Hung Jury In David Creato Murder Trial; County Prosecutor Intends To Retry Case

HADDON TOWNSHIP, NJ — The 12-member jury couldn’t come to a consensus in the murder trial of David “DJ” Creato. Judge John Kelley dismissed the jury Wednesday morning after declaring the mistrial.

Following the proceedings, the Camden County Prosecutor's Office issued a statement announcing it intends to retry the case. A status conference has been scheduled for July 5.

Creato was charged with first-degree murder and second-degree endangering the welfare of a child in his son’s death.

"We thank the jury for their time and service," the prosecutor's office said in the statement.

The jury first informed the judge it was having difficulty reaching a verdict Wednesday afternoon, when it passed Kelley a note that read, “"We can't reach a verdict. Please advise," according to the LawNewz Network.

At that point, Kelley dismissed them for the day and asked them to return on Wednesday. However, the jury was still unable to reach a verdict upon its return.

After the dismissal, defense attorney Richard Fuschino Jr. told 6 ABC he believes it is likely the case will be retried. Creato will remain in custody, but Fuschino also said he would file a motion to attempt to have the $750,000 bail reduced.

Creato has been in custody since his arrest and indictment on Jan. 12, 2016.

The initial jury consisted of 11 women and three men. The final jury was made up of nine women and three men, after two of the women were randomly chosen to serve as alternates, according to philly.com. The jurors were dismissed before the rest of the courtroom, and left through a back door late Wednesday morning, although the judge said they are now permitted to speak to members of the media.

It wasn't clear how many went against the majority, or why the jury couldn't agree on a verdict. However, it did request to see and hear several pieces of evidence multiple times during its deliberation, which began on Tuesday, May 23.

Most notably, it viewed the interrogation of Creato by Haddon Township police in the hours after he reported his son missing on Oct. 13, 2015, multiple times during its deliberation after viewing once during the trial itself.

During the course of the video, Creato repeatedly asks if there are any updates concerning the whereabouts of his son, whom he had reported missing around 6 a.m. When investigators finally told him his son was found dead, Creato paused before he said "No, no, no, he was my best friend." Creato didn't testify during the trial.

As part of her closing statement concerning this video, Assistant Prosecutor Christine Shah noted the fact that Creato wasn’t habitually checking his cell phone during a time in which people were supposed to be looking for his son.

Shah suggested he wasn’t checking his phone because he knew his son wouldn’t be found alive. She also pointed out that prior to this, Creato compulsively checked his phone to keep tabs on his then-girlfriend, Julia Stensky, who was a student at Pace University in New York.

Creato had his cell phone with him while he was at police headquarters, and was left alone for periods at a time. Even then, he didn’t check his phone, Shah pointed out. She also noted that he paused after he was told that his son was dead, saying she believed the pause was due to the fact that he already knew the toddler wasn't going to be found alive.

During the interview, police asked Creato about his relationship with his son, which he described as good. When officers ask him if he ever gets mad at the child, he responds by saying he does, but not enough to hurt him.

The video was also shown at a status conference prior to the start of the trial. At that time, defense attorney Richard Fuschino Jr. opposed playing the video during the trial, arguing that investigators never told his client he was a suspect in the investigation, and that he wasn’t mirandized properly.

Kelley ruled that it was clear Creato was aware of his rights during the interview. Just before the trial began, Kelley approved Shah’s motion to have the video submitted as evidence.

The video was part of a 12-hour interview police conducted with Creato. Fuschino has pointed out that his client answered all the questions asked of him, but he also uses the video to support his claim that the investigation was mishandled because detectives never considered any other suspects. He says investigators pegged Creato as the only suspect from the beginning of the case.

The lead investigator testified that isn't true, and that Creato wasn't a suspect until about two weeks later. Creato was arrested and indicted three months after the last time Brendan was seen alive.

Fuschino asked why investigators questioned only registered sex offenders in Haddon Township, and not the surrounding area. The prosecution responded that there was no evidence that a sexual assault had occurred, or even that anyone had broken into the apartment.

The jury has also heard an audio recording of the 911 call Creato made to police, to report his son missing and an audio recording of a conversation Brendan’s mother Samantha Denoto secretly recorded while talking to Creato about their son’s disappearance. During the conversation, Creato tell Denoto he thought a “spirit” might have summoned their son to the spot near the Cooper River in which his body was found three hours after Creato reported him missing.

She said that spot was a very special place to Creato, and cell phone records indicate he was there on Oct. 11, 2015. Shah earlier claimed that Creato had taken Stensky there three or four times while they were dating.

It also reviewed text messages exchanged between Creato and Stensky. Shah has attempted to make the case that Creato killed his son because Stensky didn't like children. Stensky wasn't considered a suspect in the case because she can prove she was at school when Creato reported his son missing. Stensky testified during trial that she was jealous of the relationship between Creato and his son, but she never asked him to kill Brendan.

During his closing statement, Fuschino reminded the jury that it should only find Creato guilty if it could do so "beyond a reasonable doubt." He repeatedly pointed out that the prosecution’s case was entirely circumstantial. A state forensics scientist, testifying for the prosecution, even said there was no DNA evidence linking anyone to the child's murder.

Fuschino also attacked the credibility of the Camden County Medical Examiner. The cause of Brendan’s death was never entirely clear, with Shah using the phrase “homicidal violence of unknown etiology.”

Investigators believed the child was either smothered or drowned, and the uncertainty has been attributed to the fact that Camden County Medical Examiner Dr. Gerald Feigin didn’t respond to the scene as soon as the body was discovered, as required by state law.

The law states the examiner must report to any scene that includes any type of suspicious death, including violent deaths and deaths in which the cause isn’t immediately clear, among others.

Feigin didn’t respond to the scene for several days. Fuschino attempted to have the case dismissed based on these circumstances. He even pointed to two cases in Massachusetts Feigin appeared to have mishandled, and a recent case in South Jersey in which a woman’s hand was left behind at a crash scene.

However, the judge said that this wasn’t enough to have the case thrown out. Fuschino argued that the delay allowed the scene to become contaminated.

Feigin, Deputy Medical Examiner Dr. Charles Seibert and New Jersey State Medical Examiner Dr. Andrew Falzon each conducted their own autopsy of the toddler’s body. During the trial, Falzon testified that he found injuries that may have been overlooked by both county medical examiners.

Falzon initially listed Brendan Creato's cause of death as undetermined. However, when he reviewed the evidence about a year and a half later, he changed his mind and concurred with Feigin and Seibert that the cause of death was homicide.

He said the child's clean socks and the lack of any shoes in the area near the Cooper River where Brendan Creato's body was found made the death seem suspicious.

Brendan Creato was wearing clean socks when his body was found. Investigators walked the same trail he would’ve had to have followed from his father’s apartment to the stream by which he was found with no shoes, and their socks were filthy when they were finished.

Shah claimed this discredited Creato’s claims that his son could’ve wandered off in the middle of the night. Family members also testified that Brendan Creato was afraid of the dark.

Falzon said that if any footwear had been found, or if Brendan Creato's body had been found at home, he would've stuck by his original call that the cause of death was undetermined.

Shah even had the jury visit the scene in which Brendan Creato’s body was found, although no media was permitted to report on that event.

When Fuschino suggested that Brendan Creato's body could've been moved, Falzon said there was no reasonable explanation for how his body ended up where it was found.

The trial began on April 20, and lasted about a month, taking place three days most weeks. One week it only convened once because Kelley was participating in an education course.

If convicted, Creato faced between 30 years and life in prison. Last year, he rejected a 35-year plea deal, according to published reports.

The jury's inability to reach a verdict in the case does nothing to clarify Creato's innocence in the case. It only means that this jury has been dismissed. It will now be up to the prosecution to decide if it wants to further pursue the case against Creato, which it will do during the July 5 hearing.

See related story: What Might Happen If There Is A Hung Jury In The David Creato Murder Trial?

Attached image: David Creato appears in court Thursday, May 4, 2017, during day seven of his trial in connection with the death of his 3-year-old son, in Camden, N.J. Creato maintains his innocence. (Joe Lambert/Camden Courier-Post via AP, Pool)