By clicking on the blue portal below, you can download a PDF of the January 25 edition of the San Bernardino County Sentinel
By Mark Gutglueck
Jurors considering the capital case against the accused murderer of the McStay family this week were provided with the first red meat of the trial in the form of a more than two-and-a-half-hour-long audio recording of Charles Merritt’s first contact with law enforcement relating to the matter less than two weeks after the family’s disappearance and before those deaths were confirmed. Yet unclear is whether this presentation of what has been the most riveting evidence so far will prove out as nourishment for the prosecution or sustenance to the defense.
After two weeks of laying the foundation of its case through the presentation of dry, often repetitious and occasionally gruesome detail, the prosecution in the third week of the murder trial made its first move to cinch the case’s disparate elements into a tableau implicating Charles “Chase” Merritt in the horrific killings.
While Merritt was at the center of the opening statements offered by Supervising Deputy District Attorney Sean Daugherty and defense attorneys James McGee and Raj Maline on the first day of the trial January 7, in much of the testimony of the 15 witnesses called to testify in the first ten days of the trial the focus moved to the circumstance surrounding the family’s mysterious February 2010 disappearance from their north San Diego County home and the grisly aspects of the discovery of their remains in and around two shallow graves in the desert not too distant from the I-15 Freeway north of Victorville. References to Merritt were sporadic or non-existent in some of that testimony. In many of those instances where Merritt loomed as a subject in the questioning of and responses from witnesses, there has been little in the way of pointed indication that he was anything other than a business associate who was among the first of the circle of people around the McStay family to take note of their vanishing and look into what had occurred.
Having laid that groundwork to bring the jury into the context of the case, Daugherty, Supervising Deputy District Attorney Britt Imes and Deputy District Attorney Melissa Rodriguez this week initiated what they hope will prove to be a convincing illustration of their theory of Merritt’s guilt. That theory holds that while Merritt was participating with Joseph McStay in the manufacturing of high end decorative water fountains and artificial waterfalls, he was pilfering thousands of dollars from Joseph’s company through fraud and embezzlement to feed his insatiable gambling addiction. When Joseph McStay learned of what Merritt was up to, either shortly before or perhaps even on February 4, 2010, Merritt sojourned from his Rancho Cucamonga home to the McStay residence in Fallbrook that evening, prosecutor’s maintain, where he slaughtered Joseph McStay, his wife Summer, their four-year-old son Gianni and three-year-old son Joseph, Jr., using a three-pound sledge hammer to bash their skulls in.
Merritt then secreted the bodies for two days, in the meantime fraudulently accessing Joseph McStay’s QuickBooks account for the decorative water features business they were involved in, known as Earth Inspired Products, the prosecution maintains, and on the following day, February 5, 2010, issued himself two checks, both backdated to February 4. He then embarked on a gambling binge at a number of casinos throughout Southern California, according to his accusers, breaking only to take the lifeless corpses of the McStay family up into San Bernardino County’s High Desert, an area with which Merritt was familiar since having grown up in Hesperia and attended Apple Valley High School for three years, and buried all four along with the hammer he had used to bludgeon his victims in shallow graves he dug in a wash off a rarely-traveled dirt road. To throw authorities off his track, confuse the situation and delay a serious investigation into the matter, the prosecution maintains, Merritt drove the McStay family’s 1996 Isuzu Trooper, which yet contained the child seats for Gianni and Joseph, to San Ysidro, where he left the vehicle in a shopping center parking lot less than a half mile from the Mexican border.
Since Daugherty outlined the case against Merritt during the trial’s opening statements, more than half of the direct examination of witnesses has been handled by Imes, with certain witnesses being questioned by Daugherty or Rodriguez. The precise direction of the prosecution has not always been clear, as Imes more than either of his colleagues has from time to time dwelt on specific issues that have seeming significance that he has not fully explicated but which his manner hints holds the prospect of being elucidated upon later in the trial to the defendant’s detriment. One such example is Imes’ recurrent inquiries relating to Merritt’s use of padlocks, as he has asked on more than one occasion about them, suggesting without any explanation so far that there will be some revelation in later testimony or the presentation of evidence tying the use of padlocks or at least a padlock to the murders. The prosecution team has so far succeeded in sustaining an air of mystique about the case, conveying to the jury and courtroom observers that there is much more to come as they wade through the somewhat tedious process of providing not just a backdrop to the story but a bedrock of facts that they assert tie Merritt to a murderous course of action that is not only plausible but which leaves no other credible interpretation. In this way, Daugherty, Imes and Rodriguez seem to be promising the jury that if its members will merely indulge them in setting the stage for the tale to be told, they will be more than adequately rewarded for their patience. Still the same, Imes, Daugherty and Rodriquez have yet, in the testimony presented so far, to go beyond mere suggestion of what they believe occurred, and the defense has aggressively contested elements of the prosecution’s presentation along several tangents, including continuously questioning specifics in the timeline of events, the certainty of witnesses and discrepancies between what several of the witnesses have testified to over the last three weeks and their previous statements to investigators or, in the case of the investigators themselves, what they wrote in their own reports.
With the courtroom darkened on Monday for the Martin Luther King Holiday, the prosecution spent all of Tuesday and half of Wednesday further laying the groundwork for its narrative. It started with the conclusion of testimony begun last week from David Joe Sequeida, an employee of Metro Sheet Metal in Azusa, the son of the business’s owner, who was a supplier of sheet metal used in the fabricating of the water fountains and waterfalls that Merritt built and Joseph McStay sold to customers under the auspices of Earth Inspired Products, as well as landlord of the foundry where that fabrication took place. Thereafter followed the relatively brief testimony of the offroad motorcyclist, John Bluth, who on November 11, 2013 while biking in the desert north of Victorville came across a portion of Joseph McStay, Jr.’s skull which had been dug up by animals. Bluth then alerted authorities to what he had found, thereby leading to the discovery of the McStay family’s graves. Also testifying Tuesday were San Bernardino County Sheriff’s Department then-Homicide Detective Gary Hart, who was dispatched to the gravesites scene on November 11, 2013 as well as San Bernardino County Sheriff’s Department Sheriff then-Homicide Detective Jose “Armando” Avilla, who was assigned to oversee the excavation of the grave containing Summer McStay and Gianni McStay, which was designated as grave B by the investigative team.
Testifying Wednesday morning was Dr. Alexis Gray, the forensic anthropologist who was at the gravesite to observe the excavation as well as identify and distinguish human remains from animal remains found scattered outside the graves.
Beginning with the court’s afternoon session on Wednesday, the prosecution moved to take the proceedings and the case it is pursuing against Merritt to the next level by playing for the jurors the recording of an interview with Merritt conducted by two San Diego County Sheriff’s Department homicide detectives on February 17, 2010, 13 days after the day prosecutors allege Merritt killed the McStay family. Those investigators, Troy DuGal and Suzanne Fiske, were yet pursuing the matter as a multiple missing persons case, pursuant to the San Diego Sheriff’s Department’s protocol of bringing the homicide division into missing person cases ten days after a person has or persons have last been seen. Although there was no hard evidence to suggest the family or any of its members were dead and there were grounds, later mistaken it turned out, to suggest the family had gone to Mexico, DuGal, as the lead detective on the matter, was at that point concerned that the matter might involve multiple homicides. He and Fiske had come to Rancho Cucamonga, where Merritt lived, on February 17, 2010 after Fiske had contacted Merritt to arrange to speak with him about the McStay family’s disappearance.
Prosecutors played the audio recording for the jury because they believe it, or certain elements of Merritt’s responses to the detectives’ questions on it, evince guilt on Merritt’s part. The two-hour- 42-minute-and-26-second long interview was conducted at the clubhouse of the Homecoming apartment complex where Merritt resided because his girlfriend and their children were in their apartment suite.
The audio was the first time that Merritt, 61, has been heard by the jury. Throughout the trial, he has been seated at the defendant’s table, in a dress shirt, actively engaged in his defense by listening intently to the prosecution’s witnesses, occasionally making notes as that testimony unfolds and passing them to his defense counsel. For the most part, Merritt, who is somewhat professorial in his aspect and bearing, has evinced a calm and even demeanor and maintained his equanimity during the proceedings.
The prosecution believes that the DuGal/Fiske interview furthers its case, primarily upon the strength of a handful of times during Merritt’s exchange with the investigators when he slips into the past tense when speaking about Joseph McStay and his family. This, the prosecutors maintain, is a strong telltale indication that Merritt – at a point where virtually all of the McStay family’s relations, friends and associates still considered the family to be missing and while there was no concrete indication or confirmation that they were dead – had guilty knowledge of the murderous events he had engaged in.
While Merritt’s use of the past tense perhaps supports the interpretation the prosecution suggests, on some of those occasions Merritt is responding to questions posed to him in the past tense by the detectives. On a few others he slips into the past tense in recounting how Joseph McStay had conducted his business while he was previously present to do so. In a few instances, Merritt uses the past tense in a way that seems unprompted.
Other elements of the interview conversely lend themselves to the suggestion that Merritt had no involvement in the disappearance or murders of the family. Moreover, Merritt’s vocal presence on the recording and his informal and sometimes friendly back and forth with the two detectives humanizes him in a way that is in seeming contrast to the monstrous image that has attended him since his arrest and the accompanying depiction of him as a sociopath who used a hammer to savagely bash in the brains of the wife and two young children of his business partner to avoid being held to account for a string of relatively minor thefts.
The interview was conducted under circumstances in which DuGal and Fiske held both a psychological and situational advantage over Merritt in that he had at the time a felony warrant for his arrest due to his having failed to report to serve 23 days remaining on a 46-day sentence on a commercial burglary conviction after he had served the first 23 days, was granted a furlough so he could maintain his employment status, and then failed to report back to complete the remainder of his sentence. At various times throughout the recording DuGal and Fiske can be heard using a classic good cop-bad cop routine in pressuring Merritt to cooperate with them or adjust and revise his responses. On the recording it is revealed that prior to the interview it was Fiske, at that point functioning in the role of good cop, who had succeeded in reaching Merritt to schedule the meeting for the interview, which she had indicated pertained to the situation involving the McStays while telling Merritt she knew there was a warrant issued for his arrest. Fiske, the recording reveals, told Merritt that she and her investigative partner wanted to conduct the interview with him and that she was willing to not effectuate his arrest if he cooperated by meeting with her and her partner, but that she could not speak for DuGal, though she indicated she would speak to DuGal about that issue and she would get back to Merritt about that before the interview took place. She then failed to get back to him. Merritt, despite suspecting that he would be arrested by her partner upon meeting with DuGal and Fisk, did not flee the interview.
During the interview, Merritt said he was prepared to speak with them “even if you did make the decision to arrest me. This is just too important to put off. Joseph’s life is at stake. My little bullshit with this felony is a lot less important than Joseph and his family.”
One way in which the interview with DuGal and Fiske appears to clear Merritt rather than implicate him is that he tells the detectives that the family’s flight to Mexico doesn’t seem likely to him. When the detectives query him on the subject, Merritt says, “Joseph’s mom keeps saying they went to Mexico and caught a plane to wherever,” but Merritt says he is not so convinced. “I don’t think Joseph would take those kids into Mexico for any reason unless – there is a possibility it would be into Tijuana, maybe you know how you just go over and go to the little square there, maybe there, but I don’t think Joseph would take them in there.”
In this way, Merritt’s statement is inconsistent with the prosecution’s contention that Merritt drove the Isuzu Trooper to the border to mislead investigators as to the family’s actual whereabouts.
DuGal asked what he thought had happened to the family.
“I haven’t formed any opinion because Joseph doesn’t have any enemies,” Merritt said. “Everybody liked Joseph. He has no financial problems that I know of. Things were tight because of the economy but over the last couple of months things have started to pick up. Everything was looking really promising and Joseph didn’t have that much of a problem financially anyway. I know for sure his bills are paid.”
DuGal asked what would happen if Joseph McStay did not return.
“My business is done,” Merritt said, indicating he had been highly dependent on Joseph to generate the job orders from customers for the waterfalls he built, and that Joseph handled virtually all of the financial transactions relating to incoming money.
Detective DuGal asked if he had anything to gain from McStay disappearing.
“I have nothing to gain,” said Merritt.
DuGal asked him if he had assisted the family “go somewhere. You didn’t participate – nothing to do with the disappearance, whether it’s good or bad?” DuGal asked.
“No, in any way shape or form,” said Merritt. “ I don’t know of anybody that has anything to gain by Joseph being gone. I think everybody that I know has everything to lose, everything. This business stems almost solely around Joseph. He does all of the business.”
Merritt confirmed that he and Joseph McStay had met at the Chick-fil-A fast food restaurant in Rancho Cucamonga not too distant from his home in the early afternoon of February 4 and that they had discussed issues relating to two of the waterfall projects they were working on and that there had been an exchange of checks relating to the ongoing work. To a question from DuGal that seemed to suggest that Michael McStay, Joseph’s brother, was present at the meeting, Merritt indicated that Michael was not there and that the meeting had involved only him and Joseph. He said that the meeting lasted a couple of hours and that it could possibly be documented as occurring because he thought Joseph might have used his credit card to pay for their meals.
Merritt said he and one of Joseph McStay’s other professional associates, Dan Kavanaugh were scrambling to keep Earth Inspired Products intact during Joseph McStay’s absence.
“Dan is now trying to send me some emails and wanted me to try to salvage some of the jobs that they are trying to send back, you know, because we they can’t get a hold of Joseph, they’re pissed off, things like that, and projects people are calling in for, saying, ‘We’re ready to do them, can you get a hold of us,’ and I’m trying to call them but I can’t do what Joseph can do. There’s no way. I manufacture. I’m a builder. I can’t sell them.”
“So in Joseph’s absence are you going to be able to maintain the business, though?” Detective DuGal asked.
“If he’s gone permanently?” said Merritt, seeking clarification on the question.
“No, within the next six months?” asked DuGal.
“I don’t know,” said Merritt. “I don’t know. Dan is coming here. I don’t know. I have my doubts, because there’s just too much to do. Joseph did all the drawings. He was on the phone with customers ten hours a day, everyday, all day long. I don’t know anybody that can step into his shoes and know what he knows, all the contacts he has for the types of pumps and lights and everything that he knows just isn’t there now. I can still build waterfalls. I’m pretty sure I’ll survive, if I have to go get a job at Home Depot. I’m not sure we’ll be able to make the waterfall company continue. It depends a lot on Dan, if he can step up and get some stuff done and he says he’s trying, he’s working on it, he’s trying to get some sales done.”
Of note is that Merritt’s defense team believes that it was Kavanaugh who murdered the McStay family, and that San Bernardino County Sheriff’s Department investigators ignored that possibility. Kavanaugh asserted an alibi, namely that he was in Hawaii when the McStay family disappeared. According to Merritt’s legal team, however, airport records do not verify that Kavanaugh had boarded a flight for which he had a ticket. Merritt’s defense attorney’s suggest that the purchase of the never-used airline ticket was part of Kavanaugh’s effort to construct a false alibi. DuGal’s questions of Merritt, however, indicate that San Diego County authorities were suspicious of Kavanaugh’s alibi as early as February 2010.
“Dan’s in Hawaii?” asked Detective DuGal.
“Dan’s flying here today,” said Merritt.
“But you’re sure he’s in Hawaii?” asked DuGal. “How long has he been in Hawaii?”
“As long as I’ve known Joseph, as far as I know,” said Merritt.
“So, two-and-a-half years?” asked DuGal.
“I think so,” said Merritt. “I’ve never known him to not be in Hawaii. I’ve never met Dan.”
The defense attorney’s theory is that Kavanaugh killed Joseph McStay and his family because he was embittered over Joseph McStay cutting him out of the Earth Inspired Products operation and its money flow.
Merritt told DuGal and Fiske he had talked to Kavanaugh directly “only over the last week. I never talked to him before this happened to Joseph. I had never talked to Dan, ever. I’ve known of his existence. I knew his role in Joseph’s business. I knew Joseph had almost paid him off and I think he was paying him $50,000 for his part in the business. I think that was the number. I’m not sure about that. But I know that he had only $2,000 left to pay and Joseph was going to then own Earth Inspired Products and just pay him to run the website instead of them being partners because up until he paid him off he was going to be his partner. I know that. We talked about that all the time. Joseph was always afraid: Six, seven months ago, Joseph and Dan had a spat. I don’t know how deep it was or anything. It was six or seven months ago, I think. They decided at that time that Joseph was going to pay him for his part of the business and for what he had done to build the website because Dan is extremely adept at website building and he’s like a big hacker from what I know of from him personally when I talked to him over the last week. I was talking to him the other day and I said something about him knowing the web and he said, ‘Yeah, I’m not a person you want to piss off on the web.’ I said, ‘Yeah, Joseph told me there is a lot you can do. You could shut the website down.’ Joseph was afraid he was just going to push a button and the website would be gone because that’s what Dan said when they clashed. Dan said, ‘This is what I want. I don’t want to continue working this website.’ So, Joseph made a deal with him to buy his part of it because Dan wasn’t making enough money. I don’t even know what it was, but I know a while back they decided Joseph was going to buy him out and was just going to run the website. That’s the extent of it that I know of.”
In response to questioning by DuGal and Fiske about his efforts to contact Joseph McStay in the days after he went missing, Merritt said that he tried to reach him on “Friday [February 5, 2010] by telephone. I probably tried every day and a few times on Tuesday and Wednesday [February 9 and 10]. Joseph’s mom may remember the exact day. I believe I drove to Joseph’s house on the ninth or tenth. I knocked on the door, rang the doorbell. His white car [the Isuzu Trooper] wasn’t there. Their dogs were barking.”
Merritt said that in the backyard he saw that “the water dish inside the shed was empty. They had no water. I filled the water dish.”
He said it was clear something was amiss because “They never kept them [the dogs] outside. I would not see Joseph leaving his dog outside.”
The part of the interview recording which the prosecution presumably deems valuable to its case comes some three-quarters of the way into the interview, at roughly the 1 hour and 59 minute and 30 second mark, when Fiske, who all along had been playing the role of the good cop, suddenly transitioned into being the bad cop. Ignoring that DuGal had several times framed his questions in the past tense, Fiske zeroed in on Merritt’s occasional use of the past tense in referring to Joseph McStay.
“Do you have any knowledge or information that indicates to you that they are dead?” Fiske asked.
“No,” Merritt responded.
At that point Fiske pounced. ““The reason I ask is because you have used the past tense about Joe a couple of times,” Fiske said, “You said, ‘Joe was.’ Typically, people don’t do that, if they think people are alive. Any explanation as to why you may have done that?”
“Not really, I just… Nah, I…” Merritt said, for the first time in the interview struggling to come up with words.
“Do you understand what I am asking?” Fiske asked, tacitly accusing Merritt in being involved in the family’s demise.
“Of course. I completely understand,” said Merritt. “But no, I’ve never really even thought of him as possibly being — well, I can’t say I haven’t thought of him as possibly being dead, because I have, but I don’t like to think of it that way, of course.”
Fiske did not relent, but pressed on, saying, “It is interesting. We deal with families of people who have passed all the time. Oftentimes we will notify them their loved one is dead and they will still use the present tense. You used the past tense a couple of times, which is real unusual.”
“Yeah,” said Merritt. “I have no idea. I’m not sure what I used the past tense in context with, but I have no idea why.”
“You said, ‘Joe was my best friend,” Fiske said.
“Oh,” Merritt said. “I did.”
“You did,” said Fiske.
“I don’t know why,” said Merritt.
“Did you guys have a falling out at all?” Fiske asked.
“Never,” said Merritt. “Never.”
“So, it wouldn’t be like, ‘He was my best friend, but now we’re just…” Fiske said.
“No,” Merritt interrupted her before she finished the question. “Absolutely not. Joseph is…”
“Still your best friend,” Fiske said.
“Oh yeah,” Merritt said. “Definitely.”
Merritt described Summer McStay as “verbal.” He said that Joseph had told him that his brother Mike and Summer “couldn’t get along.”
He said that Joseph referred to Summer as “My little Colombian girl.” He said that many of Joseph’s friends did not like Summer. “Everybody that loves Joseph – I can’t say everybody – but most of the people who love Joseph dislike… Summer.”
“Why is that?” asked Fiske.
“Because she has always treated Joseph -” Merritt began, and then said, “Everybody told Joseph don’t marry her.”
“Why,” asked Fiske.
“Because she’s a pain in the butt,” said Merritt. “She’s just very, very difficult. He would always say, ‘No, no, she’s just Colombian. He always talked about her being Colombian as something positive.”
Despite the attitude of others toward Summer, Merritt said, Joseph was absolutely committed toward her. “He definitely loved her,” Merritt said.
Merritt described Joseph McStay as generous. “Joseph is just a super-nice guy,” said Merritt. “He’ll give you the shirt off his back. He’ll do anything for you.”
Merritt said the financial arrangements in the business between him and McStay were very casual.
“Mine and Joseph’s running tab is he owes me $10,000, I owe him $15,000, he owes me $5,000, I owe him $15,000,” said Merritt. “It just goes.”
During the interview, Merritt indicated to DuGal and Fiske that he had access to Joseph McStay’s QuickBooks account for Earth Inspired Products and had upgraded that accounting system, by which checks were issued, from an earlier version to QuickBooks Pro.
Merritt told DuGal and Fiske that in the days after the McStay family first dropped out of sight, he had a greater degree of concern over what might have befallen them than others apparently did and that his own wife voiced greater concern than had Joseph McStay’s mother and brother at that point. “My wife is still chewing my ass out about me not calling the police,” Merritt said. “Mikey and his mom kept saying, ‘I know Joseph, and he probably just wanted to be away from California or whatever, and they’re probably on vacation and they’ll be back.’ And Mikey said ‘Well, if they took a ten-day vacation, which most vacations are, they’ll be back no later than Sunday and so on.’ And I was just like, ‘Just call the police. I told his mother, ‘It’s not going to hurt anything. It’s not going to cost anything.’ And that day, on Saturday [February 13], I told Mikey, I said, “What if Joseph did go to the mountains and he drove off a cliff? And he’s gone 200 feet down a ravine and nobody sees the car down there for two or three weeks?’ I said, ‘You should call them now.’ That’s when he said, ‘We’ll wait until tomorrow. Today’s the absolute last day.’”
Merritt told DuGal and Fiske that on February 13, 2010, after arranging to go to the McStay’s residence in Fallbrook with Michael McStay, he had to meet Michael McStay and his wife and children at a gas station in Fallbrook because Michael McStay at that point had never been to his brother’s house. Merritt said that after they got to the McStay residence that day, they each went around the neighborhood to check with nearby residents if any of them knew about the family or where they had gone. Merritt said that upon Michael McStay arriving at his brother’s home and taking stock of the situation, the seriousness of the circumstance seemed to dawn on him. “Mikey was walking around, kind of talking to himself,” Merritt said. “He didn’t seem to be in very good spirits. He was upset, which I can understand why.”
Merritt said Michael McStay gained entrance to his brother’s family residence by going through the he window to the home’s office at the back of the house.
“Did you go in?” asked DuGal.
“Yeah, he went to the sliding glass door, let me in the sliding glass door, and then I went to the front door and let his wife and kids in because they had to go to the bathroom pretty badly,” Merritt said.
Merritt’s statement clashed with the testimony provided by Michael McStay during the first week of the trial. Michael McStay said that Merritt did not enter the house, even though he had opened the sliding glass door to let him in, and that Merritt explained his reluctance to go inside because he had an outstanding arrest warrant.
Merritt said he did not go upstairs while he was at the house on February 13.
Merritt also told the investigators that the light on the desk in Joseph McStay’s home office was on when they were there on February 13, 2010, which he said was consistent with Joseph McStay’s custom. “I can tell you beyond a shadow of doubt, I know for a fact that light, I’ve never seen it off. He always left it on because his kids get up in the middle of the night and they get water out of the refrigerator and he always left that light on so they didn’t fall down the stairs.”
Merritt gave a description of the house’s interior, and to Fiske’s question about where the family members slept, Merritt said he believed all four members of the family slept together in the house’s master bedroom upstairs.
Throughout the interview, there was little hesitation in Merritt’s responses to questions and he gave the impression of being candid, consistent and calm, even in the face of sometimes pointed questioning. He did not dodge any questions, nor overly rely on a lack of memory in seeking to avoid making an answer.
With a single exception, on those occasions where he paused or hesitated in answering, Merritt seemed to be searching his memory for the detail or details he then provided in a matter-of-fact manner. When Fiske was pursuing one line of inquiry, that which pertained to whether Joseph McStay or he had any business dealings in Mexico, Merritt did make an uncharacteristic delay in providing his answer.
“Did he [Joseph McStay] have anybody he did business with in Mexico or near the Mexican border?” Fiske asked.
“Not that I know of,” said Merritt, with no delay.
“Did you have anyone that you did business with?” Fiske asked.
“No, none,” Merritt responded immediately.
“When was the last time you were down by the Mexican border?” Fiske asked.
Eleven seconds elapsed before Merritt said, “Probably…” and he then delayed another seven seconds before saying, “I want to say a year ago. I went to Tijuana.”
“About a year ago,” said Fiske.
“Yeah,” said Merritt.
“Have you been down to San Ysidro or Mexico since?” Fiske asked.
“No, uh-uh,” said Merritt.
“Not at all?” said Fiske.
“Not at all,” said Merritt.
After a slight pause Merritt said, “The only time, the reason I went into Mexico is specifically, I specifically went there to get, specifically, something specifically.”
“What kind of thing?” asked Fiske.
“Viagra,” said Merritt.
“Okay,” said Fiske.
“You can get Viagra there over the counter. So, about a year ago, I went there and got Viagra. . ‘, said Merritt.
During the interview, Merritt came across as being straightforward, sincere and earnest in wanting to assist DuGal and Fiske in getting to the bottom of the family’s disappearance. He seemed intent on being as accurate and factual as he could in his responses and he did not seize any of several opportunities to cast suspicion on any of the various people in Joseph McStay’s orbit. When pressed, he offered, with what seemed to be slight understatement and polite reservation or reluctance, derogatory information about others as those issues came up in the course of the questioning.
Based on tension apparent in his voice, the only nervousness discernible came when there was discussion with regard to Merritt’s outstanding warrant, and whether DuGal and Fiske would or would not take him into custody as a consequence of it. That level of tension did not seem to be provoked in Merritt by any of the other questioning or discussion throughout Merritt’s encounter with the two detectives.
At two points during the interview, Merritt talks about his own young son, referring to him as “my little guy” and saying, “He’s a perfect little kid. I’m partial, of course.” The emotion and affection he expresses for his own offspring, not distant in age from the McStay children, comes across as absolutely genuine and seems incongruous with the suggestion that just 13 days before he had bludgeoned the children of the man he called “my best friend.”
Indeed, if Merritt is guilty as the prosecution is alleging, his performance during the interview with DuGal and Fiske demonstrates he is one cool customer.
Unclear at this point, beyond the discrepancy between Michael McStay’s testimony that Merritt did not go into the McStay residence on February 13 and Merritt’s statement that he did, are what further contradictions exist between Merritt’s statements to DuGal and Fiske and evidence to be presented later in the trial which could serve to boost the prosecution and undercut the defense. The prosecution is playing its cards close to the vest, and holds in reserve material, including records of financial transactions and further recorded interviews of Merritt with investigators which it is anticipated will be presented to the jury.
In the day-and-a-half of testimony that came before the playing of the audio recording of DuGal’s and Fiske’s interview with Merritt, five witnesses had been heard from. Tuesday morning, David Sequeida, who was in the midst of his testimony on January 17 when the court recessed until this week, was again on the stand. On January 17, Sesqueida had testified that a loosely-knit partnership of sorts had existed between his father’s business, Metro Sheet Metal, which supplied the sheet metal and the foundry where fabrication could take place; Merritt, who built the waterfalls and water fountains; and Joseph McStay, who marketed the water features that were produced.
On Tuesday morning, Sequeida testified that the venture involving Joseph McStay, Charles Merrit and Metro Sheet Metal lasted less than a year. Sequeida acknowledged that during the time Merritt was working at the Metro Sheet Metal premises, located in Azusa, he had befriended Merritt “but I never invited him to my house or anything like that.”
“At some point in your relationship there was a falling out, correct?” Raj Maline, one of Merritt’s defense attorneys asked.
“With me and Chase, no. It was my father,” said Sequeida, who characterized the problem as arising over a disagreement with Merritt in regards “to him working in the shop.”
“You were afraid that if he were to get hurt, that would expose your company to some liability, correct?” asked Maline.
“Of course,” said Sequeida, who further indicated that he and his father had misgivings over Merritt’s use of Metro Sheet Metal’s equipment.
“I tried to rein in his activity because he was not familiar with the equipment and at best he was a butcher when it came to stainless steel,” said Sequeida. “He didn’t know how to work stainless steel.”
Maline probed about a “shouting match” involving Merritt that occurred at the Metro Sheet Metal factory. Sequeida said that argument involving Merritt was with his father and that he had not been involved in it. “I was always trying to keep the waters calm and continue working,” Sequeida said.
Sequeida said that after that confrontation between Merritt and his father, he did not want Merritt around.
“He wasn’t to be trusted,” said Sequeida.
To Maline’s suggestion that he held a grudge against Merritt, Sequeida said, “No.”
To Maline’s question, Sequeida said he was not aware of the percentage split between McStay, Merritt and Metro. Sequeida said he did not know the exact arrangement between McStay and Merritt with regard to the Earth Inspired Products, but that “Chase [Merritt] said they were partners.”
The “type of relationship Chase had with Joseph” Sequeida said, “didn’t concern me.”
Sequeida testified that he was looking forward to the venture involving his father’s business, Merritt and McStay, and that it was lucrative, at least “when it started out.”
Sequeida acknowledged that “Chase came up with a diffuser that was of use in the waterfall fabricating process.” He said that at one time Metro Sheet Metal “did all the stainless steel work, the trough that held the pump and the water, all the the uprights everything that would hold the glass in place” on the waterfalls.
On January 17 Sequeida gave testimony to indicate that Merritt’s productivity in the fabricating process had begun to slip toward the end of the arrangement between Metro Sheet Metal, Merritt and McStay. On January 21, however, he acknowledged that during that period Merritt was installing the completed projects all over the country and that he had installed a waterfall custom-built for Paul Mitchell in New York during that timeframe.
“It wouldn’t be so far-fetched for Chase to be gone for several days if he had to go and install the Paul Mitchell one in New York, correct?” Maline asked.
“If he had to go install that, correct,” said Sequeida.
Sequeida testified that Merritt did not have free access to the Metro Sheet Metal shop or a key.
Sequeida injected into his testimony that he had “a conversation about gambling” with Merritt and that “he mentioned on one occasion that there was a system” Merritt could use in placing his bets to ensure he could make money before Maline foreclosed that avenue of inquiry.
Maline sought, and to some degree succeeded in wringing from Sequeida an indication that his father’s dispute was less with Merritt and more with Joseph McStay, and that his father wanted to cut ties with Joseph McStay rather than Chase because of the dispute over money.
“Joseph wasn’t telling your father what the selling price of the fountains were,” said Maline “Do you remember that?”
“Yes, there was some issue with that,” said Sequeida.
“And your father was upset because he wasn’t able then to quote an appropriate amount so he could make whatever profit he wanted to make,” said Maline.
“He just felt he wasn’t being forthcoming with what the fountains were being sold for, where his price should be,” said Sequeida.
“Your father was angry about that,” said Maline.
“Describe angry,” said Sequeida.
“He called Joseph a crook,” said Maline.
“It’s possible. My dad does fly off the handle, yeah,” said Sequeida.
When Maline asked about Dan Kavanaugh, Sequeida said, “I did not hear that name until the Joseph McStay family went missing.”
Sequeida said he was present for conversations between Dan Kavanaugh and his father after the McStay family’s disappearance and “at the end because there were some issues with the Saudi Arabia job.” The Saudi Arabia job was a large scale waterfall project that was entering production just as the McStay family disappeared.
On redirect examination, Supervising Deputy District Attorney Brit Imes asked Sequeida, “Do you remember any time when the defendant was in or around Metro Sheet Metal him being injured in any way on stainless or a machine or anything like that?”
“No, sir,” said Sequeida.
“Suffering any cuts, broken bones, things dropped on his head?” asked Imes.
“No, sir,” said Sequeida.
“What jobs did you have to work on due to the defendant’s absences?” Imes asked.
Sequeida said he could not describe the jobs, per se, because he knew the assignments “by job numbers.”
“You said the defendant was not to be trusted,” said Imes. “Why?”
“His lack of experience utilizing the equipment,” said Sequeida. “His welding skills weren’t consistent with what we wanted to put our name on.”
Judge Michael Smith, who is presiding over the trial, asked Sequeida if he knew what project a check from Earth Inspired Products pertained to that McStay had entrusted to Merritt to be delivered to Metro Sheet Metal which Sequeida had previously testified had not been received. Sequeida said he did not know.
The next witness was John Charles Bluth, who confirmed he was dirt bike riding when he came across the top part of a skull, which subsequent testimony from others established was determined to be that of Joseph McStay, Jr.
Bluth said he was riding alone on his Kawasaki in the desert on November 11, 2013 in the area of Stoddard Wells Road and Quarry Road, looking for a motorcycle trail which he failed to spot. “I thought I’d passed the trail but I wasn’t sure so I kind of went up a ways and off the road and circled back to angle towards it,” said Bluth. “ Well, I didn’t find it, the trail, that is. On the way back to the dirt road, I stumbled across the remain.”
“So you saw something that attracted your attention?” Imes asked.
“Yes,” said Bluth.
“At the time did you know what it was?” asked Imes.
“A bone,” said Bluth.
“Did you know what kind of bone?” Imes asked.
“No, not for sure,” said Bluth.
“What about it attracted your attention to make you stop and go ‘Hey, what’s that?’’” asked Imes.
“It looked out of place,” said Bluth.
He said he stopped and put his bike on its stand and looked at it. “I thought it might be human,” he said, and called 911.
He said he did not handle the bone but “turned it over with a stick.”
After a deputy responded, he showed the bone to the lawman, he said.
The deputy, he said, called the forensic team.The recording of Bluth’s 911 call was played in court.
Gary Hart, who was a sheriff’s homicide detective for 23 years and has now been promoted to sergeant, next testified. Hart said he was dispatched to the scene on November 11. Subsequently, according to Hart, an investigative team of four detectives and one sergeant arrived at the scene. What were believed to be remains were found, Hart said, but dusk was approaching and the investigators were running out of daylight. A deputy was stationed on high ground all night to make sure nobody touched the evidence, he said.
Hart testified that on November 12, roughly 15 sheriff’s personnel returned to the scene and did a line search, walking in a methodical fashion across the desert floor, covering 64 acres over several hours. Hart said two graves were found and excavations were initiated. He said the excavations unearthed bones and clothes in the two graves and that the investigative team found animal activity near and around the area of the graves. Photos were displayed for the jury. Hart said he secured the site and Dr. Alexis Gray, a forensic anthropologist, was brought in to assist in the excavation and the gathering of remains outside of the graves through her expertise in determining as human or animal the bones being collected.
Hart said a compass was used to orient the team as to direction and location, and as a way of marking items found. He said an awning was pitched over the gravesites to limit the excavation team’s exposure to the sun. He said he noted the presence of deep and grooved truck tire marks at both graves.
Hart read an exhaustive list of bones found, which included a scapula, femur, ribs, fragments and many bones found outside the graves, including fingers found 84 feet from the grave. The bone item furthest from the grave was at a distance of 224 feet, Hart said.
Hart stated he had completed death investigations in the desert in the past in which the scattering of bones was consistent with this case.
Following Hart to the witness stand was Sergeant Jose Armando who in 2010 was a detective assigned to the department’s homicide detail.
Avila said on November 11, 2013, he had been given a call to respond to the desert area north of Stoddard Wells Road east of Quarry Road and West of the I-15 “regarding human remains found.” He said he understood that other department personnel had been at the scene on November 11 but that he arrived there the next morning between 6:30 a.m. and 7 a.m. where he participated in a briefing involving investigative personnel as well as those from the office’s coroner’s division. They set up a command post, Avila said. From aerial photos of the area taken that day displayed to the jury, Avila pointed out the area of the graves and the command post. Avila said a line search was conducted for evidence and that thereafter, “I was assigned to document the excavation of one of the graves.” Avila identified that as “grave B,” which contained the remains of Summer McStay and Gianni.
He said that the excavation of grave B had begun prior to his arrival and that some items had been recovered or removed from the grave prior to his arrival.
Avila said that during his presence “remains, basically skeletonized remains, bones, some clothing items” were removed from the grave. He said that “As the excavation continued, other items such as a phone case, and ultimately a sledge hammer” were unearthed from grave B. He identified for the jury photos of various stages of the progression of the excavation, ones depicting hair, bone fragments, portions of the skeleton and skull, as well as a pair of pants and panties subsequently determined to have been Summer McStay’s that were removed from the graves. Also found and removed from the grave during his presence, Avila said, was a child’s backpack.
“During the excavation, were there multiple bones recovered as the dig went through the dirt?” Imes asked.
“Yes,” said Avila.
Avila said the ultimate depth of the grave was eighteen-and-one-half inches.
Imes displayed for the jury on the courtroom’s monitors a photo of the head of the sledge hammer as it was being uncovered in the grave. Avila said it lay at a depth of about 17 inches. Avila said it was a “Stanley three-pound sledgehammer.”
“Who was ultimately responsible for the collection, the documentation and the processing of all of the items that were removed from the gravesite?” Imes asked.
“That was a coroner’s office responsibility,” said Avila.
Avila said Sheriff’s Crime Scene Specialist Heatherly Radeleff was responsible for processing the items removed form the grave.
On cross examination by Merritt’s defense attorney, James McGee, Avila said he had assigned himself to monitor the excavation of grave B and had assigned Detective Edward Bachman to oversee the excavation of grave A.
On November 12, Avila said he was serving in the capacity of case agent in the investigation of the gravesites, in response to McGee’s questioning.
McGee asked if Avila had assigned Becky Burnell to assist Bachman in the excavation of grave A. Avila said he did not remember who had assisted Bachman.
“Ms. Burnell – you said she was a volunteer?” asked McGee.
“Correct,” said Avila.
“Did she have any expertise that would have allowed her to be in that crime scene?” McGee asked.
“I don’t know that,” said Avila.
“Did you let someone into your crime scene without knowing whether she could contaminate evidence?” McGee asked.
“Objection, argumentative,” protested Imes.
Judge Smith sustained the objection.
Avila said that after the excavation of the grave was completed it was determined that the dimensions of the grave were 72 inches in length, approximately 20 inches in width at the middle and approximately 18.5 inches in depth at the deepest level.
“You said on direct [examination] that part of grave B was sunken below the regular ground level. Do you remember that prior testimony?” asked McGee.
“Yes, said Avila.
“And you also stated that part of the excavation process started before you arrived,” said McGee.
“Correct,” said Avila.
“Did you see grave B before the excavation started and that’s when you saw the sunken area?” asked McGee.
“Yes, I did,” said Avila.
“So, it was based on a prior observation before everything started?” said McGee.
“That is correct,” said Avila.
Avila said that the excavation of the grave, in addition to progressing from the top to the bottom also progressed from the north side to the south side.
Under redirect examination by Imes, Avila indicated that exhibit 748, which was provided by the defense, was in error and in contrast to exhibit 222, provided by the prosecution, in that the sweatpants and panties were listed as being a little left of center but that they were found at the top of the grave near Summer McStay’s head. Avila said that a listing placing the sledgehammer at the south end of the grave was “inaccurate.”
“Where do you recall it being seen in the grave?” asked Imes.
“It was just about the middle of the grave,” said Avila. “It was east of the adult remains and above the child remains. The skull of the adult female was near the top of the grave…”
“The north end of the grave?” Imes asked for clarification.
“Yes,” said Avila. “The child remains were toward the bottom half of the grave. The sledgehammer was located east of what I would estimate the torso of the adult female and above the skull of the child and a little bit east in the grave.”
On recross examination, when McGee sought to get before the jury that exhibit 748 was not a list of the items in the grave as they progressed from the north to the south but from the top to the bottom, he encountered a series of objections from Imes that were sustained by Smith.
“When everybody was working the gravesite excavation in your presence, did you see that everybody had some type of gloves or protection on their hands when they were working that scene?” McGee asked.
“As far as I remember, yes,” said Avila.
“So at no point you saw anybody with gloves off, touching anything with their bare hands?” asked McGee.
“That’s correct,” said Avila.
“As far as you could direct, everybody that was working that scene was trying to maintain the scene integrity of the evidence being removed. Is that a fair statement?” asked McGee.
“Yes,” said Avila.
“And you saw no lapses in that the entire time you were there?” asked McGee.
“Not that I can recall,” said Avila.
Dr. Alexis Gray, a forensic anthropologist who consults to the sheriff’s departments and coroner’s offices in San Bernardino, Riverside, Kern and San Diego counties and responded to the burial site on November 11, 12 and 13, 2013 testified on Wednesday morning, January 23. She had previously examined skeletal remains over 500 times and had encountered skeletal remains that had sustained blunt force trauma approximately 200 times.
Gray said she was requested to go to what what was later determined to be the scene of the McStay family gravesites on November 11, 2013 and was called upon to make a determination as to whether the skull bone, later established to be that of Joseph McStay, Jr., was human on nonhuman.
She said she arrived there as members of the sheriff’s department were securing the scene.
“In this case I determined the remains were human,” she said.
Gray said she took photos of the scene upon arriving there. Upon examining the bone in question, she determined it was the “frontal” bone of a child. She asked, she said, “if we could then do a quick canvas because children’s remains in particular get carried off quite easily by animals, so if we could preserve anything, now is the time.”
She said they then “walked about in animal tracks and riverbeds, in those places where animals would carry remains to feed. We spread out some distance and then came across a femur of an adult, and then close to that, the gravesites.”
Dr. Gray said she spent around two hours at the site that day and returned the following day near dawn where she waited for the other responding personnel, a total of between 20 and 30 people, she estimated. They did a briefing and then walked into the area near the graves single file. Personnel were directed into teams by the homicide detective on scene and Robert Hunter, who was a supervisor in the sheriff’s department’s coroner’s division.
Deputy District Attorney Melissa Rodriguez, who handled the direct examination of Gray, asked, “How do you and this team ensure that you’re not going to contaminate anything with your own DNA?”
“I’m not sure that we don’t,” said Gray.
“Why?” asked Rodriguez.
“In an outdoor crime scene environment, it’s impractical,” said Gray. “It’s impractical to imagine that we would suit up to get into a hole. In Europe, they do it that way. But here, we’ve never done it that way.” Gray said she has already submitted a sample of her DNA to the Department of Justice so hers will not be confused with DNA analyses being done off evidence churned up at the crime scenes she is involved in processing. “DNA can be recovered in a lab from the remains or from anything if it’s intact, but it’s not something we would try to necessarily recover at that location.”
Gray said the team made an estimate of the dimensions of the grave and then began to excavate, revising its estimate as they proceeded. She said that Hunter was observing the progress of the excavations of graves A and B, putting information about the progressions of the excavations into his report. Gray said she was involved primarily in the excavation of grave B, while the excavations of both graves were ongoing simultaneously.
Multiple photos of grave B were displayed on the courtroom’s overhead and sidewall video displays. Gray testified that it was evident that “some sort of canine carnivore, some coyote or dog, has pulled at the grave and changed it from what it was at the time of placement.”
Gray identified from a series of photos presented to the jury body parts extracted from the grave as it was being excavated.
Gray said she was also engaged, while she was at the scene, in identifying items that were flagged by searchers walking the area around the gravesites.
She had to leave in the afternoon because of a class she had to teach that evening. She said she returned on November 13, and that the excavation of grave B was not completed. She said she did not participate in the further excavation of grave B, but instead went around to all of the flagged remains in the general area to ascertain which of those were and were not human. She said efforts were made to ascertain the distances of the human remains that were found from the graves. She said she observed for a short time the progress of the excavation of grave A.
Gray testified that she was present a few day later when autopsies on the recovered bodies were carried out and that she had participated in ensuring that the body parts were assembled and properly differentiated as to victim for the autopsy to take place.
Gray said some of the bones recovered had been exposed to the elements. She said the remains outside were dried out and bleached and that the bones in the grave that were protected were darker in color, somewhat moist and had some tissue yet clinging to them.
Photos of the four sets of remains as they were examined in the coroner’s office were displayed for the jury. Extensive skeletal remains of Joseph McStay, Summer McStay and Gianni McStay were present. Very little of of Joseph, Jr..’s remains were present, consisting of the top portion of his skull located by Bluth, three bones and four bone fragments, indicating most of his body had been carried off by predators.
Rodriguez asked Gray about her observations with regard to blunt force trauma she observed relating to the remains. She said, “I observed a lot of trauma, mostly to the heads, but also to the legs of an adult.”
After the playing of the audio recording was concluded Thursday morning, Sergeant Edward Bachman, who in 2013 was a homicide detective, testified that on November 11 he had been contacted by Homicide Division Sergeant John Gaffney, advising him that human remains had been discovered and he was directed to respond first thing in the morning to a location off of Stoddard Wells Road north of Victorville.
Bachman said after those arriving, including homicide detectives and coroner’s office division personnel, were assembled, they “did a crime scene walk-through of where the skull was located.” He said what was believed to be two gravesites had been located and that he was assigned to oversee the excavation of what was labeled as gravesite A.
Bachman testified that the grave was “sunken down below ground,” which he approximated at roughly three inches at the north end, four inches in the middle and six inches at the south end of the grave. He said portions of what appeared to be a woven blanket were protruding from the grave.
Bachman said he and those he was working with started at the north end of the grave and used brushes and dust pans to remove layers of soil in a methodical fashion, putting the soil removed into buckets. The soil was then taken to sifters to make sure that no bone fragments or other items were missed. In short order, he said, they were encountering what they believed to be body parts, as well as a woven blanket which he said was “soiled with body decomposition fluids.”
As they progressed, Bachman said, “Part of a human skull” came into view. Bachman said they continued with the process and over a two day period found the skeletal remains lying on its side.
After Bachman’s testimony, Heatherly Radeleff, a San Bernardino County Sheriff’s Department crime scene specialist for 17 years, was called to the stand as a prosecution witness. She possesses, Radeleff said, expertise in crime scene investigation, crime scene processing, blood stain pattern interpretation, gunshot trajectory analysis, and evidence detection and enhancement.
Radeleff said that she received instructions on the night of November 11, 2013 to go on the morning of November 12, 2013 to the scene of a crime off of Stoddard Wells Road north of the city of Victorville to meet with detectives and assist with the excavation of some graves. She said that the removal of evidence from the graves was primarily under the control of the coroner’s office and that she assisted by photographing and collecting the evidence but did not herself assist in the excavation of the graves and that she walked about the area documenting the scene after doing a walk-through of the area with the detectives.
Rateleff said she was on the scene from 8:01 a m to 4:46 p.m.
Rateleff said “I could see the freeway from the location” and that there “were more than one grave, more than one decedent and the three of them were completely buried.” She said she was aware that there was a fourth victim. “The briefing I was given, the circumstance was that bones were located outside of the grave, most likely from animal activity,” she said. “So, I knew that one of the decedents had been – the bones were scattered. I witnessed the other three during the excavations.”
Rateleff said the team of investigators “did a line search of quite a large area” and that the scattered bones outside the grave were marked with pin flags which she photographed as she walked about the scene.
Rateleff said that Dr. Alexis Gray took measurements.
She said both graves, one designated A and the other B, were being excavated simultaneously.
Photos that Rateleff took of the items excavated from the graves were shown in the sequence she took them, such that the photographs taken of both graves were intermixed in her progressive photographic documentation, she said.
As photos of the items excavated from grave B, in which Summer and her son Gianni had been buried, were displayed for the jurors on the courtroom’s monitors, Rateleff described them, including bones, a skull, hair, sweatpants and panties, as well as the contents of a backpack found in grave B, consisting of a spoon, a small pickaxe and a brush. Also shown was a sledgehammer taken from grave B. To Imes inquiry, Rateleff noted the sledgehammer had paint on its handle.
She identified a white electrical cord socket displayed for the jurors on the courtroom’s monitors as having been found outside the graves.
She further identified items taken out of grave A, which had contained the remains of Joseph McStay and Joseph McStay, Jr.
She identified a somewhat corroded key stamped with the word “Chateau” as having been “collected” from the right front pocket of Joseph McStay’s short pants, and four keys and the remnants of a key chain found in the left back pocket of those same pants.
Rateleff said she was present during the autopsies of the bodies and that she had retrieved the keys from Joseph McStay’s short pants during the autopsy.
Also in grave A was a blanket with what she called a “pull up” in it. She said a pull up is a “tall diaper.” She was shown two pieces of a red strap, one of which had been in the grave and retained much of its original color. One of the pieces of strap that had been outside of the grave appeared to have been bleached on one side by the sun.
Rateleff identified two pieces of a cut or ripped bra, one found inside grave B and one found outside of the grave.
Summer McStay’s mother, Blanche Aranda, was present on Thursday, sitting quietly observing the proceedings from the front row on the left side of the gallery. Twice, during the direct examination of Rateleff and later during Rateleff’s cross examination, when photos of the corpses in the graves were shown on the courtroom’s overhead and sidewall monitors, Aranda, overcome by the graphic nature of the images, left the courtroom to go out into the court hallway on the second floor to compose herself.
Rateleff was called on to describe various items found outside the graves. She referenced an azimuth circle that had been set down near the graves to allow for the relative location of the items to the graves to be referenced.
Imes asked if Rateleff had processed any footwear. She said that she had not.
An examination of the dark sweatpants removed from grave B were displayed. An orange discoloring in the crotch and internal leg areas was noted. Rateleff indicated the discoloration might have come from bleach.
Under cross examination by James McGee, Rateleff testified that it appeared that Joseph McStay was in grave A lying on his right side. Rateleff also told McGee that the panties and pants found in a “clump” together in gave B were not on Summer McStay’s body when she was in the grave and that in her notation with regard to them she had observed that it seemed as if the “pants and panties were taken off together.”
McGee had some back and forth with Rateleff with regard to the orange discoloration on the sweatpants found in grave B. He took issue with her assertion that the discoloration had necessarily resulted from bleach and suggested that the stain might have been the result of a prolonged exposure to the ammonia content in urine. The exchange was beset with objections from Imes.
McGee questioned Rateleff about measurements taken of the separate sets of tire tracks leading to grave A and grave B. He established from Rateleff’s responses that the distance of the width from the outer side of the right tire to the outer side of the left tire on the vehicle at grave A was 73 inches and that the measurement from the outer side of the right tire to the outer side of the left tire on the vehicle at grave B was 76 inches. McGee’s efforts to extract from Rateleff a conclusion that there were two vehicles involved in depositing the bodies into the graves ran into a series of objections from Imes that were sustained by Judge Smith.
McGee inquired about Rateleff’s evidence collection and processing effort done on the McStay family’s Isuzu Trooper, which had been processed similarly three-and-a-half years earlier by the San Diego Sheriff’s Department shortly after the family went missing.
“You understood that the Trooper was processed by San Diego, correct?” asked McGee.
“That’s correct,” said Rateleff.
“Did you discuss with detectives, ‘We might need to go back through this because they might have missed things?’” McGee asked.
“Yes,” said Rateleff, who said she was looking for fingerprints and latent blood.
“When you did the processing of the inside of the Isuzu trooper, was there anything that you saw that indicated to you the possibility of blood that required further testing?” McGee continued.
“No, sir,” said Rateleff.
“And you checked the floorboards?” asked McGee.
“Yes I did,” said Rateleff.
“The seats?” asked McGee.
“Yes, sir,” said Rateleff.
“The interior?” McGee asked.
“The entire vehicle,” Rateleff said.
“And the other items that were contained within the vehicle, as well, correct?” McGee asked.
“That is correct,” said Rateleff.
Rateleff said she was able to obtain latent fingerprints off of several of the surfaces within the vehicle and had logged that in as evidence.
The San Bernardino County Board of Supervisors along with their predecessors have long done their level best to give a single ambulance company and its corporate successor a competitive advantage over other emergency transport providers as a reward for the generosity that consortium has demonstrated in endowing the supervisors’ political campaign coffers going back decades. Nevertheless, at the prompting of County Executive Officer Gary McBride, all five of the county’s current supervisors are on a trajectory to break down next week and enter into an agreement with an ambulance company that has not lined their pockets.
In the late 1970s, Terry Russ, Homer Aerts, Steve Dickmeyer and Don Reed, all of whom operated ambulance companies on the west and central portion of San Bernardino’s Inland Valley and had been competing against one another for years, consolidated into one entity, Mercy Ambulance, streamlining their dispatch service, and better coordinating with local fire and police departments. Through efficiencies, economies of scale and the sharing of resources, they were able to overwhelm the other ambulance operators they were in competition with, lower their prices, and induce most of those competitors to either go out of business, move elsewhere, merge with them or sell out to them. After pooling their money and initiating a program of making substantial political contributions to local politicians at both the city and county level, Russ, Aerts, Dickmeyer and Reed then used this newfound political clout and influence to have both the county board of supervisors and various city councils “regulate” the ambulance industry, which included essentially adopting as the minimum requisites for an ambulance operation within their jurisdictions the vehicle, equipment and employee training standards Mercy had in place. The politicians were able to do something so blatantly in the interest of their political donor by asserting that these actions enhanced public safety.
Thus, Mercy Ambulance established a political hammerlock on the region. Keeping up its pace of donations to the county’s top local elected officials, the consortium gobbled up ever more key franchises, making its operation yet more lucrative. In turn, the company would use a percentage of the profits it was generating to increase the scope of its political contributions. In return, the grateful politicians ensured that Mercy retained its competitive advantage over its rivals, giving Mercy plum franchises in the county’s most heavily populated areas. While what Mercy established fell slightly short of being an outright monopoly, it was at that point capable of controlling the local ambulance market at will. It then began raising its prices, making up for the rate cuts it had instituted to obtain market dominance and then raising its service rates to a point where customers were openly complaining about being gouged.
As Mercy grew, so did the scope of its operations and its power. The company added helicopters to its line of service and extended its reach all over 20,105-square mile San Bernardino County – a land area the size of four New England states. But as Russ, Aerts, Dickmeyer and Reed aged and grew wealthier, they began, slowly at first, to disengage from and then inevitably pulled out of the stressful emergency response business entirely. A first step in that direction was selling off – at considerable profit – the Mercy Air wing. Thereafter, they sold or let their heirs take on the ground ambulance fiefdom that Mercy represented, and they withdrew into a retirement of luxury and comfort.
It was at that point that American Medical Response came into San Bernardino County as the new kid on the block. As Mercy withdrew, American Medical Response filled the vacuum, simultaneously taking a leaf out of Mercy Ambulance’s playbook, and it too made hefty political contributions. Over time, favored status would be conferred upon American Medical Response in San Bernardino County that would rival that of Mercy Ambulance a generation before. American Medical Response ultimately bought out Mercy Ambulance, thereby inheriting Mercy’s ambulance service kingdom.
Along the way, the county’s corrupt political establishment was able to manipulate the entity formed to oversee emergency service provision issues in San Bernardino County and both Mono and Inyo counties, known by the acronym ICEMA, short for the Inland Counties Emergency Medical Agency. With the permission of the boards of supervisors in Mono and Inyo counties, the San Bernardino County Board of Supervisors acts as the governing body of the Inland Counties Emergency Medical Agency, which was chartered “to ensure an effective system of quality patient care and coordinated emergency medical response by planning, implementing and evaluating an effective emergency medical services system including pre-hospital providers, specialty care centers and acute care hospitals.”
Seamlessly, the board of supervisors capitalized on that authority to lock in the advantages that had already been extended to the ambulance company endowing its members with campaign cash, deriving for themselves an even more lucrative stream of kickbacks.
For decades the county’s supervisors shamelessly indulged in the arrangement. When challenged they would repeat the refrain that the provision of ambulance service is an expensive undertaking, and that a select company, the one giving them the money they needed to campaign with, needed to be protected from the vicissitudes of competition, or else it would go out of business, leaving the county’s residents without ambulance service.
Last year, the 2017–2018 San Bernardino County Civil Grand Jury in its final report recommended that the county undertake to solicit bids for the provision of emergency ambulance support in a wide range of so-called “exclusive service areas” for the first time in 37 years. According to the grand jury report, “The primary ambulance service provider has continued to be a contracted provider to the county for 34 years.” Obliquely and politely, without directly referencing the degree to which hefty campaign contributions from American Medical Response have bought influence on the board of supervisors, the grand jury report raised the issue of the favoritism shown toward American Medical Response over the years and the way in which the company has been allowed to adhere to older and lower standards that were in place when it obtained the ambulance service franchise it now has while the county is insisting that the companies that would compete with American Medical Response hew to higher and more expensive standards. Moreover the report further referenced the way in which American Medical Response has been allowed to monopolize all of the high population areas of the county where a high profit in operating is guaranteed, with no requirement that the company ensure coverage in the more remote and less populated areas. The low-profit or no-profit areas are serviced by American Medical Response’s competitors. In many cases, those competing companies are sustaining losses that are in danger of putting them out of business.
This has laid bare how the members of the board of supervisors have neglected those remote areas and disregarded the safety of their constituents who live and work there.
A case in point is the county’s extreme northwest end, where Liberty Ambulance is the franchised emergency transport and advanced life support provider.
County Chief Executive Officer Gary McBride in a report dated next Tuesday, January 29, is requesting that the board of supervisors “terminate the existing financial agreement with Progressive Ambulance, doing business as Liberty Ambulance, effective January 30, 2019, and approve a new financial agreement with Progressive Ambulance, doing business as Liberty Ambulance, for the delivery of advanced life support ambulance services in San Bernardino County Non-Exclusive Operating Areas 24 and 25, including the Trona area, for the period January 30, 2019 through January 29, 2020, with two additional one-year options to extend the agreement, in the amount of $500 per call, for a total amount not to exceed $125,000 per year.”
McBride explained, “On February 13, 1996, the board of supervisors approved a non-financial contract with Progressive Ambulance, Inc., doing business as Liberty Ambulance Services, Inc. Contract No. 96-115, to provide advanced life support services in the San Bernardino County Non-Exclusive Operating Areas 24 and 25, including the Trona area. The geographical area located in Areas 24 and 25, including the Trona area, is extensive, covering the northwest corner of the county. This area is a very low population density area, with the total number of calls totaling approximately 250 in 2018. This extremely low volume can be challenging for advanced life service providers who are required to provide 24/7 coverage, as is the case for Progressive Ambulance. As a result of the Areas 24 and 25 challenges, combined with more recent changes seen in the emergency medical services reimbursement that has resulted in decreased revenues, Progressive Ambulance has communicated to the county its concerns regarding its ability to continue to provide advanced life services in Areas 24 and 25, including the Trona area, under the non-financial agreement approved by the board on February 13, 1996. If Progressive Ambulance was to terminate service, Areas 24 and 25, including the Trona area, would be left with no public or private advanced life service ambulances in close proximity to respond to emergencies.”
The current population of Trona is around 1,900.
Rather than make arrangements to have American Medical Response extend its service into the northwest corner of the county as a condition of maintaining its preeminent position as the county’s dominant ambulance service provider and risk angering his political masters on the board of supervisors by cutting into the profit margin of one of the supervisors’ major campaign donors, McBride more politicly elected to usher the board of supervisors instead toward having the county’s taxpayers underwrite the guaranteed provision of ambulance service in Trona.
McBride said he recommended terminating the existing non-financial agreement with Progressive Ambulance and entering into a $150,000 per year arrangement with the company “in order to ensure that advanced life service continues uninterrupted in Areas 24 and 25 while the county explores a permanent solution to the problem.”
“This agreement can be terminated by either party, for any reason, with a 90-day notice,” McBride stated. “The county will continue to explore all options to ensure that the long-term safety of the public is maintained.”
The newly-composed majority of the Chino Valley Unified School District Board of Trustees last week voted to forgo appealing to the U.S. Supreme Court a string of decisions at the trial court level and before the Ninth Circuit Court which directed the school board and its members to discontinue the practice of engaging in prayer and Christian advocacy during their public meetings.
Previously, the school board majority of James Na, Andrew Cruz and Sylvia Orozco had prevailed in making a decision to contest a lawsuit brought against the district by the Freedom From Religion Foundation on behalf of two named plaintiffs, Larry Maldonado and Mike Anderson, and 21 unnamed plaintiffs. When Federal Judge Jesus Bernal ruled against the district in that litigation, the same board majority sought to appeal the matter to a higher court.
The suit, filed on November 13, 2014 in Federal Court in Riverside, asserted the plaintiffs were alienated or intimidated at school board meetings because of the insistence of some district officials that they had a right to engage in so-called Christian witnessing, including “prayers, Bible readings and proselytizing” in the course of those meetings.
The plaintiffs asked for an injunction against the intrusion of religiosity into the conducting of district business.
Although all board members and the district collectively were identified as defendants, the suit cited Na and Cruz for their routine practice of quoting Biblical passages and making other religious references.
In January 2015, Orozco, Na and Cruz succeeded in having the district bypass the law firm which normally represents the district in court, which in private was recommending that the district simply settle the matter by complying with the several demands in the Freedom From Religion Foundation’s suit. Instead, the district retained, at a token cost of $1, the Sacramento-based Pacific Justice Institute to defend the district in the civil lawsuit.
The Pacific Justice Institute, founded and led by Brad Dacus, touts itself as a public interest law firm that “handles cases addressing religious freedom, including church and private school rights issues, curtailments to evangelism by the government, harassment because of religious faith, employers attacked for their religious-based policies [and] students and teachers’ rights to share their faith at public schools.”
Na and Cruz confidently predicted that the district would not sustain any costs or liability as a consequence of defending against the suit.
Na, Cruz and Orozco had reliable moral support from the congregation at Chino Hills Calvary Chapel, a church led by the Reverend Jack Hibbs, where all three worshiped. Hibbs evinces a denominationalist attitude, which holds that Christians have a duty to take over public office and promote their religious beliefs.
The case went before Federal Judge Jesus Bernal, who on February 18, 2016 issued a ruling in which he rejected the Pacific Justice Institute’s arguments that the district’s policy of celebrating the beliefs of a majority of the board did not violate the plaintiffs’ rights to attend district board meetings and participate in other district and school functions without being subjected to an intensive round of religious advocacy. Bernal ordered the Chino Unified School District Board to discontinue its overt and constant references to Christianity during its public meetings and refrain forthwith from inserting religion into official proceedings.
“The court finds… permitting religious prayer in board meetings, and the policy and custom of reciting prayers, Bible readings, and proselytizing at board meetings constitute unconstitutional government endorsements of religion in violation of plaintiffs’ First Amendment rights,” Bernal wrote. “Defendant board members are enjoined from conducting, permitting or otherwise endorsing school-sponsored prayer in board meetings.”
Bernal awarded the Freedom From Religion Foundation’s legal team $202,425.00 in attorney’s fees and $546.70 in costs to be paid by the district.
Despite that setback, Na, Cruz and Orozco, buttressed by Hibbs and the parishioners at Calvary Chapel, resolved to fight on, dispensing with the representation of the Pacific Justice Institute, and voting on March 7, 2016 to retain, with board members Irene Hernandez-Blair and Pamela Feix dissenting, to retain another Christian advocacy attorney, Robert Tyler of the Murrieta-based law firm Tyler & Bursch, to handle the appeal of Bernal’s ruling.
Tyler pursued the appeal by reasserting the school board’s right to proselytize during public forums, hinging his argument on the basis of the 2014 5-4 U.S. Supreme Court decision in the case of Town of Greece v. Galloway, which held that public officials can open public meetings with prayers — even explicitly Christian ones — if the government agency does not discriminate against minority faiths when choosing who may offer a prayer and the prayer does not coerce participation from nonbelievers. Tyler contended that the district and its school board were merely seeking to preserve its invocation policy at board meetings. However, the three-judge panel of the U.S. 9th Circuit Court of Appeals considering the appeal – consisting of Judges M. Margaret McKeown and Kim McLane Wardlaw and Colorado District Judge Wiley Y. Daniel – looked at the actuality of what had been occurring at Chino Valley Unified School District Board meetings. The Freedom From Religion Foundation demonstrated that what Na and Cruz, and to a lesser extent Orozco, were engaged in was not simply offering up a homily at the opening of the meeting but rather subjecting those in attendance with recurrent diatribes to adopt a Christian belief system. Moreover, it was demonstrated that the invocations in virtually every case, with only the rarest of exceptions, were Christian in character. The panel accordingly found unpersuasive Tyler’s characterization of Na and Cruz’s action as simply offering a non-denominational dedication at the opening of the meetings. Rather, the panel concluded, Tyler was seeking to minimize the extent to which Na and Cruz subjugated those present at the board meetings to what was tantamount to Christian indoctrination. On July 25, 2018, the 9th Circuit panel upheld in its entirety Bernal’s 2016 ruling. The 9th Circuit panel said the Chino Valley School Board must desist in incorporating prayers, proselytizing and the citation of Christian Scripture as elements of its meetings.
Undeterred by both resounding defeats in Riverside Federal Court in 2016 and before the Ninth Circuit panel in San Francisco, the devoutly religious faction of the Chino Valley school board last summer resolved to petition the he United States Supreme Court to reconsider the case for allowing celebrations of Christian belief to remain as an intrinsic element of school district functions. Before proceeding with the petition to the Supreme Court, it was decided, again in a 3-to-2 vote, to ask the full Ninth Circuit Court for a rehearing of the case, on the outside chance that the entirely of the circuit court’s 25 currently-active judges might reverse the panel. There are a total of 29 positions on the 9th U.S. Circuit Court of Appeals, though there are four seats currently vacant.
While the full 9th Circuit was mulling that request, the 2018 election cycle was ongoing. Incumbent board members Orozco and Pamela Feix had opted not to seek reelection, with Orozco vying instead for a position on the Chino City Council, ultimately unsuccessfully. On November 6, Christina Gagnier and Joe Schaffer were elected to the board, and in December supplanted Orozco and Feix.
Ultimately, the full 9th U.S. Circuit determined not to take up the matter and second guess Judges McKeown, Wardlaw and Daniel. The district has accrued a further liability of roughly $147,000 in legal fees that it must pay the Freedom From Religion Foundation on top of the almost $203,000 that Bernal awarded in 2016, bringing the district’s costs in the Quixotic effort to $350,000.
Last week at its January 17 meeting, the board came out of a closed executive session before the 7 p.m. start of the public portion of the meeting. Patricia Kaylor, the administrative secretary to the board of education announced, “The board took action to rescind the direction given to legal counsel on August 1, 2018, to file a writ petition to the United States Supreme Court for a review of the Ninth Circuit Court ruling and cease any further litigation in the matter involving the Freedom From Religion lawsuit. This includes any filing of or petitioning for cert with the U.S. Supreme Court on a motion by Irene Hernandez Blair seconded by Christina Gagnier, with a vote of Blair, Shaffer, Gagnier voting yes and Cruz and Na voting no.”
The San Bernardino City Council this month sold its 13.48 percent interest in the historic Del Rosa Mutual Water Company to the San Manuel Band of Mission Indians.
The city’s interest in the water district provided it with an entitlement to a percentage of the water access that existed as a consequence of the company’s long-established pumping of water from the local water table, thereby redundifying its claim to water usage under a 1969 decision that permits local water purveyors to draft from the local aquifer in a manner that is deemed to be a responsible utilization of the regional water source, subject to restrictions in the event the water table is subject to overdrafting.
City officials did not address the advisability or lack thereof of retaining a minority interest in the water resource the Del Rosa Mutual Water Company represents. Nor did the city seek competing offers for shares it held in the company. Rather, it relied on a confidential valuation of the water shares made by the purchaser. That valuation made no allowance for the extension of the city’s existing water pumping allowance under the 1969 decision, nor did it preview the future value possession of the shares would represent under any of a variety of water use restriction scenarios that might result as a consequence of the overdrafting of the regional water table. Moreover, in making the sale, the city ignored a standing offer for the purchase of the shares at twice what San Manuel offered for them and ultimately paid.
Slightly more than 117 years ago, in December 1901, The Del Rosa Water Company was formed by the individual owners of East Twin Creek water rights, which extended back into the 19th Century. Upon the company’s formation, the individual owners of water rights of East Twin Creek conveyed all of their rights in water, water distribution, and easements to the new water company.
Because the Del Rosa Water Company began diverting water from East Twin Creek before 1914, it established a pre-1914 appropriative water right, a benchmark in the entitlement to water use in California based upon an historical usage pattern. Once established, appropriative water rights cannot be lost and a protocol in state law exists to restore appropriative water rights in the face of efforts to render them inapplicable.
In January 1922, the Del Rosa Water Company reincorporated under the name of the Del Rosa Mutual Water Company with a capital stock of $58,500 divided into 5,850 shares.
Initially the Del Rosa Water Company diverted water from the East Twin and Waterman Canyon creeks. In 1929 the flow from East Twin Creek was supplemented by water pumped from two wells.
In the early 1930s, the Del Rosa Mutual Water Company, represented by attorney Ralph Swing, was the plaintiff in a major water rights lawsuit that was brought against D.J. Carpenter, Isabel Turner, George Mason, J.B. Jeffers, L.R. McKesson, the National Thrift Corporation of America, the National Thrift Corporation, California Consolidated Water Company and California Consumers Company, the Arrowhead Springs Company and Arrowhead Springs Corporation that was settled by a stipulation of those rights on October 19, 1931.
Throughout the first six decades of its existence, the Del Rosa Water Company/Del Rosa Mutual Water Company was primarily engaged in the provision of irrigation water, with only a small fraction of its diversion being utilized for domestic use.
In 1943 the company was providing water to irrigate over 1,400 acres of citrus groves, at which time it was diverting 1,154 acre-feet of water annually.
In 1950, the Del Rosa Mutual Water Company was irrigating 800 acres acres of citrus groves as more of the water was being utilized for domestic purposes.
In 1965 a valve was installed in the line east of Mountain Avenue. Subsequently, the San Bernardino County Water District supplied the area east of the valve from its domestic and agricultural water-supply system. The Del Rosa Mutual Water Company yet maintained connections into that area that could be actuated through a series of valves. The company added a third well in 1967, at which point only about 100 acres were irrigated by Del Rosa Mutual Water Company water. On those 100 acres were olive groves, Christmas tree groves, deciduous fruit orchards, and pasture, according to oral communication involving the East San Bernardino County Water District at that time. Beginning in that timeframe or shortly thereafter, East Twin Creek water not used for irrigation was applied into the
East Twin Creek spreading grounds below 40th Street to recharge the groundwater basin, with the water-spreading activity being carried out under the supervision of the Del Rosa Mutual Water Company.
In 1967, 4,423 shares of the original 5,850 shares were outstanding, with the East San Bernardino County Water District, City of San Bernardino, and 15 individual owners holding 3,403, 500, and 520 shares, respectively. The City of San Bernardino acquired the shares it held between 1960 and 1966.
In the 1960s, the company was named in a general water rights adjudication lawsuit. Although it was later dismissed from that litigation, the Del Rosa Mutual Water Company was determined to have, based upon a five-year survey of its water use, an annual minimal pumping allocation of 845 acre-feet per year at that time. Ultimately, that water rights litigation was terminated with what is termed the 1969 Western Judgment. Prior to the judgment, the City of San Bernardino’s prescriptive rights were limited to less than 15,000 acre-feet per year. However, any stake the city had in a mutual water company such as Del Rosa supplemented those rights. The Western Judgment in essence removed the 15,000 acre-feet per year annual pumping limitation on the city, clearing it to draw as much water from the underlying groundwater basin as it required to meet demands in its service area, subject to reductions in the event that the water table became subject to an overdraft or drawdown. The Del Rosa Mutual Water Company was subject to a similar regime, as were other parties and local water purveyors in keeping with the basin’s safe-yield standards and obligations established in the judgment.
The Del Rosa Mutual Water Company’s well[s] remained active in the years after the Western Judgment. In 1999, the company drafted 1,961 acre feet; in 2000, 1,950 acre-feet; in 2001, 1,935 acre-feet; in 2002, 1,985 acre-feet; in 2003, 1,985 acre-feet; in 2004, 2,700 acre-feet; in 2005, 1,950 acre-feet; and in 2006, 1,900 acre-feet.
The Del Rosa Mutual Water Company’s single highest annual water diversion total historically was a combined 2,718 acre feet in 1969.
Currently throughout California, the cost of water runs at anywhere from $970 per acre-foot to $4,300 per acre-foot, depending on location, means of production or derivation and delivery costs.
Assuming a $1,000 per acre foot cost on water locally, the Del Rosa Mutual Water Company, operating at its full historic capacity, appears to have the potential to generate roughly $2.7 million in water sales annually.
By earlier this decade Campus Crusade for Christ had come into possession of 3,729 shares of the 4,310 total shares of the Del Rosa Mutual Water Company that were outstanding. In April 2016, Campus Crusade for Christ sold those shares to the San Manuel Band of Mission Indians, making the tribe the majority shareholder in the company. The City of San Bernardino held the remaining 581 shares.
In May 2016, the San Manuel Tribe requested a meeting with the San Bernardino City Water Department to discuss the Del Rosa Mutual Water Company, specifically the potential purchase of the city’s shares. San Manuel expressed interest in acquiring the city’s shares to become the sole owner of the Del Rosa Mutual Water Company. It was agreed that San Manuel would commission a valuation of the Del Rosa Mutual Water Company to determine the company’s value.
Robert Krieger of Krieger & Stewart Engineering Consultants carried out a confidential valuation of the Del Rosa Mutual Water Company Water Shares done at the behest of Rodney Garton, the operations and development manager for Arrowhead Springs, an entity wholly owned by the San Manuel Band of Mission Indians.
According to Krieger, one of the company’s original four foot-by-five foot dimension wells, located in East Twin Creek which was dug in two phases of 42 feet in 1912 and 18 feet in 1919 to a depth of 60 feet, was operated until 2007 when it was destroyed by the Metropolitan Water District during construction of the pipeline portion of the Inland Feeder, following condemnation of and securing the permanent easement for the Inland Feeder Project. The dug well is no longer visible, according to Krieger. The company is still in possession of two groundwater extraction wells, known by the nomenclature of #3601809 and #3601810, which are separate steel-cased wells with vertical pumps. The wells were constructed in the groundwater basin downstream of the original diversion. Both wells stopped pumping in the 1960s, according to Krieger, with records terminated in 1966 for #3601809 and terminated in 1981 for #3601810. “For all practical purposes, these wells stopped producing groundwater in the mid-1960s, years before the diversion ceased,” Krieger stated in the valuation document. “The water company’s physical plant, except for a few unusable remnants, has been damaged or destroyed and serves no useful purpose. None of the plant components are salvageable or worth salvaging.”
According to Krieger, “The assets of the water company are the organization itself, a single parcel of land, and appropriative water rights, both surface water and groundwater. The surface water rights derive from historic pre-1914 riparian water right diversions, and the groundwater rights derive from historic groundwater extractions.”
According to Krieger, “Organization value herein is considered the cost of organizing the water company in accordance with California Corporation Code 14300 et sequentes, and the preparation of articles of incorporation, corporation bylaws, and rules and regulations. I opine the organization value to be $4,000. I have conferred and confirmed with two separate water attorneys about formation requirements and preparation of the related documents. The estimated organization value is current to reflect current market value, even though the water company was organized in 1901 and reorganized in 1922.”
With regard to land value, Krieger said, “James Smothers inspected and valued the water company’s single land parcel, 2.0 acres identified as Assessor’s Parcel Number 0270-111-02, on October 12, 2017 at $13,000, as reported in his appraisal report dated October 25, 2017. He classified the site as vacant land (open space and watershed) with improvements consisting of a concrete pad, perimeter fencing, and asphalt paving being in average condition.”
According to Krieger, “The water company can produce and put to beneficial use whatever quantity of water it needs; therefore, the water company has the right to divert or extract from the Bunker Hill Basin its theoretical base period allocation or more if need be. Regardless of whether the water company has a pre-1914 water right within the Bunker Hill Basin, it can divert or extract whatever quantity of water it can put to reasonable and beneficial use without limit or restriction. As a consequence, its appropriative right has no value since it is unnecessary for the water company to exercise its appropriative water right in order to divert or extract water from the groundwater basin. I hereby opine that the pre-1914 appropriative water right, although it may exist, has no value.”
Saying he was defining “market value in the present context [as] what a willing and informed buyer under no obligation to buy will pay, and what a willing and informed seller under no compulsion to sell will accept after fair and voluntary dealing, taking into account all of those factors which such willing and informed persons would consider in light of industry customs, Krieger concluded, “In my opinion, the value of outstanding shares of common stock is $3.94 per share and, based on common stock ownership, the San Manuel Band of Mission Indians’ 3,729 shares of common stock has a value of $14,692.26 and the City of San Bernardino Municipal Water Department’s 581 shares of common stock has a value of $2,289.14.”
That valuation, dated August 23, 2018, made no allowance for the Del Rosa Municipal Water Company’s status as an historical entity engaged in the drafting of water from the Bunker Hill Basin which provides it with an entitlement and licensing to operate at its three existing well sites and the privilege to sink further wells within the confines of its traditional geographical overlay, wherein rich water resources are available.
Though the water department gave indication it would conduct due diligence in order to provide the complete scope of its position, no independent appraisal of the water company or its assets was carried out on behalf of the department or the city. No opinion independent of that provided by Krieger, whose consulting company was reportedly paid more for the valuation than the $2,289.14 he deemed the city’s 581 shares of Del Rosa Mutual Water Company common stock to be worth.
In the staff report/request for council action that accompanied the placement of the action item on the consent calendar of the mayor and council’s January 2 meeting which called for “approving the sale of the city’s Del Rosa Mutual Water Company shares to the San Manuel Band of Mission Indians” both City Manager Andrea Travis-Miller and San Bernardino Municipal Water Department General Manager Miguel Guerrero parroted verbatim in large measure Krieger’s valuation in recommending that the city council go along with making the sale.
Travis-Miller and Guerrero included Krieger’s valuation as an attachment to the report.
“Krieger & Stewart Engineering Consultants (K&S) completed the attached valuation this past August,” Travis-Miller and Guerrero stated in the report/request for council action. “The Del Rosa Water assets are the organization itself, a single parcel of land, and appropriative water rights, both surface water and groundwater. K&S valued the organization at $4,000 and the land at $13,000. K&S determined that the company has no water rights value because of the Western Judgment.”
Travis-Miller and Guerrero then adopted Krieger’s conclusion as their own. “The total value of Del Rosa Water is $17,000 or $3.94/share,” the report/request for council action states. “The value of the city’s shares is $2,289.14.”
Neither the city nor the municipal water department sought offers for the shares, merely accepting the San Manuel tribe’s offer of $2,289.14. In their the report/request for council action, Travis-Miller and Guerrero stated, “In consultation with outside counsel, water department staff has done its due diligence and has determined that the K&S valuation of Del Rosa Water is fair and accurate.”
Travis-Miller placed the sale of the shares on the consent calendar for the mayor and council at its January 2 meeting. The consent calendar is reserved for issues deemed non-controversial and unworthy of public discussion, all of which are grouped together for collective routine approval with one vote.
Prior to the vote San Bernardino County Sentinel Publisher Mark Gutglueck made a public offer to purchase the city’s 581 Del Rosa Mutual Water Company shares at twice what the San Manuel Tribe had offered, $4,578.28. Neither the city nor the council responded to Gutglueck’s offer, and instead the council voted to make the sale to the San Manuel Tribe for $2,289.14.
By Flannery O’Connor
THE GRANDMOTHER didn’t want to go to Florida. She wanted to visit some of her connections in east Tennessee and she was seizing at every chance to change Bailey’s mind. Bailey was the son she lived with, her only boy. He was sitting on the edge of his chair at the table, bent over the orange sports section of the Journal. “Now look here, Bailey,” she said, “see here, read this,” and she stood with one hand on her thin hip and the other rattling the newspaper at his bald head. “Here this fellow that calls himself The Misfit is aloose from the Federal Pen and headed toward Florida and you read here what it says he did to these people. Just you read it. I wouldn’t take my children in any direction with a criminal like that aloose in it. I couldn’t answer to my conscience if I did.”
Bailey didn’t look up from his reading so she wheeled around then and faced the children’s mother, a young woman in slacks, whose face was as broad and innocent as a cabbage and was tied around with a green head-kerchief that had two points on the top like rabbit’s ears. She was sitting on the sofa, feeding the baby his apricots out of a jar. “The children have been to Florida before,” the old lady said. “You all ought to take them somewhere else for a change so they would see different parts of the world and be broad. They never have been to east Tennessee.”
The children’s mother didn’t seem to hear her but the eight-year-old boy, John Wesley, a stocky child with glasses, said, “If you don’t want to go to Florida, why dontcha stay at home?” He and the little girl, June Star, were reading the funny papers on the floor.
“She wouldn’t stay at home to be queen for a day,” June Star said without raising her yellow head.
“Yes and what would you do if this fellow, The Misfit, caught you?” the grandmother asked.
“I’d smack his face,” John Wesley said.
“She wouldn’t stay at home for a million bucks,” June Star said. “Afraid she’d miss something. She has to go everywhere we go.”
“All right, Miss,” the grandmother said. “Just remember that the next time you want me to curl your hair.”
June Star said her hair was naturally curly.
The next morning the grandmother was the first one in the car, ready to go. She had her big black valise that looked like the head of a hippopotamus in one corner, and underneath it she was hiding a basket with Pitty Sing, the cat, in it. She didn’t intend for the cat to be left alone in the house for three days because he would miss her too much and she was afraid he might brush against one of the gas burners and accidentally asphyxiate himself. Her son, Bailey, didn’t like to arrive at a motel with a cat.
She sat in the middle of the back seat with John Wesley and June Star on either side of her. Bailey and the children’s mother and the baby sat in front and they left Atlanta at eight forty-five with the mileage on the car at 55890. The grandmother wrote this down because she thought it would be interesting to say how many miles they had been when they got back. It took them twenty minutes to reach the outskirts of the city.
The old lady settled herself comfortably, removing her white cotton gloves and putting them up with her purse on the shelf in front of the back window. The children’s mother still had on slacks and still had her head tied up in a green kerchief, but the grandmother had on a navy blue straw sailor hat with a bunch of white violets on the brim and a navy blue dress with a small white dot in the print. Her collars and cuffs were white organdy trimmed with lace and at her neckline she had pinned a purple spray of cloth violets containing a sachet. In case of an accident, anyone seeing her dead on the highway would know at once that she was a lady.
She said she thought it was going to be a good day for driving, neither too hot nor too cold, and she cautioned Bailey that the speed limit was fifty-five miles an hour and that the patrolmen hid themselves behind billboards and small clumps of trees and sped out after you before you had a chance to slow down. She pointed out interesting details of the scenery: Stone Mountain; the blue granite that in some places came up to both sides of the highway; the brilliant red clay banks slightly streaked with purple; and the various crops that made rows of green lace-work on the ground. The trees were full of silver-white sunlight and the meanest of them sparkled. The children were reading comic magazines and their mother had gone back to sleep.
“Let’s go through Georgia fast so we won’t have to look at it much,” John Wesley said.
“If I were a little boy,” said the grandmother, “I wouldn’t talk about my native state that way. Tennessee has the mountains and Georgia has the hills.”
“Tennessee is just a hillbilly dumping ground,” John Wesley said, “and Georgia is a lousy state too.”
“You said it,” June Star said.
“In my time,” said the grandmother, folding her thin veined fingers, “children were more respectful of their native states and their parents and everything else. People did right then. Oh look at the cute little pickaninny!” she said and pointed to a Negro child standing in the door of a shack. “Wouldn’t that make a picture, now?” she asked and they all turned and looked at the little Negro out of the back window. He waved.
“He didn’t have any britches on,” June Star said.
“He probably didn’t have any,” the grandmother explained. “Little niggers in the country don’t have things like we do. If I could paint, I’d paint that picture,” she said.
The children exchanged comic books.
The grandmother offered to hold the baby and the children’s mother passed him over the front seat to her. She set him on her knee and bounced him and told him about the things they were passing. She rolled her eyes and screwed up her mouth and stuck her leathery thin face into his smooth bland one. Occasionally he gave her a faraway smile. They passed a large cotton field with five or six graves fenced in the middle of it, like a small island. “Look at the graveyard!” the grandmother said, pointing it out. “That was the old family burying ground. That belonged to the plantation.”
“Where’s the plantation?” John Wesley asked.
“Gone With the Wind,” said the grandmother. “Ha. Ha.”
When the children finished all the comic books they had brought, they opened the lunch and ate it. The grandmother ate a peanut butter sandwich and an olive and would not let
the children throw the box and the paper napkins out the window. When there was nothing else to do they played a game by choosing a cloud and making the other two guess what shape it suggested. John Wesley took one the shape of a cow and June Star guessed a cow and John Wesley said, no, an automobile, and June Star said he didn’t play fair, and they began to slap each other over the grandmother.
The grandmother said she would tell them a story if they would keep quiet. When she told a story, she rolled her eyes and waved her head and was very dramatic. She said once when she was a maiden lady she had been courted by a Mr. Edgar Atkins Teagarden from Jasper, Georgia. She said he was a very good-looking man and a gentleman and that he brought her a watermelon every Saturday afternoon with his initials cut in it, E. A. T. Well, one Saturday, she said, Mr. Teagarden brought the watermelon and there was nobody at home and he left it on the front porch and returned in his buggy to Jasper, but she never got the watermelon, she said, because a nigger boy ate it when he saw the initials, E. A. T.! This story tickled John Wesley’s funny bone and he giggled and giggled but June Star didn’t think it was any good. She said she wouldn’t marry a man that just brought her a watermelon on Saturday. The grandmother said she would have done well to marry Mr. Teagarden because he was a gentleman and had bought Coca-Cola stock when it first came out and that he had died only a few years ago, a very wealthy man.
They stopped at The Tower for barbecued sandwiches. The Tower was a part stucco and part wood filling station and dance hall set in a clearing outside of Timothy. A fat man named Red Sammy Butts ran it and there were signs stuck here and there on the building and for miles up and down the highway saying, TRY RED SAMMY’S FAMOUS BARBECUE. NONE LIKE FAMOUS RED SAMMY’S! RED SAM! THE FAT BOY WITH THE HAPPY LAUGH. A VETERAN! RED SAMMY’S YOUR MAN!
Red Sammy was lying on the bare ground outside The Tower with his head under a truck while a gray monkey about a foot high, chained to a small chinaberry tree, chattered nearby. The monkey sprang back into the tree and got on the
A GOOD MAN IS HARD TO FIND 141 highest limb as soon as he saw the children jump out of the car and run toward him.
Inside, The Tower was a long dark room with a counter at one end and tables at the other and dancing space in the middle. They all sat down at a board table next to the nickelodeon and Red Sam’s wife, a tall burnt-brown woman with hair and eyes lighter than her skin, came and took their order. The children’s mother put a dime in the machine and played “The Tennessee Waltz,” and the grandmother said that tune always made her want to dance. She asked Bailey if he would like to dance but he only glared at her. He didn’t have a naturally sunny disposition like she did and trips made him nervous. The grandmother’s brown eyes were very bright. She swayed her head from side to side and pretended she was dancing in her chair. June Star said play something she could tap to so the children’s mother put in another dime and played a fast number and June Star stepped out onto the dance floor and did her tap routine.
“Ain’t she cute?” Red Sam’s wife said, leaning over the counter. “Would you like to come be my little girl?”
“No I certainly wouldn’t,” June Star said. “I wouldn’t live in a broken-down place like this for a minion bucks!” and she ran back to the table.
“Ain’t she cute?” the woman repeated, stretching her mouth politely.
“Arn’t you ashamed?” hissed the grandmother.
Red Sam came in and told his wife to quit lounging on the counter and hurry up with these people’s order. His khaki trousers reached just to his hip bones and his stomach hung over them like a sack of meal swaying under his shirt. He came over and sat down at a table nearby and let out a combination sigh and yodel. “You can’t win,” he said. “You can’t win,” and he wiped his sweating red face off with a gray handkerchief. “These days you don’t know who to trust,” he said. “Ain’t that the truth?”
“People are certainly not nice like they used to be,” said the grandmother.
“Two fellers come in here last week,” Red Sammy said, “driving a Chrysler. It was a old beat-up car but it was a good one and these boys looked all right to me. Said they worked at the mill and you know I let them fellers charge the gas they bought? Now why did I do that?”
“Because you’re a good man!” the grandmother said at once.
“Yes’m, I suppose so,” Red Sam said as if he were struck with this answer.
His wife brought the orders, carrying the five plates all at once without a tray, two in each hand and one balanced on her arm. “It isn’t a soul in this green world of God’s that you can trust,” she said. “And I don’t count nobody out of that, not nobody,” she repeated, looking at Red Sammy.
“Did you read about that criminal, The Misfit, that’s escaped?” asked the grandmother.
“I wouldn’t be a bit surprised if he didn’t attact this place right here,” said the woman. “If he hears about it being here,I wouldn’t be none surprised to see him. If he hears it’s two cent in the cash register, I wouldn’t be a tall surprised if he . . .”
“That’ll do,” Red Sam said. “Go bring these people their Co’-Colas,” and the woman went off to get the rest of the order.
“A good man is hard to find,” Red Sammy said. “Every- thing is getting terrible. I remember the day you could go off and leave your screen door unlatched. Not no more.”
He and the grandmother discussed better times. The old lady said that in her opinion Europe was entirely to blame for the way things were now. She said the way Europe acted you would think we were made of money and Red Sam said it was no use talking about it, she was exactly right. The children ran outside into the white sunlight and looked at the monkey in the lacy chinaberry tree. He was busy catching fleas on himself and biting each one carefully between his teeth as if it were a delicacy.
They drove off again into the hot afternoon. The grand- mother took cat naps and woke up every few minutes with her own snoring. Outside of Toombsboro she woke up and recalled an old plantation that she had visited in this neighborhood once when she was a young lady. She said the house had six white columns across the front and that there was an avenue of oaks leading up to it and two little wooden trellis arbors on either side in front where you sat down with your suitor after a stroll in the garden. She recalled exactly which road to turn off to get to it. She knew that Bailey would not be willing to lose any time looking at an old house, but the more she talked about it, the more she wanted to see it once again and find out if the little twin arbors were still standing. “There was a secret panel in this house,” she said craftily, not telling the truth but wishing that she were, “and the story went that all the family silver was hidden in it when Sherman came through but it was never found . . .”
“Hey!” John Wesley said. “Let’s go see it! We’ll find it! We’ll poke all the woodwork and find it! Who lives there? Where do you turn off at? Hey Pop, can’t we turn off there?”
“We never have seen a house with a secret panel!” June Star shrieked. “Let’s go to the house with the secret panel! Hey Pop, can’t we go see the house with the secret panel!”
“It’s not far from here, I know,” the grandmother said. “It wouldn’t take over twenty minutes.”
Bailey was looking straight ahead. His jaw was as rigid as a horseshoe. “No,” he said.
The children began to yell and scream that they wanted to see the house with the secret panel. John Wesley kicked the back of the front seat and June Star hung over her mother’s shoulder and whined desperately into her ear that they never had any fun even on their vacation, that they could never do what THEY wanted to do. The baby began to scream and John Wesley kicked the back of the seat so hard that his father could feel the blows in his kidney.
“All right!” he shouted and drew the car to a stop at the side of the road. “Will you all shut up? Will you all just shut up for one second? If you don’t shut up, we won’t go anywhere.
“It would be very educational for them,” the grandmother murmured.
“All right,” Bailey said, “but get this: this is the only time we’re going to stop for anything like this. This is the one and only time.”
“The dirt road that you have to turn down is about a mile back,” the grandmother directed. “I marked it when we passed.”
“A dirt road,” Bailey groaned.
After they had turned around and were headed toward the dirt road, the grandmother recalled other points about the house, the beautiful glass over the front doorway and the candle-lamp in the hall. John Wesley said that the secret panel was probably in the fireplace.
“You can’t go inside this house,” Bailey said. “You don’t know who lives there.”
“While you all talk to the people in front, I’ll run around behind and get in a window,” John Wesley suggested.
“We’ll all stay in the car,” his mother said. They turned onto the dirt road and the car raced roughly along in a swirl of pink dust. The grandmother recalled the times when there were no paved roads and thirty miles was a day’s journey. The dirt road was hilly and there were sudden washes in it and sharp curves on dangerous embankments. All at once they would be on a hill, looking down over the blue tops of trees for miles around, then the next minute, they would be in a red depression with the dust-coated trees looking down on them.
“This place had better turn up in a minute,” Bailey said, “or I’m going to turn around.”
The road looked as if no one had traveled on it in months.
“It’s not much farther,” the grandmother said and just as she said it, a horrible thought came to her. The thought was so embarrassing that she turned red in the face and her eyes dilated and her feet jumped up, upsetting her valise in the corner. The instant the valise moved, the newspaper top she had over the basket under it rose with a snarl and Pitty Sing,the cat, sprang onto Bailey’s shoulder.
The children were thrown to the floor and their mother, clutching the baby, was thrown out the door onto the ground; the old lady was thrown into the front seat. The car turned over once and landed right-side-up in a gulch off the side of the road. Bailey remained in the driver’s seat with the cat-gray-striped with a broad white face and an orange nose-clinging to his neck like a caterpillar.
As soon as the children saw they could move their arms and legs, they scrambled out of the car, shouting, “We’ve had an ACCIDENT!” The grandmother was curled up under the
dashboard, hoping she was injured so that Bailey’s wrath would not come down on her all at once. The horrible thought she had had before the accident was that the house she had remembered so vividly was not in Georgia but in Tennessee.
Bailey removed the cat from his neck with both hands and flung it out the window against the side of a pine tree. Then he got out of the car and started looking for the children’s mother. She was sitting against the side of the red gutted ditch, holding the screaming baby, but she only had a cut down her face and a broken shoulder. “We’ve had an ACCIDENT!” the children screamed in a frenzy of delight.
“But nobody’s killed,” June Star said with disappointment as the grandmother limped out of the car, her hat still pinned to her head but the broken front brim standing up at a jaunty angle and the violet spray hanging off the side. They all sat down in the ditch, except the children, to recover from the shock. They were all shaking.
“Maybe a car will come along,” said the children’s mother hoarsely.
“I believe I have injured an organ,” said the grandmother, pressing her side, but no one answered her. Bailey’s teeth were clattering. He had on a yellow sport shirt with bright blue parrots designed in it and his face was as yellow as the l shirt. The grandmother decided that she would not mention that the house was in Tennessee.
The road was about ten feet above and they could see only the tops of the trees on the other side of it. Behind the ditch they were sitting in there were more woods, tall and dark and deep. In a few minutes they saw a car some distance away on top of a hill, coming slowly as if the occupants were watching them. The grandmother stood up and waved both arms dramatically to attract their attention. The car continued to come on slowly, disappeared around a bend and appeared again, moving even slower, on top of the hill they had gone over. It was a big black battered hearse-like automobile. There were three men in it.
It came to a stop just over them and for some minutes, the driver looked down with a steady expressionless gaze to where they were sitting, and didn’t speak. Then he turned his head and muttered something to the other two and they got out. One was a fat boy in black trousers and a red sweat shirt with a silver stallion embossed on the front of it. He moved around on the right side of them and stood staring, his mouth partly open in a kind of loose grin. The other had on khaki pants and a blue striped coat and a gray hat pulled down very low, hiding most of his face. He came around slowly on the left side. Neither spoke.
The driver got out of the car and stood by the side of it, looking down at them. He was an older man than the other two. His hair was just beginning to gray and he wore silver- rimmed spectacles that gave him a scholarly look. He had a long creased face and didn’t have on any shirt or undershirt. He had on blue jeans that were too tight for him and was holding a black hat and a gun. The two boys also had guns.
“We’ve had an ACCIDENT!” the children screamed.
The grandmother had the peculiar feeling that the bespectacled man was someone she knew. His face was as familiar to her as if she had known him au her life but she could not recall who he was. He moved away from the car and began to come down the embankment, placing his feet carefully so that he wouldn’t slip. He had on tan and white shoes and no socks, and his ankles were red and thin. “Good afternoon,” he said. “I see you all had you a little spill.”
“We turned over twice!” said the grandmother.
“Once”,” he corrected. “We seen it happen. Try their car and see will it run, Hiram,” he said quietly to the boy with the gray hat.
“What you got that gun for?” John Wesley asked. “Whatcha gonna do with that gun?”
“Lady,” the man said to the children’s mother, “would you mind calling them children to sit down by you? Children make me nervous. I want all you all to sit down right together there where you’re at.”
“What are you telling US what to do for?” June Star asked.
Behind them the line of woods gaped like a dark open mouth. “Come here,” said their mother.
“Look here now,” Bailey began suddenly, “we’re in a predicament! We’re in . . .”
The grandmother shrieked. She scrambled to her feet and stood staring. “You’re The Misfit!” she said. “I recognized you at once!”
“Yes’m,” the man said, smiling slightly as if he were pleased in spite of himself to be known, “but it would have been better for all of you, lady, if you hadn’t of reckernized me.”
Bailey turned his head sharply and said something to his mother that shocked even the children. The old lady began to cry and The Misfit reddened.
“Lady,” he said, “don’t you get upset. Sometimes a man says things he don’t mean. I don’t reckon he meant to talk to you thataway.”
“You wouldn’t shoot a lady, would you?” the grandmother said and removed a clean handkerchief from her cuff and began to slap at her eyes with it.
The Misfit pointed the toe of his shoe into the ground and made a little hole and then covered it up again. “I would hate to have to,” he said.
“Listen,” the grandmother almost screamed, “I know you’re a good man. You don’t look a bit like you have com- mon blood. I know you must come from nice people!”
“Yes mam,” he said, “finest people in the world.” When he smiled he showed a row of strong white teeth. “God never made a finer woman than my mother and my daddy’s heart was pure gold,” he said. The boy with the red sweat shirt had come around behind them and was standing with his gun at his hip. The Misfit squatted down on the ground. “Watch them children, Bobby Lee,” he said. “You know they make me nervous.” He looked at the six of them huddled together in front of him and he seemed to be embarrassed as if he couldn’t think of anything to say. “Ain’t a cloud in the sky,” he remarked, looking up at it. “Don’t see no sun but don’t see no cloud neither.”
“Yes, it’s a beautiful day,” said the grandmother. “Listen,” she said, “you shouldn’t call yourself The Misfit because I know you’re a good man at heart. I can just look at you and tell ”
“Hush!” Bailey yelled. “Hush! Everybody shut up and let me handle this!” He was squatting in the position of a runner about to sprint forward but he didn’t move.
“I prechate that, lady,” The Misfit said and drew a little circle in the ground with the butt of his gun.
“It’ll take a half a hour to fix this here car,” Hiram called, looking over the raised hood of it.
“Well, first you and Bobby Lee get him and that little boy to step over yonder with you,” The Misfit said, pointing to Bailey and John Wesley. “The boys want to ast you some- thing,” he said to Bailey. “Would you mind stepping back in them woods there with them?”
“Listen,” Bailey began, “we’re in a terrible predicament! Nobody realizes what this is,” and his voice cracked. His eyes were as blue and intense as the parrots in his shirt and he remained perfectly still.
The grandmother reached up to adjust her hat brim as if she were going to the woods with him but it came off in her hand. She stood staring at it and after a second she let it fall on the ground. Hiram pulled Bailey up by the arm as if he were assisting an old man. John Wesley caught hold of his father’s hand and Bobby Lee followed. They went off toward the woods and just as they reached the dark edge, Bailey turned and supporting himself against a gray naked pine trunk, he shouted, “I’ll be back in a minute, Mamma, wait on me!”
“Come back this instant!” his mother shrilled but they all disappeared into the woods.
“Bailey Boy!” the grandmother called in a tragic voice but she found she was looking at The Misfit squatting on the ground in front of her. “I just know you’re a good man,” she said desperately. “You’re not a bit common!”
“Nome, I ain’t a good man,” The Misfit said after a second as if he had considered her statement carefully, “but I ain’t the worst in the world neither. My daddy said I was a different breed of dog from my brothers and sisters. ‘You know,’ Daddy said, ‘it’s some that can live their whole life out without asking about it and it’s others has to know why it is, and this boy is one of the latters. He’s going to be into every- thing!'” He put on his black hat and looked up suddenly and then away deep into the woods as if he were embarrassed again. “I’m sorry I don’t have on a shirt before you ladies,” he said, hunching his shoulders slightly. “We buried our clothes that we had on when we escaped and we’re just making do until we can get better. We borrowed these from some folks we met,” he explained.
“That’s perfectly all right,” the grandmother said. “Maybe Bailey has an extra shirt in his suitcase.”
“I’ll look and see terrectly,” The Misfit said.
“Where are they taking him?” the children’s mother screamed.
“Daddy was a card himself,” The Misfit said. “You couldn’t put anything over on him. He never got in trouble with the Authorities though. Just had the knack of handling them.”
“You could be honest too if you’d only try,” said the grandmother. “Think how wonderful it would be to settle down and live a comfortable life and not have to think about some- body chasing you all the time.”
The Misfit kept scratching in the ground with the butt of his gun as if he were thinking about it. “Yes’m, somebody is always after you,” he murmured.
The grandmother noticed how thin his shoulder blades were just behind-his hat because she was standing up looking down on him. “Do you ever pray?” she asked.
He shook his head. All she saw was the black hat wiggle between his shoulder blades. “Nome,” he said.
There was a pistol shot from the woods, followed closely by another. Then silence. The old lady’s head jerked around. She could hear the wind move through the tree tops like a long satisfied insuck of breath. “Bailey Boy!” she called.
“I was a gospel singer for a while,” The Misfit said. “I been most everything. Been in the arm service, both land and sea, at home and abroad, been twict married, been an undertaker, been with the railroads, plowed Mother Earth, been in a tornado, seen a man burnt alive oncet,” and he looked up at the children’s mother and the little girl who were sitting close together, their faces white and their eyes glassy; “I even seen a woman flogged,” he said.
“Pray, pray,” the grandmother began, “pray, pray . . .”
“I never was a bad boy that I remember of,” The Misfit said in an almost dreamy voice, “but somewheres along the line I done something wrong and got sent to the penitentiary. I was buried alive,” and he looked up and held her attention to him by a steady stare.
“That’s when you should have started to pray,” she said “What did you do to get sent to the penitentiary that first time?”
“Turn to the right, it was a wall,” The Misfit said, looking up again at the cloudless sky. “Turn to the left, it was a wall. Look up it was a ceiling, look down it was a floor. I forget what I done, lady. I set there and set there, trying to remember what it was I done and I ain’t recalled it to this day. Oncet in a while, I would think it was coming to me, but it never come.”
“Maybe they put you in by mistake,” the old lady said vaguely.
“Nome,” he said. “It wasn’t no mistake. They had the papers on me.”
“You must have stolen something,” she said.
The Misfit sneered slightly. “Nobody had nothing I wanted,” he said. “It was a head-doctor at the penitentiary said what I had done was kill my daddy but I known that for a lie. My daddy died in nineteen ought nineteen of the epidemic flu and I never had a thing to do with it. He was buried in the Mount Hopewell Baptist churchyard and you can go there and see for yourself.”
“If you would pray,” the old lady said, “Jesus would help you.”
“That’s right,” The Misfit said.
“Well then, why don’t you pray?” she asked trembling with delight suddenly.
“I don’t want no hep,” he said. “I’m doing all right by myself.”
Bobby Lee and Hiram came ambling back from the woods. Bobby Lee was dragging a yellow shirt with bright blue parrots in it.
“Thow me that shirt, Bobby Lee,” The Misfit said. The shirt came flying at him and landed on his shoulder and he put it on. The grandmother couldn’t name what the shirt reminded her of. “No, lady,” The Misfit said while he was buttoning it up, “I found out the crime don’t matter. You can do one thing or you can do another, kill a man or take a tire off his car, because sooner or later you’re going to forget what it was you done and just be punished for it.”
The children’s mother had begun to make heaving noises as if she couldn’t get her breath. “Lady,” he asked, “would you and that little girl like to step off yonder with Bobby Lee and Hiram and join your husband?”
“Yes, thank you,” the mother said faintly. Her left arm dangled helplessly and she was holding the baby, who had gone to sleep, in the other. “Hep that lady up, Hiram,” The Misfit said as she struggled to climb out of the ditch, “and Bobby Lee, you hold onto that little girl’s hand.”
“I don’t want to hold hands with him,” June Star said. “He reminds me of a pig.”
The fat boy blushed and laughed and caught her by the arm and pulled her off into the woods after Hiram and her mother.
Alone with The Misfit, the grandmother found that she had lost her voice. There was not a cloud in the sky nor any sun. There was nothing around her but woods. She wanted to tell him that he must pray. She opened and closed her mouth several times before anything came out. Finally she found herself saying, “Jesus. Jesus,” meaning, Jesus will help you, but the way she was saying it, it sounded as if she might be cursing.
“Yes’m,” The Misfit said as if he agreed. “Jesus shown everything off balance. It was the same case with Him as with me except He hadn’t committed any crime and they could prove I had committed one because they had the papers on me. Of course,” he said, “they never shown me my papers. That’s why I sign myself now. I said long ago, you get you a signature and sign everything you do and keep a copy of it. Then you’ll know what you done and you can hold up the crime to the punishment and see do they match and in the end you’ll have something to prove you ain’t been treated right. I call myself The Misfit,” he said, “because I can’t make what all I done wrong fit what all I gone through in punishment.”
There was a piercing scream from the woods, followed closely by a pistol report. “Does it seem right to you, lady, that one is punished a heap and another ain’t punished at all?”
“Jesus!” the old lady cried. “You’ve got good blood! I know you wouldn’t shoot a lady! I know you come from nice people! Pray! Jesus, you ought not to shoot a lady. I’ll give you all the money I’ve got!”
“Lady,” The Misfit said, looking beyond her far into the woods, “there never was a body that give the undertaker a tip.”
There were two more pistol reports and the grandmother raised her head like a parched old turkey hen crying for water and called, “Bailey Boy, Bailey Boy!” as if her heart would break.
“Jesus was the only One that ever raised the dead,” The Misfit continued, “and He shouldn’t have done it. He shown everything off balance. If He did what He said, then it’s nothing for you to do but thow away everything and follow Him, and if He didn’t, then it’s nothing for you to do but enjoy the few minutes you got left the best way you can-by killing somebody or burning down his house or doing some other meanness to him. No pleasure but meanness,” he said and his voice had become almost a snarl.
“Maybe He didn’t raise the dead,” the old lady mumbled, not knowing what she was saying and feeling so dizzy that she sank down in the ditch with her legs twisted under her.
“I wasn’t there so I can’t say He didn’t,” The Misfit said. “I wisht I had of been there,” he said, hitting the ground with his fist. “It ain’t right I wasn’t there because if I had of been there I would of known. Listen lady,” he said in a high voice, “if I had of been there I would of known and I wouldn’t be like I am now.” His voice seemed about to crack and the grandmother’s head cleared for an instant. She saw the man’s face twisted close to her own as if he were going to cry and she murmured, “Why you’re one of my babies. You’re one of my own children!” She reached out and touched him on the shoulder. The Misfit sprang back as if a snake had bitten him and shot her three times through the chest. Then he put his gun down on the ground and took off his glasses and began to clean them.
Hiram and Bobby Lee returned from the woods and stood over the ditch, looking down at the grandmother who half sat and half lay in a puddle of blood with her legs crossed under her like a child’s and her face smiling up at the cloudless sky.
Without his glasses, The Misfit’s eyes were red-rimmed and pale and defenseless-looking. “Take her off and thow her where you shown the others,” he said, picking up the cat that was rubbing itself against his leg.
“She was a talker, wasn’t she?” Bobby Lee said, sliding down the ditch with a yodel.
“She would of been a good woman,” The Misfit said, “if it had been somebody there to shoot her every minute of her life.”
“Some fun!” Bobby Lee said.
“Shut up, Bobby Lee” The Misfit said. “It’s no real pleasure in life.”
The Union Pacific Railroad Company will take greater care in handling the hazardous freight it hauls through San Bernardino County and at the Inland Valley and two desert rail yards it maintains as the result of a lawsuit settlement brought against it.
That lawsuit, a so-called toxic tort/environmental action filed as a civil rather than a criminal complaint against the Union Pacific Railroad as the primary subsidiary of Omaha, Nebraska-based Union Pacific Corporation, had four plaintiffs: the district attorney’s offices of Placer, Nevada, San Joaquin and San Bernardino counties. The matter was filed as a multi-jurisdictional dispute in Placer County Superior Court and heard in the courtroom of Placer County Superior Court Judge Alan Pineschi in Roseville.
The Union Pacific’s J.R. Davis Yard, formerly known as the Roseville Marshalling Yard, is located in Placer County and is the largest rail yard on the West Coast, according to Union Pacific.
The heavy legal lifting in the suit was done by Placer County Deputy District Attorney Beverly Crue, who was assisted by prosecutors from the other three counties, including San Bernardino County Deputy District Attorney Rick Lal, who works in the San Bernardino County District Attorney’s office’s consumer and environmental protection unit.
In San Bernardino County the Union Pacific operates the Colton Rail Yard, which lies south of the 10 Freeway in both the unincorporated county area of Bloomington as well as in west Colton, and rail yards in unincorporated Kelso in the Mojave National Preserve and in Yermo, in the Mojave Desert east of Barstow.
Previously, the Union Pacific was in violation of the Aboveground Petroleum Storage Act. Along the railroad tracks and in its storage yards there were unreported spills of hazardous waste, improperly labeled hazardous waste drums and leaks from equipment. At the rail yards, storage tanks were not being inspected by those trained, qualified and licensed to do so.
The suit specifically alleged the company mishandled hazardous wastes and materials in storage tanks, failed to keep accurate hazardous material records, maintained inaccurate hazardous material business plans and spilled hazardous substances and fuel over an eight-year period.
On December 19, the plaintiffs and Union Pacific reached a settlement calling upon the railroad company to pay $2.3 million and make changes in how it handles hazardous waste at its rail yards. One requirement under the settlement is that Union Pacific will hire a hazardous materials handling regulation compliance officer who is to ensure the proper disposal, labeling and storage of hazardous waste; keep records of shipments of hazardous waste; train employees about handling the waste; and prepare a plan and implement measures to prevent spills
San Bernardino County District Attorney Jason Anderson said Union Pacific has already hired a compliance officer assigned to San Bernardino County.
The settlement includes $2 million in civil penalties and $313,432.41 to reimburse counties for the cost of investigations. San Bernardino County’s share of the settlement is $480,000.
According to Union Pacific’s spokeswoman, Hannah Bolte, the past violations were primarily attributable to employees she did not identify.
“Union Pacific took immediate action after learning about the hazardous material regulatory claims,” Bolte said. “We pinpointed the main source of the problem to personnel issues, which we addressed immediately. We have hired a third party environmental compliance officer to monitor and report our compliance with environmental laws and regulations. We cooperated fully with the district attorneys in four California counties to reach a mutually acceptable agreement to resolve these claims, and we have taken necessary steps to prevent future recurrences.”
San Bernardino County’s recently installed Third District supervisor, Dawn Rowe, has fleshed out her staff with seven people, but has yet to determine who will serve as her chief of staff.
Next week at its regular meeting on Tuesday, the board of supervisors will be asked to ratify Rowe’s hiring of Jim Miller as a beginning level field representative; Elaine Villa as slightly better paid beginning level field representative; Heather Perry as an extremely well-paid beginning level field representative; Claire Cozad as a handsomely paid policy advisor; Joshua Imeri-Garcia as a well-paid constituent services representative; Suzette Swallow as a well-paid communications advisor; and Dillon Lesovsky as a comparatively poorly-paid policy advisor.
The official title conferred upon Miller is to be field representative I. He will be paid an annual salary of $26,669, with benefits of $1,018 for a total annual compensation of $27,687.
Villa is to hold the title of field representative I. She will receive an annual salary of $26,499, with benefits of $11,882, for a total annual compensation of $38,381.
Perry is to hold the title of field representative I but will make substantially more than her colleagues Miller and Villa, receiving a salary of $47,653, and benefits of $33,152, with a total annual compensation of $80,805.
Cozad will be cataloged with the county human resources department as a policy advisor II, and will pull down a salary of $80,080 and benefits of $51,004 for total annual compensation of $131,084.
Imeri-Garcia is categorized as a constituent services representative, rating a salary of $41,454 and benefits of $25,909, for a total annual compensation of $67,363.
officially titled a communications advisor I, remunerated with a salary of $51,896, and benefits of $38,103, with a total annual compensation of $89,999.
Lesovsky is to be known as a policy advisor I with the working title of policy analyst and will receive $19,568 in salary and $1,699 in benefits for a total annual compensation of $21,267.