said.
“How does a 21-year-old create a perfect murder with no direct evidence? They spent a fortune on this case and that’s the best they could come up with?” – Creato Juror No. 1
DJ Creato was charged with first-degree murder in the Oct. 13, 2015 death of his three-year-old son, Brendan. The boy's body was found in a creek about a half mile from the apartment they shared in the Westmont section of Haddon Township. The trial began on April 20.
Juror No. 1 said she did not buy the prosecution’s theory that Creato killed his son to maintain a relationship with his girlfriend, Julia “Julie” Stensky.
“It doesn’t make sense," Juror 1 said. "He had too many other options.”
And while she sees Stensky, a Manhattan college student with a New York alibi, as both suspicious and unlikeable, she said the girlfriend was never really a focus of discussions during deliberations, despite the prosecution's attention to her.
The primary argument for conviction among the majority, she said, was basically this: If not Brendan's father, then who?
But Juror No. 1 felt there was no definitive evidence linking Creato to the killing other than his proximity to his son.
“How does a 21-year-old create a perfect murder with no direct evidence?” she asked, referring to Creato’s age at the time of the killing. “They spent a fortune on this case and that’s the best they could come up with?”
Camden County Assistant Prosecutor Christine Shah indicates the route taken by K-9 Officer Constance Nicholson and her dog on their search for Brendan Creato on the morning of Oct. 13, 2015.
The worst part of the prosecution’s case, in her view, was the work done by three medical examiners, but especially Dr. Gerald Feigin, a regional M.E. who covers Camden County.
“It was mess-up after mess-up after mess-up,” she said, adding she has since researched Feigin and discovered he has a history of questionable cases. “It reinforced my feeling.”
The forewoman also read the New Jersey Medical Examiner’s Act after her jury service and found Feigin had not done his job by failing to report to the scene where Brendan was found until days later. A scene visit is a requirement in suspicious deaths and for the deaths of children younger than three, according to the ME Act, she noted.
She also noted Feigin had missed things, such as a bite mark inside Brendan’s cheek.
“How do you miss that if you look? You don’t!” she said.
She was astonished Feigin had failed to use a rape kit and take internal samples from the body.
“You check everything. Everything,” she said, pointing to a failure by law enforcement investigators to send the boy’s pajamas to a lab for testing.
She also finds it telling that New Jersey Medical Examiner Dr. Andrew Falzon changed his finding from undetermined to homicide on the day before the trial began.
“Merry Christmas to the prosecutor!” she said.
“Incompetent, incompetent, incompetent,” she said of the three medical examinations of Brendan, none of which ever found an exact cause for his death.
While much time was spent by the prosecution on Creato’s and Stensky’s texts, calls and digital data – and their timing – nothing proved to be a smoking gun for her.
Still, Juror No. 1 praised the strong closing made by Assistant Prosecutor Christine Shah.
But she said she felt parts were embellished. For instance, Shah hammered away at a pillow as the murder weapon, something which was never introduced as evidence. The forewoman said some jurors convinced of Creato's guilt during deliberations were swayed by Shah’s closing.
Most jurors saw defense lawyer Richard J. Fuschino Jr. as arrogant, she added. While she thought he parried Shah's accusations well, she was startled he did not present more defense witnesses.
Judge John T. Kelley speaks to the jury during the murder trial of David 'DJ' Creato on April 20, 2017, at Camden County Superior Court in Camden.
It’s hard to know what to make of the opposing notes to the trial judge.
Superior Court Judge John T. Kelley never read the final notes into the record. And the original hand-written notes were ordered to be kept secret by order of Assignment Judge Deborah Silverman Katz, who denied a PhillyVoice request for their disclosure. While court procedure calls for a written explanation for any denial of records, none was provided by Katz.
With the dueling notes in hand, the judge “knew at that moment there was a war going on,” Juror No. 1 recalled.
That secrecy by the court makes Juror No. 1 suspicious.
The competing jury notes came on the fourth and final day of deliberations, Wednesday, May 31.
The simultaneous notes – a rarity since jury notes are by protocol sent to the judge strictly by the foreperson – signaled the jury was irrevocably hung.
With the dueling notes in hand, Kelley “knew at that moment there was a war going on,” Juror No. 1 recalled.
The note from jurors who believed Creato was guilty was authored by Juror No. 14, a nurse by occupation, according to Juror No. 1.
During the trial, Juror No. 1 and Juror No. 14, who sat at opposite ends of the box but in different rows, were clearly the most animated, shaking their heads and furrowing their brows as they listened to testimony.
At one point Juror No. 14 snapped at Kelley to keep playing a video of Creato’s police interview – evidence they viewed four times.
The note written by Juror No. 14 evidently accused the forewoman and the other female juror who favored acquittal of not doing their duty. The note, according to Juror No. 1, claimed the two holdouts were deciding Creato’s innocence based on “emotion.”
The note, signed by just seven of the 10 members in favor of convicting Creato, even argued that the position of the two holdouts had “no validity,” according to the forewoman.
Minutes before the notes went to the judge, the forewoman said she asked about the second-degree child endangerment charge, adding that she and her ally would not support a guilty verdict on that charge either. But no formal poll of the entire jury was ever made on that charge, said Juror No. 1.
Kelley dismissed the jury just minutes after getting the notes, setting in motion the likelihood of a retrial. The parties will meet July 5 before the judge.
