Judge Denies Motion to Dismiss Charges Against David Creato in Death of 3-Year-Old Son

A motion to have the indictment dismissed in the case of a Haddon Township father has been dismissed, and a separate motion to suppress certain evidence has been continued to June 2.

Judge John Kelley issued his ruling following a hearing in Superior Court in Camden Monday afternoon.

While the motion to dismiss the indictment would've prevented the case from moving forward, the motion to suppress can't and Kelley said the case is on track to go to trial.

Kelley ruled that the the revelation that Medical Examiner Dr. Gerald Feigin didn’t respond to the scene of Brendan Creato’s death as soon as his body was discovered in a wooded area off South Park Drive in Haddon Township around 9 a.m. on Oct. 13, , as required by state law was not enough to have the case dismissed.

Attorney Richard Fuschino Jr. has also argued that certain evidence should be suppressed because he was improperly questioned. Kelley said he must review tape from the interrogation before ruling on that motion.

David Creato has been indicted on charges of first-degree murder and second-degree endangering the welfare of a child in his 3-year-old son’s death.

Fuschino asked for the indictment to be dismissed because Feigin didn’t respond to the scene immediately, and the prosecutor has called the motion “absurd.”

“He actually went to the scene the following weekend, after it was contaminated,” Fuschino argued during Monday’s hearing. “ … He had to mislead the Grand Jury because he’s a disgrace. He has a horrific past. … This little boy deserved better than what he got from the Medical Examiner.”

He went on to say a thorough investigation wasn’t done by the Medical Examiner’s Office, and as a result, Brendan Creato’s death was determined to be homicide of undetermined etyiology.

Assistant Prosecutor Christine Shah argued that Feigin didn’t do anything wrong, and that the cause of death was reached by exclusion, wherein any other possible cause of death other than homicide was ruled out.

“You don’t need to be an expert to see that the victim was wearing clean socks and to know he didn’t get there under his own power, particularly not a 3-year-old who was afraid of the dark.”

She said an investigation conducted by trained detectives took the place of the Medical Examiner’s Office. The investigation included detectives taking the same trek through the woods from his father’s home, where he was last seen the night before, to the wooded area in which he was found.

Detectives made the walk without shoes on, and they took a second walk with a 3-year-old girl who had didn’t go straight to the spot. In both cases, the socks were filthy at the end of the walk.

She added that Fuschino’s reasoning for asking for the indictment to be dismissed has never been used in any other case, and Kelley agreed with her.

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.

The examiner is given authority over the scene to “fully investigate the essential facts concerning the medical causes of death and take the names and addresses of as many witnesses thereto as may be practicable to obtain,” as well as filing an evaluation of the scene and making it accessible to the county prosecutor.

His deputy or one of his assistants may also respond to the scene, but that didn’t happen either.

The law states it is the duty of the physician, law enforcement, or other person who is present to notify the medical examiner. It’s unclear why the medical examiner didn’t report to the scene.

The body shouldn’t be removed until the medical examiner evaluates the scene. However, the body was allegedly removed from the scene not long after it was discovered in this case.

In his ruling, Kelley said the quality and quantity of the evidence doesn't need to be substantial in a Grand Jury presentation.

This is not the first time Feigin has been at the center of controversy over a murder investigation.

He resigned from the same position in Massachusetts after making mistakes in two cases in the late 1990’s, including a famous Boston case in which a guilty verdict and mandatory life sentence charge in the death of an 8-month-old child were overturned due to Feigin’s mistakes, according to the Philly Voice.

The motion to suppress evidence is based on investigators questioning Creato without informing him he was the target of an investigation.

“Police knew when they saw the boy was dead and he had clean socks that his death was not accidental,” Fuschino said. “They must believe there is a doer if they suspected it was a homicide.”

He said investigators only mentioned possible Miranda Rights in passing, and asked for consent to search his phone while telling him he wasn’t a suspect.

“They said they do that to everyone,” Fuschino said. “They don’t do that to everyone.”

Kelley described the day as a “fluid situation” in which police were gathering facts about the case, and a person doesn’t have to be read their Miranda Rights before police search their phone.

Creato told detectives they could search his phone, and even pointed out the device had a GPS tracker so they could see where he was at all times.

Creato was at the Haddon Township Police station until 9 p.m., but wasn’t charged and was permitted to leave.

Kelley will review the video of the interrogation ahead of the June 2 continuation. Portions of the video may be shown in court.