CAMDEN, N.J. – A mistrial was declared Wednesday in the case of a New Jersey man accused of killing his 3-year-old son, as jurors told a judge they couldn't reach a verdict after five days of deliberations.
Judge John Kelley declared a mistrial one day after the jury first told him they couldn't agree on a verdict against David Creato. Prosecutors said Wednesday they plan to retry the case, and Kelley set a conference for July 5.
Creato, known as D.J., maintained that his 3-year-old son, Brendan Creato, wandered away from his Haddon Township home in October 2015. The boy would have turned 5 on Thursday.
Prosecutors had maintained Creato, 23, killed his son because he feared his then-17-year-old girlfriend, who was away at college, was going to leave him. She had made it clear she didn't want to be around his child and wanted him to give up custody.
Creato's attorney, Richard Fuschino Jr., said that he will make a motion for bail. He said that Creato is upset and wants to go home to see his family and that the jury's decision showed that prosecutors couldn't prove their case beyond a reasonable doubt with the circumstantial evidence they presented.
"I am so appreciative of what the jury did. This is such a tough job. There's such sensitive facts," Fuschino said. "I wouldn't say that I was surprised, but I certainly was not shocked."
Creato called 911 at about 6 a.m. to report his son missing, and the boy's pajama-clad body was found hours later in a wooded area by the Cooper River about a mile from the home.
During the trial, Camden County prosecutors said the boy's neon green socks were clean, which would be impossible if he had wandered away from home. They also noted that about a month after the slaying, in a conversation secretly recorded by the boy's mother, Creato spoke about "a spirit" drawing his son to the woods where he was found dead.
A medical examiner testified Brendan died from "homicidal violence" but couldn't determine where or when he died. Brendan's brain showed an abnormality consistent with oxygen deprivation that can be caused by asphyxiation, drowning or strangulation, but it couldn't be determined which of those led to his death.
Prosecutors spent nearly 10 days presenting their case, but the defense took just 20 minutes before resting. Fuschino then sought to have the charges dismissed, claiming prosecutors had "put on no evidence to say that Brendan Creato was killed or that D.J. Creato was the person who killed him."
Kelley rejected the motion, saying that prosecutors had showed motive and enough evidence for jurors to decide whether Creato was guilty.
Creato's then-girlfriend, who's now 19, was never charged, and they've broken up.