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March 31, 2016

Creato lawyer files motion seeking dismissal of murder charges, alleges 'unfair' grand jury process

Lawyer for accused father claims flawed investigation by medical examiner is reason for release from jail

Courts Brendan Creato Case
Carroll - Brendan Creato Body Location Thom Carroll/PhillyVoice

The location where the body of 3-year-old Brendan Creato was found along a creek flowing to the Cooper River in Haddon Township.

Dr. Gerald “Buck” Feigin, the medical examiner for Camden County, did not go to the scene on Oct. 13, 2015, to investigate the discovery of the lifeless body of 3-year-old Brendan Link Creato, who was found partially in a stream, with his pajama bottoms and diaper pulled down, according to a legal motion filed Thursday.

Despite the shocking placement of the body, Feigin didn't report to the scene until five days later – on a Saturday – a fact missing from his testimony before a grand jury, the filing alleges.

Citing Feigin's actions, and inactions, the lawyer representing David "DJ" Creato, 22, who is charged with his son's murder, is seeking to have his client released and the criminal charges dismissed.

The filing calls the grand jury process "fundamentally unfair," alleging Feigin failed to "take charge" of the boy's body, failed to follow mandated protocols and produced "unreliable reports." It also alleges there is no physical evidence linking DJ Creato to the scene at the creek, near the Cooper River. 

The filing also alleges the medical examiner went beyond the scope of his expertise when he testified to the grand jury about the placement of the boy's body in the creek and the meaning of the child's clean socks.

Other than acknowledging his motion for the dismissal of charges against his client, lawyer Richard J. Fuschino Jr. of Philadelphia declined comment, saying his filing "speaks for itself."

By state law, Feigin or his assistant medical examiner were required to go to the scene as soon as the body was discovered just before 9 a.m. The law, in particular, cites pediatric deaths and "obscure" causes of death as reasons requiring a medical examiner to visit a suspicious scene.

The law required Feigin's office to conduct an in-depth investigation at the scene, independent of law enforcement. In fact, state law puts the medical examiner in charge of suspicious death scenes and requires him to "fully investigate" the essential facts, then turn information over to law enforcement.

Instead, the child's body was removed from the creek not long after being discovered by Detective John Ellis of the Camden County Prosecutor's Office's Crime Scene Unit, a supporting document filed by Fuschino shows.

Moving a body should only be done under the supervision of a medical examiner, and not until a detailed examination at the scene is completed, a guideline and state law states. Such examinations typically take hours.

There is nothing to indicate in court papers that an in-depth examination – the guideline is more than 40 pages long – was performed at the scene by any representative of the Medical Examiner's Office. 

The details of an on-scene investigation are typically reported in a document known as a RIME, a Report of Investigation Medical Examiner. A brief RIME – fewer than 200 words – was filed by death scene investigator Franklin Jackson, who works for Feigin.

The RIME filed by Jackson mentions only law enforcement actions at the scene – moving the body, taking photographs – followed by Jackson transporting the child's body to an examination facility in Woodbury, New Jersey, about 15 minutes away. The boy was pronounced dead there at 10:30 a.m., and an autopsy began at 1 p.m., the RIME indicates.

The grand jury that indicted DJ Creato in January had none of those facts before bringing a first-degree murder charge, papers filed by Fuschino in New Jersey Superior Court in Camden allege.

Feigin was not at work on Thursday, and did not respond to a request for comment on the allegations. A relative answered at his home in Gloucester County and said the doctor was at the shore. A message was left with his son, but has not been returned.

Brendan Creato was found in Cooper River Park in Haddon Township less than three hours after he was reported missing by his father about 6 a.m. on Oct. 13, 2015. The boy's body was found at about 9 a.m., his head propped on a partially submerged rock in a creek.

The child’s legs and arms were in the water. One side of his head and hair were wet, positioned on the rock, his face turned toward the stream bank.

Suggesting the boy’s body had been placed on the rock, the boy's socks were clean, free of debris and mud, despite wet soil and leaf litter on the path to the creek, which flows into the nearby Cooper River.

Despite the way the toddler’s body was left with his buttocks exposed – a detail made public for the first time in the court filings – authorities announced on Oct. 21 that the child had not been sexually abused.

But it was not until Dec. 15 that Feigin signed an autopsy and death certificate declaring the boy’s death a homicide. Public disclosure of that finding was withheld for nearly a month by the Camden County Prosecutor’s Office, until DJ Creato was arrested and charged with his son's premeditated murder on Jan. 11. Creato was charged additionally with second-degree endangering the welfare of a child.

He has entered a not guilty plea and remains jailed, unable to post bail of $750,000.

The reason why Feigin did not go to the scene where the boy’s body was found is unclear, as is the reason why Jackson responded.

Jackson is not on the office's official Excel schedule for Oct. 13, according to a document provided to PhillyVoice via a records request. Three additional investigators are listed on that schedule, however.

Jackson has not responded to requests for comment left at his home and business, the Jackson Funeral Home, in the Westmont section of Haddon Township, which is located less than a mile from the scene where the Brendan Creato's body was discovered. 

A Gloucester County spokeswoman declined comment on the allegations in the court filings.

Dr. Charles Siebert Jr., Gloucester County’s assistant medical examiner, was not working the day the boy’s body was found, documents obtained by PhillyVoice through an Open Public Records Act request show.

Siebert, who also works as a consulting pathologist, performed a second autopsy two days after Feigin’s initial examination of the boy’s body failed to pinpoint a cause of death. Siebert's examination also failed to pinpoint a cause of death.

New Jersey's acting medical examiner, Dr. Andrew Falzon, conducted a third autopsy review on Oct. 16. Yet again, that examination failed to identify an exact cause of death.


Despite provisions of New Jersey law that require a medical examiner or assistant medical examiner to respond to suspected murder scenes, in practice, the law is routinely ignored, at least initially. Medical examiners are frequently summoned to complex scenes, though. 

The Act – and its precise and detailed provisions – are posted on the New Jersey Medical Examiner’s site, which is overseen by the state Attorney General’s Office.

But neither the state medical examiner's office, which oversees county medical examiner offices, nor the state's Attorney General's Office, strictly follow – or enforce – the letter of the law, according to Peter Aseltine, a spokesman for Falzon.

Instead of routine visits to suspicious scenes, most medical examiners rely on scene investigators as their eyes and ears, Aseltine acknowledged. But investigators are supposed to summon medical examiners when appropriate.

Aseltine, while not commenting specifically on the Creato case, explained that medical examiners and their assistants “may delegate those responsibilities to trained and qualified medical investigators.” 

He said that is the procedure in the two offices run directly by the state medical examiner – the Northern and Southern Regional Medical Examiner's Offices.

“The medical investigators that we employ for these functions are trained to telephone a medical examiner or assistant medical examiner for consultation when needed," Aseltine said. "Upon consultation, a determination is made regarding whether it is necessary for the medical examiner to respond to the scene.”

There are no memos, logs, emails or text messages showing if Jackson did indeed contact Feigin from the scene, according to an OPRA response, though it is possible Jackson contacted Feigin by phone.

Creato has been jailed since the day he was indicted and charged with murdering his son through “homicidal violence of undetermined etiology" that might have involved drowning, asphyxiation or manual strangulation.

The legal papers argue the investigation of the boy's death and the exact cause of death is flawed, and the grand jury was misled.


Dr. Pete Speth, a former Gloucester County medical examiner who personally went to more than 1,000 suspicious death scenes during his career, said a medical examiner who passes on visiting a homicide scene misses critical information, making it difficult – if not impossible – to determine what exactly happened in complex cases.

For instance, taking a body out of water rapidly hastens its deterioration, said Speth, noting that an examination of Brendan Creato should have begun where the body was found, while the body was still partially in the water. Moving a body can displace trace microfibers that can be indicators of smothering, he said.

The boy’s lips, mouth, neck, hands and fingernails should have been closely examined by a medical examiner at the scene and under magnification, but not until detailed photos were first taken by the medical examiner from a distance and the muddy creek bank scoured for tracks, Speth said.

Speth also said the only way to accurately determine a time of death is to measure the temperature in the victim's eardrums, then adjust for outside air temperature, humidity and the amount of clothing on the body. A child, with its small body mass, loses body heat faster than an adult, another consideration in the analysis, Speth said.

A competent medical examiner would have those skills, but “law enforcement is not competent to do that,” said Speth, adding that other means of taking body temperature, such as with a probe that punctures the liver, are not highly accurate and destroy potential evidence.

The consulting pathologist also said blood pooling – or lividity – potentially could have told a competent medical examiner at the scene if the boy died elsewhere and was moved.

An expert contacted by PhillyVoice, Dr. Zhogxue Hua, a former New Jersey medical examiner and now a professor of pathology, sounded stunned when asked if there was any good reason for a medical examiner or investigator not to fully investigate a pediatric murder scene.

“Never, never for a baby!” Hua said.


The RIME, the form for notes made by medical examiners and investigators at the scene for use by both criminal investigators and Falzon, the state medical examiner who oversees county medical examiners like Feigin, is included in the papers filed by Fuschino.

The RIME filed by Jackson in the Brendan Creato case does not list times for when the Medical Examiner's Office was notified that the body was found, for when the investigator arrived or for when the body was moved. The RIME does not include any diagrams of the scene, and offers no information on the actions undertaken by the medical examiner investigator other than to transport the body. Details like those would typically be included in a RIME.

How extensively Jackson participated at the scene in regards to the investigation on Oct. 13 is not addressed in his report; only his transport of the body is mentioned. The scene was open to the public by the end of the day.

About three weeks after the boy’s body was found, a swarm of investigators quietly returned to the crime scene. They spent three days there, according to neighbors.

The grand jury that indicted DJ Creato was told by Feigin that he had visited the crime scene, according to Fuschino's motion. But the pathologist did not disclose to the jury that he visited five days after the body was discovered.

Kevin Callahan, a spokesman for Camden County Prosecutor Mary E. Colalillo, declined comment, but said they will address the issues in court.

A spokesman for the Camden County Freeholders, which shares the costs of the medical examiner’s office and salaries, also declined comment.

DJ Creato has consistently told authorities he awoke before 6 a.m., went to use the bathroom and then discovered his son was missing from their small second-floor apartment at Virginia and Cooper streets.

The boy slept just outside his dad’s bedroom, on a living room sofa.

Creato has said he first called his parents, who live about two blocks away, then 911. His mother, Lisa Creato, is audible in the background of the emergency call to police.


Following a two-month delay, Feigin ruled on Dec. 15 that the boy was killed by “homicidal violence of undetermined etiology" that might have involved drowning, asphyxiation or manual strangulation.

Medical examiners not connected to the case have told PhillyVoice that Feigin’s undifferentiated diagnosis for the cause of death is exceedingly uncommon.

Hua, for instance, said the cause of death should have been labeled as “unknown,” though other pathologists accept that the boy's death is indeed homicide, but the exact cause should be considered "undetermined."

JC Lore, a professor of criminal law and former criminal defense lawyer, had to look up the definition of the term "homicidal violence of undetermined etiology" because it is used so rarely, most often in body decomposition cases.

In presenting charges in court on Jan. 12, assistant prosecutor Chistine Shah argued that while the case against Brendan Creato's dad was circumstantial, it was also “compelling.” She also said then that DJ Creato had killed his son in order to continue his relationship with his girlfriend.

The former girlfriend is Julia "Julie" Stensky, previously referred to as "Spensky" in PhillyVoice and other media accounts. Stensky was just 17 years old at the time the couple started dating, about four months before Brendan Creato was killed.

While Shah called the case compelling, the state’s own top medical examiner took a cautious tone in his review of the case, according to Fuschino’s court filing.

"One would have to do a thorough post-mortem examination to exclude other causes of death," Falzon wrote.

Falzon also concluded that the cause of death should be listed as “undetermined” unless new information turned up.

Speth said Falzon "may be speaking in generalities, but my hunch is that he is criticizing a lack of scene participation by Feigin at the very outset since drowning and smothering deaths are dependent on correlations with the scene and witness statements.”

“Feigin was working in a vacuum by failing to go to the scene,” Speth added.

“Autopsies serve only to provide meaningful correlations with a thorough scene investigation and witness statements,” the pathologist said.

Falzon did not immediately return a request for comment.

Fuschino’s papers argue there is no new information to support either Feigin’s conclusion of how the toddler died, or the involvement of DJ Creato.