May 17, 2017
The defense rested its case Wednesday morning in the murder trial of David "DJ" Creato after less than an hour of testimony.
Seven character witnesses – all friends and family members – spent a total of about 30 minutes on the witness stand testifying that the 23-year-old defendant was peaceful and honest, but not adding much else.
Not a single "fact witness" was called by Creato's lawyer, Richard J. Fuschino Jr. of Philadelphia.
Creato is charged with first-degree homicide and second-degree child endangerment in the October 13, 2015 death of his three-year-old son, Brendan.
Camden County Superior Court Judge John T. Kelley, denied Fuschino's request at the end of testimony for an acquittal on both murder and child endangerment charges – a standard defense request – saying the jury can reasonably decide Creato's fate based on the testimony.
Fuschino had pointed out none of the three medical examiners who examined the three-year-old's body, discovered on a rock in a stream about a half a mile from the home he shared with his father in the Westmont section of Haddon Township, "could say how Brendan was killed" or that "DJ Creato was the one who killed him."
The judge acknowledged "it is a circumstantial case," but in rejecting Fuschino's argument said all three of the medical examiners had agreed the case was a homicide.
The judge's decision on the dismissal request paves the way for next Tuesday morning, when the prosecution and defense will sum up their cases in closing arguments. Then the judge will review the charges and issue instructions to the jury of 11 women and three men.
Earlier Wednesday, the prosecution closed out its case with testimony from the lead Camden County investigator about cellphone use by Creato, who was then 21, and his then-girlfriend, college student Julia "Julie" Stensky, who was then 17, the nude photos and flirty Snapchat messages she sent to another guy at her college.
Detective Michael Rhoads read a Snapchat exchange from Oct. 17, 2015 – four days after the toddler was found dead – between Stensky and a fellow student at Pace University in New York City.
Stensky asked the student, identified as Giovanni, "Did you like my boobs?"
The student responded: "Hahah!" And then added yes.
Rhoads, responding to Fuschino, acknowledged there were nude photos of Stensky on Creato's phone.
That raises an issue not addressed during the trial: While it is legal for a 17-year-old to have sexual relations with an adult in the state of New Jersey, possession of a nude photo of anyone under the age of 18 by an adult can potentially be termed child pornography, subject upon conviction to registration as a Megan's Law offender.
Testimony, texts and social media messages show Creato was jealous of the attention Stensky was paying to her Pace friend. In fact, it was the subject of numerous heated messages between Creato and Stensky.
Ironically, Giovanni had trouble keeping track of which "Julie" he was exchanging messages with, at one point confusing her with another student of the same name, Rhoads testified.
The Camden County Prosecutor's Office alleges that Creato killed his son to maintain his relationship with Stensky.
Fuschino, in cross examination, said Rhoads was "smearing" Creato by alluding to nude photos of Stensky on his client's cellphone.
The judge cut his off questioning after an objection by Assistant Camden County Prosecutor Christine Shah.
The prosecution, without DNA or any eyewitnesses, has relied on cell and social media messages and data, the unlikelihood that a child afraid of the dark wandered more than half a mile, that his socks were clean, and the finding of homicide, though by unknown means.
First-degree homicide carries a penalty of 30 years to life. Second-degree child endangerment punishment is a maximum of 10 years.
A plea of 35 years – meaning Creato would actually serve 30 years – was rejected before the trial began.