May 23, 2017
The fate of David "DJ" Creato is in the hands of a jury as of Tuesday afternoon.
Jurors were charged about 3:45 p.m. on the 11th day of the trial and had less than 30 minutes to discuss the case. They will resume deliberations at 9 a.m. Wednesday.
Summations by his defense lawyer and the prosecution came first, followed by instructions from the judge.
Creato, 23, accused of killing his son, Brendan, faces a first-degree murder charge, which carries a penalty of 30 years to life in prison, and a charge of second-degree child endangerment, which carries a maximum of 10 years.
The three-year-old boy was found dead on Oct. 13, 2015, his body placed on a rock in a stream leading into the Cooper River at a site just over a half a mile from the apartment father and son had shared in the Westmont section of Haddon Township.
Creato sat impassively as Camden County Assistant Prosecutor Christine Shah delivered her summation.
With her case dependent on circumstantial evidence not backed up by eyewitnesses or DNA, Shah told the jury, "There is no reasonable doubt."
The prosecutor said the boy's father had motive, opportunity and means.
Countering an argument made by the defense lawyer, Shah told the jury, "He is not the victim. He is the killer."
Creato's defense attorney, Richard J. Fuschino Jr. of Philadelphia, had earlier told the jury, "If this man is not a killer, he's a victim. I submit he's a victim."
Fuschino's summation was all about what he argued were gaps in the prosecution's case and the possibility of jurors having reasonable doubt.
Shah told the jury that the defendant's obsession with girlfriend Julia "Julie" Stensky drove him to commit the crime. He "loved himself more, loved Julie more," she said.
Shah said by killing his boy, Creato felt he was free to pursue options, including Stensky, whom he'd met through online dating. Two veteran law enforcement officers showed more emotion at the boy's death than his father, Shah told the jury.
Shah had begun her summation by describing what it would have taken for Creato to smother his son – one of the possibilities suggested by medical examiners – on the couch where he slept, and then placed the child in a creek more than half a mile away.
Creato stared straight ahead as she spoke.
As Shah put a slide of the dead child on a large screen for the jury, the child's maternal grandmother, Danielle Denoto Collins, left the courtroom in tears.
Shah had begun her summation by emphatically saying, "It's a homicide."
Her statement was meant to counter defense arguments that medical experts had failed to provide sufficient answers as to precisely how Brendan died.
Saying that few physical signs of injury is consistent with smothering, the prosecutor even pointed to the child's pillow as the likely way in which the boy was smothered, though that was not testified to at trial. Shah told the jury smothering a sleeping three-year-old would not take much."It fits with a lack of any other injury," she said.
She even suggested a time frame for the act, sometime after Creato "blew up" the phone of his teenage girlfriend, a college student in New York, in the early hours of Oct. 13.
Shah pointed to Creato accessing Stensky's social media accounts as evidence of his obsessive jealousy, noting that he checked one of Stensky's accounts 33 minutes after reporting his son missing, while a frantic community search was underway.
She added "logically, reasonably" the jury could conclude what had happened.
"A stranger did not kill Brendan," said Shah, noting the location where the boy's body was found was described by Creato as his favorite place in the community. "How would a stranger know where to put Brendan?"
Shah had taken more than nine days and dozens of experts to make her case.
Stensky, for her part, "said so many hateful things" during online and cell messages exchanged with Creato, Shah told the jury.
Shah said the tenor of the messages changed after Oct. 6 and became "twisted and one-sided" with Creato desperately trying to preserve their three-month-old relationship while Stensky was pulling away as she became more immersed in college life in New York City.
That's when he became more imploring, Shah said, telling Stensky he is "willing to do anything" and when he stopped responding to his girlfriend by reflexively telling her Brendan would always be in his life.
Shah called Stensky "a nasty girl" who had called Brendan a "mistake," and said she wanted to move on, adding her parents did not like her spending time with a 21-year-old with a child.
The prosecutor also mentioned Creato had told Stensky that he felt "unwanted and unloved" and that he had cried on a job site over their faltering relationship.
Shah told the jury that Stensky was in New York City and could not have been responsible for Brendan's disappearance and death, which Fuschino had suggested as a possibility.
Creato's defense lawyer attacked the absence of concrete evidence linking his client to the toddler's death and the prosecution's sole focus on the boy's father as the suspect.
The lawyer called the case "heartbreaking," pointing to the tears of veteran police officers who testified.
Fuschino told the jury he cries at home about the case. He said the jury likely does the same. He said the case "will affect your psyche forever."
But he cautioned the jury about making emotional conclusions.
"No one wants a victim. No one wants a boogeyman," he said of the impulse to punish someone.
"Ask did he do it?" prodded the lawyer, pointing out that the standard of reasonable doubt the jury must apply means being sure of the events.
Fuschino also focused on unanswered medical questions about how the boy died and primarily on the actions and inactions of Dr. Gerald "Buck" Feigin, the regional medical examiner who serves Camden County. Feigin was the primary medical examiner and the first of three to perform an autopsy on Brendan's body.
His voice rising to a contained shout, Fuschino called Feigin's behavior – missing injuries and not performing all possible tests, including a rape kit – "absolutely unforgivable."
Fuschino pointed out that injuries overlooked by Falzon – a bite mark and tiny eye hemorrhages – were found by another medical examiner. "This is unacceptable" he said of Feigin. He "missed it."
"Made a mistake! It is unconscionable."
He also pointed out Feigin brought the wrong crime scene report to court and had failed to familiarize himself with his scene investigator's correct report.
He closed his attack on Feigin with the phrase "Do your job!" – repeating it twice for emphasis.
Fuschino reminded the jury that Creato's decision not to testify cannot be held against his client, whom he described as a "new-age hippie" who has believed for a decade he was in touch with spirits.
The lawyer said the prosecution presented "nine days of witnesses who have nothing to do with his guilt."
Fuschino mentioned several leads – a stroller and a wheeled piece of luggage among them – that he said the prosecution did not fully explore.
And he asked why authorities had not used a police dog in an attempt to show if his client had been at the site where his son's body was found on a rock. A K-9 had tracked the boy there, but authorities never checked to see if the scent of his father was also present.
"Reasonable doubt isn't maybe, could be, probably did it," Fuschino told the jury, before going on to cellphone and digital records which don't place Creato at the crime scene on Oct. 12 or 13.
Fuschino said the texts exchanged by Stensky with Creato, while reason to "hate" her, had nothing in them to implicate his client.
Fuschino invoked the protections afforded to the accused as he made his final comments, saying the prosecution is "not the last word."
He said his "last two words" are "Not guilty."
Before deliberations began, two women jurors were designated as alternates.
That means deliberations rest with nine women and three men.