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N.J. boy's killing is a puzzle with key pieces missing

Prosecutors say they have compelling circumstantial evidence against David "D.J." Creato Jr., the Haddon Township father charged with killing his 3-year-old son, Brendan. But some outside legal experts say that should the case go to trial, the lack of direct evidence could pose a challenge.

David 'DJ' Creato arrives for his arraignment in a Camden courtroom to face first degree murder charges in the death of his 3-year-old son Brendan.
David 'DJ' Creato arrives for his arraignment in a Camden courtroom to face first degree murder charges in the death of his 3-year-old son Brendan.Read moreTom Gralish / Staff Photographer

Prosecutors say they have compelling circumstantial evidence against David "D.J." Creato Jr., the Haddon Township father charged with killing his 3-year-old son, Brendan. But some outside legal experts say that should the case go to trial, the lack of direct evidence could pose a challenge.

Authorities have noted several pieces of evidence: The 9,487 text messages between Creato and his girlfriend, who told him he would have to give up custody of Brendan to be with her. The lack of dirt on Brendan's socks, indicating someone placed him in the woods. And, among other clues prosecutors described in an arraignment Tuesday, bruising near the boy's neck.

But investigators are missing key pieces of the puzzle. They do not know the exact cause of death. There doesn't seem to be a witness. And Creato has not confessed.

"Right now, I would say it's not the strongest case I've ever seen," said Rocco Cipparone, a former federal prosecutor, who said direct evidence was preferable over a circumstantial case.

The text messages, which date back to when Creato met his girlfriend on the dating website Tinder in June, may contain an argument for both sides about Creato's mind-set, according to Cipparone and other legal experts who are not involved in the case but who spoke Wednesday about the evidence presented thus far.

"The state of mind becomes critical," said Haddonfield-based defense attorney Glenn A. Zeitz. "And what better evidence of state of mind than the texts?"

Burden of proof

Creato, 22, was arraigned Tuesday in Superior Court in Camden on charges of murder and endangering the welfare of a child.

He reported his son missing around 6 a.m. on Oct. 13, saying he woke up and Brendan was gone. A K-9 unit found Brendan's body in woods three-quarters of a mile away.

Creato's attorney, Richard J. Fuschino Jr., said Wednesday that he had not reviewed all the evidence but noted that the prosecution, not Creato, had the burden of proving the case.

"He absolutely doesn't have to prove, show, or say anything," Fuschino said.

In the text messages and online postings, which Camden County Assistant Prosecutor Christine Shah detailed at the arraignment, Creato's girlfriend allegedly told him she resented his devotion to Brendan.

Shah said problems developed between Creato and his girlfriend, a juvenile, after she began attending college in New York and could visit him only on weekends. Creato feared she had found someone else and became jealous, Shah said.

The teen was away at college when Brendan was killed, Shah said.

Shah did not name her in court, but she has been identified publicly as 17-year-old Julia Spensky.

Spensky's attorney, Joseph Sorrentino of New York, declined comment Tuesday and did not return a call Wednesday.

Brendan's mother, Samantha Denoto, did not live with Creato.

A discrepancy

Zeitz said that based on the information released at the arraignment, prosecutors had established motive and opportunity.

Additionally, Creato's statement to authorities before his arrest that he had gone to bed at 10 p.m. conflicted with evidence, which Shah noted in court, that he had checked his phone after midnight. That appears to call Creato's honesty into question, Zeitz said.

The texts, however, may also become the basis for a defense, Zeitz said.

"If they reveal that he's worried about losing the love of his life, then he's not thinking right," Zeitz said. "He may still be in the throes of an emotional breakdown because he's losing someone he loves."

At the arraignment, Shah offered one more piece of evidence: While Creato and his girlfriend dated, they visited the spot where Brendan's body was found about 30 times and took pictures there.

Shah said Brendan died of "homicidal violence." She said an examination of Brendan's brain showed an abnormality consistent with oxygen deprivation that can be caused by asphyxiation, drowning, or strangulation.

She also noted an unhealed bruise near Brendan's neck, saying it indicated he was injured prior to his death, but she stopped short of saying conclusively what caused Brendan's death.

Motive is key

Cipparone, a Haddon Heights defense attorney, said that without an exact cause of death, the prosecution may rely heavily on motive.

"The defense is going to argue it's a house of cards with no direct evidence that the father killed his son," he said. "Without the motive, the whole prosecution falls apart."

On the prosecution's side is Shah, who oversees the homicide unit and joined the Camden County Prosecutor's Office in 1997.

Shah prosecuted a Cherry Hill man in the death of his 11-week-old daughter.

Richard Randazzo, 35, said he slipped and fell on the infant in the 2012 incident. A doctor who examined the child, however, said her injuries were consistent with those seen in babies that were violently shaken. In December, Randazzo was found guilty of manslaughter and endangering the welfare of a child.

Former Camden County Prosecutor Warren Faulk, whom Shah worked for before he left office in June 2014, said she would relish the chance to prove a difficult case.

He said that based on the evidence presented thus far, investigators had gone through a process of elimination.

"It looked to me like they had eliminated most everything, most everybody," Faulk said.

Building a case

J.C. Lore, director of trial advocacy at the Rutgers Law School, said it was not unusual for criminal cases to be built solely on circumstantial evidence.

"Sometimes a murder weapon isn't found, or drugs aren't found on a person, or there is no direct or limited direct physical evidence that you can connect to a person," he said.

In 2015 in Burlington County, Kyle Crosby was charged with killing his wife, before her body was found in a wooded area in Maryland.

Authorities relied on text messages between Crosby and his mother to implicate him in the crime. He pleaded guilty last month to aggravated manslaughter and hindering apprehension and faces 31 years in prison.

Burlington County First Assistant Prosecutor Raymond Milavsky said the Crosby case was built on commonsense inferences and the text messages - on the day of the murder, according to court documents, Crosby received a message from his mother, Jo, that read, "Please do not touch her in any way or form."

"Circumstantial evidence, as a judge will tell a jury, can and in many instances is as satisfying and compelling as direct evidence," Milavsky said.

mboren@phillynews.com

856-779-3829@borenmc