Prosecutors plan to retry the case against David "D.J." Creato Jr. after jurors could not agree whether Creato killed his 3-year-old son, Brendan, in 2015, and the judge declared a mistrial Wednesday.
"Obviously, you try the case a second time. This is not something that you can let go," said former Camden County Prosecutor Warren Faulk, who left office in 2014. "The little boy, the victim, his mother, and the family deserve justice, and that requires that the case be retried before a different jury."
But Creato's attorney, Richard J. Fuschino Jr., said outside the courthouse Wednesday that he now has the advantage of seeing how the prosecution presented the case, which took nearly 10 days. Fuschino presented his defense in 20 minutes.
"It's a little hard to play poker when the other side's seen all the cards," said Haddonfield-based defense attorney Glenn A. Zeitz, who was not involved in the case but has followed it through news coverage.
Judge John T. Kelley scheduled a July 5 hearing to consider next steps, which could include a new trial.
Assistant Camden County Prosecutor Christine Shah, who tried the case, declined to comment Wednesday. Her office released a brief statement saying it " intends to retry this case," but did not specify whether Creato would face the same charges: murder and endangering the welfare of a child.
Creato was returned to the Camden County Jail, where he is being held on $750,000 bail. Fuschino said he would seek to lower bail for his client as soon as possible.
"D.J.'s upset," Fuschino said. "He wanted to go home today. He wanted to be with his family."
The mistrial happened a day before Brendan's birthday. He would have turned 5.
Kelley had ordered jurors to keep deliberating after they informed him late Tuesday afternoon that they were struggling to reach a verdict. They met for less than two hours Wednesday before informing the judge they still could not agree on a verdict.
"The nature of a hung jury suggests that they can't prove the case beyond a reasonable doubt," Fuschino said. "So that's why I think that very well-intentioned people disagree on this, but 12 people couldn't say guilty."
The jurors had spent hours reexamining evidence, including video of Creato reacting to news of Brendan's death — which they watched four times — and audio of the 911 call Creato made to report Brendan missing.
Samantha Denoto, Brendan's mother, who shared custody with Creato, declined to comment after jurors were dismissed.
"I was advised not to comment," Creato's father, David Sr., said after leaving the courtroom.
Prosecutors had argued Creato killed Brendan to prevent his girlfriend, who demanded she be Creato's number-one priority, from leaving him.
The defense argued that Creato was the victim of a flawed police investigation and that authorities had only circumstantial evidence to link Creato to his son's death.
Brendan's pajama-clad body was found slumped over a rock and partially submerged in a creek in woods about three-quarters of a mile from Creato's apartment in Haddon Township on Oct. 13, 2015. Brendan had no shoes but was wearing clean socks, which suggested someone had placed him there, prosecutors said.
The case has gripped the township, where many residents hung black and blue ribbons on their homes to honor Brendan.
As they learned of the mistrial, neighbors of Creato's family had mixed reactions.
One, Carol DeAngelo, 48, said she was anticipating a not-guilty verdict based on the evidence presented. She said she has been friends with the Creato family for years and doesn't believe that David Creato Jr. would have done anything to hurt his son.
But Jean Callahan, 60, said she was expecting a guilty verdict before Wednesday.
"From what I saw, who else could have done it? I feel they have the right person," she said. "Everyone I've talked to felt that he did it."
Kayley Coulter, 31, said she wasn't surprised by the mistrial but added that she was disappointed.
"I know there's a lot of people who are upset because there's a 3-year-old who lost his life, and nobody's paying the consequences for it," she said. "Whether it was neglect or murder or whatever the case may be, somebody is responsible."
Three hours before a police dog tracked the boy's scent and helped find the body, Creato had called 911 to report Brendan missing, saying he woke up and found the boy was gone.
Police sent a reverse 911 call about the disappearance to residents, who poured into the streets to search yards, cars, and inside plastic Halloween pumpkins.
From the start, the prosecution lacked a key piece of evidence: the cause of death.
Three medical examiners ruled Brendan had died of "homicidal violence" but could not determine whether drowning, strangulation, or smothering — each of which can deprive the brain of oxygen — caused Brendan's death.
Shah suggested in her closing statement that Creato had smothered Brendan with a pillow as the boy slept on a living-room couch in Creato's apartment. Shah said smothering could leave little to no evidence.
Fuschino suggested Brendan could have accidentally locked himself out of Creato's apartment and wandered outdoors, where someone nefarious could have grabbed him.
He ripped Camden County Medical Examiner Gerald Feigin, who took the stand in early May, for being unable to determine where Brendan died — in the woods or elsewhere — at what time he died, or who was responsible for his death.
The prosecution sought to establish motive by reading jurors thousands of text messages between Creato and his former girlfriend, Julia Stensky, 19. Creato met her on the dating app Tinder in June 2015, when she was 17.
The messages showed Creato initially defending Brendan, whom Stensky called a "mistake," but later telling Stensky he would do anything for her, particularly as their relationship deteriorated.
Prosecutors said Creato was jealous that Stensky was talking to other men at Pace University in New York City, which she began attending in the fall of 2015, several months after she and Creato met.
Stensky was in New York when Brendan died, authorities said. She has not been charged.
At the request of investigators, Brendan's mother, Denoto, secretly recorded a conversation with Creato about a month after Brendan died. Creato suggested spirits had lured Brendan to the woods near South Park Drive and Cooper Street. Denoto testified that she found Creato's reasoning "odd and unexplainable."
Stensky told investigators she and Creato had visited the woods 20 to 30 times, including two days before Brendan was found dead.