Fuller Context Undercuts Circumstantial Elements Of Merritt Prosecution

By Mark Gutglueck
Picking up on where they had left off on February 7, prosecutors in the Charles Merritt murder trial this week continued to utilize a sheriff’s department digital forensic investigator/technician who had examined the McStay family’s computers and the detective who oversaw his analysis to advance the contention that the defendant was in the home of the murdered family the night they were slaughtered and that he returned to the scene of the crime two of the four days thereafter.
That testimony and its accompanying evidence was marshaled by the prosecution as what was intended to be some of the most damaging evidence yet presented in the trial implicating Merritt in the horrific killings of the family. That evidence, the prosecution maintains, is in keeping with its underlying theory that the defendant, motivated by greed, had killed the family as a byproduct of his larceny from his business partner Joseph McStay’s checking account.
In its cross examination of the three primary witnesses presented this week, however, the defense came roaring back, confronting a detective who had covered key ground in the case with elements of the prosecutiorial and investigative timeline to demonstrate that some of the checks the prosecution alleges were forged by Merritt were very likely actually made out by McStay, or otherwise written with his permission. The defense further suggested that the encapsulation of evidence offered in the testimony presented by the prosecution witnesses was an extremely selective one that dwelt on aspects which viewed in a wider context were more exculpatory than inculpative.
After having begun his testimony on Thursday of last week, San Bernardino County Sheriff’s Corporal Jason Schroeder, who was previously assigned as a detective in the high tech crimes unit of the department’s investigation division, retook the witness stand on Wednesday, February 13, following the court’s customary dark Friday and no trial activity on Monday and Tuesday. Schroeder possesses expertise in advanced computer forensics and audio and video enhancements.
Schroeder was followed on the witness stand by an in-house fraud and money laundering investigator for QuickBooks, a company which provides a computerized auditing system that was utilized by Joseph McStay for his company, Earth Inspired Products. That witness, Michael West, a retired FBI agent, together with Schroeder set the table for the sheriff’s department homicide detective, Dan Hanke, who testified on Thursday. Hanke laid out in some detail the cross-referencing he did between the raw data which Schroeder had extracted from the cloned hard drives of an eMachine computer and a Hewlett Packard desktop computer that had belonged to Joseph McStay, which included entries into McStay’s QuickBooks accounting system for Earth Inspired Products.
On Wednesday February 13, Raj Maline, Merritt’s defense co-counsel, resumed his cross examination of Schroeder, which he had only partially completed on February 7. Maline established that the varying elements of the investigation relating to the electronic devices Schroeder examined had been compartmentalized.
“Did you do any substantive investigative work?” Maline asked. “I mean, did you look at some of the files on the computer to determine if they had any evidentiary value?”
“No, not extensively,” responded Schroeder. “My goal in writing those reports was providing the information the homicide investigators asked for, and preparing reports complete with that data.”
Schroeder said he had “carved out” from both of the computers at the McStay residence digital artifacts relating to internet activity, including internet searches, that had been done and websites the user or users of the computer had accessed. Schroeder determined there was video, photo and document files on those computers but made no reference to them in the report he generated in response to what was requested by the detectives working the case.
Schroeder’s testimony in response to Maline’s questions reiterated the suggestion brought up during his testimony on direct examination on February 7 that someone had come into the McStay home in Fallbrook more than three days after the time the prosecution theorizes the family was murdered.
According to Schroeder, his analysis of a clone of the hard drive of the eMachine computer in the McStay home shows that a series of Google searches were carried out on the device on February 8, 2010 between 2:06 a.m. and 2:07 a.m. Schroeder said he was not able to make a determination of whether the items searched for within the span of two minutes had been typed in or clicked on from a pull down menu. Schroeder said he was not aware of any other activity on that computer. He said most of his analytical focus was on the eMachine, as opposed to activity on another computer in the home, a Hewlett Packard, which was last accessed on February 8, 2010 at 2:08 a.m. On that Hewlett-Packard, it was determined that the computer had briefly opened to the msn.com home page, which in 2010 was a common opening page. That was all that was booted up to the computer’s opening page. Schroeder indicated there were no following searches on that machine he could identify.
Schroeder said he was not aware of the FBI regional computer forensic lab’s report on the same machines. A subsequent exchange with Maine gave rise to the impression that the Hewlett-Packard computer might not have been accessed by an individual but had rather been stimulated by an automated virus scan.
To Maline’s questions, Schroeder acknowledged that on January 27, 2010, activity on the eMachine included searches with regard to passports and travel to Mexico, including a search on Google for requirements on entering Mexico at 4:46 p.m.; a link to visittomexico.com at 4:47 p.m.; a search with regard to the age requirements for traveling to Mexico at 4:46 p.m. and 4:47 p.m.; access to the GoMexico site at 4:49 p.m.; again to GoMexico at 4:49 p.m.; and another to GoMexico 4:49 p.m., amid searches for passport requirements, documents required for kids to travel to Mexico and general entry requirements to Mexico.
Maline touched on the degree to which evidence within the computer might have been overlooked because of the compartmentalization during the investigation, in which different detectives brought their own investigative focus to the materials that were being examined but did not discuss it with other members of the investigative team.
Schroeder said he was aware of reports about the McStay family crossing over the Mexican border but had not discussed the internet activity relating to the passport travel to Mexico issues with any of the detectives working on the case.
Maline further elicited from Schroeder that he had come across a document with the identifying marker of “Dan Payoff,” which Schroeder said was an XL spreadsheet.
“You didn’t concentrate on other stuff but just mainly internet activity, and this is not internet activity, is it?” Maline asked, referring to the spreadsheet, which appeared to be related to Dan Kavanaugh, another of Joseph McStay’s business associates the defense believes may have been the killer of the family.
“No, it isn’t,” said Schroeder.
“But other folks could go into the computer and concentrate maybe on other documents and other stuff and come up with some files that were not in your report, correct?”
“Yes,” said Schroeder.
“Does that have a file creation date?” Maline asked. “Would you be able to know when that file was created?”
Supervising Deputy District Attorney Sean Daugherty objected that the question lacked foundation but the objection was overruled by Judge Michael A. Smith.
“This report indicates the file was created February 19, 2009 at 6:22 p.m.,” said Schroeder.
Maline asked about a device, which he referred to as “Giuseppe Lap,” meaning Joseph McStay’s laptop computer. Schroeder said he did not remember a laptop that specifically belonged to Joseph McStay.
When Maline initiated an inquiry about a laptop computer from the McStay residence designated as “device 1” by Schroeder, a prosecution objection that was sustained dead-ended any testimony with regard to it.
Later on Wednesday, Michael West, who described himself as an “anti-money laundering investigator” with QuickBooks, told the jury under direct examination that the only person who could make changes to a QuickBooks account would be the master administrator of the account, also referred to as “the owner,” or someone to whom the master administrator gave permission to in the form of providing the account name, code and password.
West said Intuit, the parent company of QuickBooks, had been presented with a subpoena for the QuickBooks account records “regarding two related” accounts held by Joseph McStay and Earth Inspired Products, and that the company had thereafter prepared a “clone” of the Earth Inspired Products account which could be accessed but not altered through the use of account information and a password entrusted to the individual bearing the subpoena, who in this case was Detective Dan Hanke, with the San Bernardino County Sheriff’s Department.
Following West to the witness stand on Wednesday afternoon was San Bernardino County Sheriff’s Department Sergeant Ryan Smith, who has testified previously. Smith testified that he had tracked a 107 minute and 25 second phone call from Merritt’s cell phone to a customer assistance service provider for QuickBooks on February 8, 2010 beginning at 3:11 p.m. and that he had also discovered a phone call from Merritt’s cell phone the following day, February 9, to another QuickBooks customer assistance line that lasted 42 minutes and 56 seconds. Smith further testified that Joseph McStay had made two calls to the San Clemente Branch of Union Bank of California, where McStay had his checking account for Earth Inspired Products. One of those was to the number of Jerome Belen, a financial services officer with the bank, whose card had been in Joseph’s possession. The first of those calls was made on February 4, 2010 at 11:51 a.m., lasting two minutes. The second, lasting seven minutes, was initiated at 12:15 p.m.
On cross examination by Merritt’s defense attorney James McGee, Smith testified that immediately after the conclusion of the February 8 call to the customer assistance line, Merritt returned a missed call to his then-common law wife, Cathy Jarvis, and thereafter made a call to Joseph McStay’s cellphone, a call which lasted 52 seconds.
“So, whatever happened on the phone call to, as you say is the number for QuickBooks, within three minutes of getting off the phone, these records show that whoever had this phone called Joseph’s phone and the phones were connected for 52 seconds,” said McGee.
“Yes,” said Smith.
McGee then asked about what had occurred in the immediate aftermath of the phone call from Merritt’s cell phone to the QuickBooks customer service representative on February 9, 2010.
Smith indicated that Merritt had made a call to Jarvis, who then called him back.
“After that, what number was called?” asked McGee.
“949 295 7451,” said Smith, indicating the cell phone number associated with Joseph McStay.
“How long did that call last?” asked McGee.
“Two minutes and three seconds,” said Smith.
On Thursday, February 14, Sergeant Dan Hanke was brought in to testify. Hanke was a homicide detective who was assigned to the McStay case in 2014.
Under direct examination, Hanke laid out what has been described as the linchpin of the circumstantial case against Merritt.
Hanke explained that McStay had used QuickBooks as the accounting system for Earth Inspired Products, and that the system charted the money flowing into and out of the business. Hanke reiterated what West had told the jury, that he had been granted access to a cloned version of the bifurcated account for Earth Inspired Products by QuickBooks, subject to a subpoena he had obtained. The account, which was originally opened in September 2005, was divided into two sub-accounts, one associated with the email address contact@earthinspiredproducts.com and one associated with the email address custom@earthinspired products.com. The documentation for the account consisted of over 1,000 pages, Hanke testified. The contact sub-account was much more heavily used than the custom sub-account, according to Hanke, and the custom sub-account appeared to be much more recently created. The contact sub-account had, Hanke said, 26 pages of vendors, of which only a single vendor was listed with lower case letters at the start of the vendor name. All others in the contact sub-account, he said were properly capitalized. Those vendors included Charles Merritt and Merritt’s company, Idesign, Hanke said. In the more than three-year history of checks being written using the contact sub-account, Hanke said in response to one of Rodriguez’s questions, only two were deleted from the accounting registry. All of the checks written that were accounted for under the custom sub-account were deleted from the registry, according to Hanke.
Though the custom sub-account had existed prior to 2010, it did not become active until February 2010, according to Hanke, who said that Merritt was added as a vendor on February 1, 2010 at 12:24 p.m. using lower case letters and that Metro Sheet Metal was added as a vendor on February 5, 2010 12:19 p.m., also using all lower case letters. The two other vendors on the sub-account, SDGE and EIP Jobs, were entered utilizing the upper case.
After Hanke stated, “There were numerous checks created on the contact site,” Rodriguez asked him, “Was the custom site different?”
Yes,” said Hanke.
“How so?” asked Rodriguez
“Prior to February 1, 2010, there had never been a check written on that account,” said Hanke.
Using the courtroom’s elevated display monitors, which provide the jury and courtroom observers an oversized depiction of the case exhibits being referenced, Rodriguez had Hanke describe both the Earth Inspired Products checks created in February 2010 and the QuickBooks accounting activity related to them.
One check was created on February 1, 2010 at 12:52 p.m. and dated February 1, made out to charles merritt, entirely in lower case, for $2,500. It was printed and then deleted from the registry. Hanke said it was deposited.
Another was created on February 2, 2010 made out to charles merritt, entirely in lower case letters, dated February 2 for $2,495. After it was printed it was deleted from the registry, according to Hanke, who said the check was cashed.
Another was created on February 4, 2010 at 7:59 p.m. for $4,000 made out to charles merritt, entirely in lower case letters, dated February 4. It was printed and deleted from the registry, according to Hanke.
Another was created on February 5, 2010 at 12:06 p.m. for $4,500 made out to charles merritt, entirely in lower case letters, backdated to February 4. The audit history showed it was edited several times, was printed and deleted from the registry, according to Hanke. The check was cashed, Hanke testified.
Another check was created on February 5, 2010 at 12:21 p.m. for $1,650 to metro sheet metal, entirely in lower case letters, backdated to February 4. It was edited with a new check number, printed and deleted from the registry, according to Hanke. Hanke testified that the check was cashed.
Another check was created on February 5 that was made out to metro sheet metal, entirely in lower case letters, for $250 and backdated to February 4. It was printed and deleted from the registry, according to Hanke. He said it was cashed.
Another check, backdated to February 4, was created on February 5 at 12:29, made out to charles merritt, all lower case, for $6,505. It was printed and then deleted from the registry at 12:38 p.m., according to Hanke. Hanke said the check was deposited.
On February 5, 2010 at 12:33 p.m., another check backdated to February 4 was created, made out to charles merritt, entirely in lower case letters, for $2,350. It was provided with a different check number than was indicated in the QuickBooks history. It was printed and deleted from the registry, according to Hanke. It was cashed, according to Hanke.
On February 8 at 2:20 p.m. a check for $6,500 made out to charles merritt, entirely in lower case letters, backdated to February 4 was created. It was printed and deleted from the registry, according to Hanke.
“There were no checks written from the custom side prior to February 1 2010,” said Hanke
“When you reviewed the checks for Charles Merritt and Metro Sheet Metal that were created on the custom side, was there something significant about them to you?” Rodriguez asked.
“Yes,” said Hanke.
“What was significant about them?” asked Rodriguez.
“The core vendors were lower case letters,” said Hanke.
“And did you see that type of creation of checks on the contact side?” Rodriguez asked.
“No, [on] the contact side, the first letter [of each name] …would be capitalized,” said Hanke.
“The first checks were written on which date?” Rodriguez inquired.
“On the custom account, February 1, 2010,” said Hanke.
“And who were those written to?” asked Rodriguez.
“Charles Merritt,” said Hanke.
At the close of Rodriguez’s direct examination of Hanke, the impression of some courtroom observers was that the prosecution had reached its highest point yet, having constructed the makings of discernible, if somewhat elliptical, circumstantial case. The mounting circumstantial evidence included the precipitous switch from the contact@earthinspiredproducts.com affiliated QuickBooks accounting system to the custom@earthinspiredproducts.com affiliated QuickBooks accounting system on February 1, including the uncharacteristic use of the lower case in the drafting of the checks, suggesting that Joseph was not involved in the drafting of the checks, and that Merritt was forging them; Joseph’s phone calls to the Union Bank on February 4, suggesting that he recognized or had been alerted to something being amiss with his checking account; the uncharacteristic deleting of the checks from the registry; the prolonged phone calls from Merritt to the QuickBooks customer service line; and the entry into the McStay home in the early morning of February 8.
Thereafter, however, McGee began his cross examination of Hanke.
To McGee’s question, Hanke indicated some of the checks to vendors issued on the Union Bank of California account for Earth Inspired Products were typewritten and others were filled in by hand, with the ones typewritten being in the 4200 number series and the handwritten ones from a 1000 number series. All were covered by funds from the same account, Hanke said.
“The only administrator was Joseph McStay?” McGee asked with respect to the Earth Inspired Products QuickBooks account.
“Yes,” said Hanke.
“Not Dan Kavanaugh?” asked McGee.
“That’s correct,” said Hanke.
“Dan Kavanaugh had no administrative rights on that account?” McGee asked.
“He was not listed as an administrator,” said Hanke.
“You wrote this report about all these checks, and you’re highlighting the activity you saw in QuickBooks,” said McGee. “Were you doing that because you thought it was suspicious?”
“Yes, sir,” said Hanke.
“And part of the suspicious nature of it was activity that was happening after someone last heard from Joseph McStay?” McGee said.
“That was part of it,” Hanke said.
“That came as a red flag,” said McGee.
“There were other things that were being checked on that account, so that was definitely suspicious,” said Hanke.
“So, from the time that it started, and the fact that activity continued, you’re like ‘I should probably take a good look at this.’ Is that fair to say?” said McGee.
“Yes,” said Hanke.
McGee displayed on the courtroom’s overhead monitors the log of account activity between 12:34 p.m. and 12:52 p.m. on February 1, 2010 when the checks were being written side-by-side with Merritt’s cell phone records and, alternatively, Joseph McStay’s phone records, showing that a 9 minute and 56 second phone call between Merritt and McStay took place shortly after the check writing activity concluded.
“So, after the last adjustment on the checks at 12:52, within 11 minutes Joseph calls my client,” said McGee.
“That’s what the record shows, yes,” said Hanke.
McGee then referenced the two checks written on the Earth Inspired Products account on February 2, 2010, showing they were written and completed “one at 11:27 a.m. and one at 11:29 a.m.”
“Yes, sir,” said Hanke.
“Both were deleted at 11:37,” said McGee.
“Yes, sir,” Hanke said.
McGee then referenced a phone call from Merritt to McStay at 10:56 a.m. on February 2, 2010, and Hanke acknowledged a call took place at that time.
“And then he called at 11:46 a.m.,” said McGee.
“Yes, sir,” said Hanke.
“That is a call that lasted for three minutes and 24 seconds,” said McGee.
“That’s right,” said Hanke.
“And that was nine minutes after the last check was adjusted on that day?” asked McGee.
“That sounds about right,” said Hanke.
“And again at 12:04 that same day, my client called Joseph again and there’s another call for over 13 minutes,” said McGee.
“Yes, there was a call to Joseph McStay for 13 [minutes],” said Hanke.
“Right after those checks were adjusted and deleted and everything, correct?” asked McGee.
“The checks were created before the phone call,” Hanke acknowledged.
“Just like a couple of days before, right?” asked McGee
“You talked about when a check was added [on] February 4 at 7:59 and deleted at 8:05,” said McGee.
“Correct,” said Hanke.
Then referencing McStay’s phone records, McGee said, “That night he called down at 8:28 p.m. with Joseph’s phone ringing to my client’s phone, correct?”
“Yes, on this record it shows at 8:28 a phone call,” said Hanke
“To my client’s phone,” said McGee.
“Yes, to your client’s phone at 8:28,” said Hanke.
“And that was again, 23 minutes after the deletion of the check,” said McGee.
“Yes,” said Hanke.
“The next date is February 5,” McGee said. “The time between when the audit history first shows a check being added to the time they end is what time?” asked McGee.
“The first check is added at 12:06 p.m. and the last one deleted at 12:39 p.m.,” said Hanke.
“And then they sign out at 12:40, correct?” asked McGee.
“Yes, sir,” said Hanke.
Referencing the phone records, McGee then asked, “So we have a call at 10:59 a.m.?”
“Yes,” said Hanke
“And that’s from my client to Joseph’s phone?” McGee asked.
“Yes,” said Hanke.
“Fifty-five seconds,” said McGee.
“Yes,” said Hanke.
“The next call was at 12:49,” McGee said, noting it came ten minutes after the check writing session using the QuickBooks system had ended. “It appears to be a second call from my client’s phone to Joseph McStay’s phone that lasted 53 seconds, correct?”
“Yes,” said Hanke.
“That occurs after the last check was deleted,” said McGee.
“Yes, sir,” said Hanke.
“And the next item you dealt with [was] on February 8, correct?” McGee asked.
“There was one check added and deleted on the eighth,” said Hanke.
“And it was added at 2:20 in the afternoon,” McGee said.
“Yes, sir,” said Hanke.
“And edited modified, everything done to it, then deleted at 2:25, correct?” asked McGee.
“Correct,” said Hanke.
McGee then asked if Hanke could find in Merritt’s cell phone records “a call at 1:55 p.m. on 2/8 [February 8, 2010]?”
“Yes, sir,” said Hanke.
“A phone call from my client’s phone to Joseph McStay’s phone that lasts one minute and 12 seconds?” asked McGee.
“Correct,” said Hanke.
“And that would be 25 minutes before that check was first added?” asked McGee.
“Yes,” said Hanke.
“And that was the same day the calls were made to QuickBooks, correct, a little after three o’clock?” asked McGee.
“Yes,” said Hanke.
“So, according to the phone records, there was a call from my client’s phone to Joesph McStay, there’s checks added, deleted, and a call made to QuickBooks?” asked McGee.
“Correct,” said Hanke.
And after one hour and 47 minutes there’s there’s a call from my client’s phone to Joseph McStay’s phone, again, correct?” asked McGee.
“Yes,” said Hanke.
“So, all these phone calls that preceded or were after the check edits and everything that was done in QuickBooks, did you note all of that in your report?” McGee asked.
“I didn’t,” said Hanke.
“Did you even notice it?” asked McGee.
“Objection, argumentative” interjected Rodriguez.
“Sustained,” said Judge Smith.
“Did you examine the phone records to see if there were any calls between Mr. Merritt and Mr. McStay around the time of the QuickBook activity?” asked McGee.
“I did not analyze the phone record,” said Hanke.
“Does it make it seem a little less suspicious now?” asked McGee.
“Objection, argumentative,” said Rodriguez.
Judge Smith sustained the objection.
“This isn’t the only thing you did for this investigation,” said McGee. “You did other stuff.”
“Sure,” said Hanke. “Yes.”
“We also had the testimony of McGyver McCarber earlier in this trial,” said McGee. “You interviewed him, correct?”
Yes,” said Hanke.
“Mr. McCarber at trial testified that he was at the house [i.e., the McStay family home] on January 31 and February 2,” said McGee. “He told you that same information?”
After consulting his report, Hanke responded, “Yes, sir.”
“McGyver told you that the conversation he had with Mr. McStay was he finally bought out and got rid of Dan Kavanaugh…’
“Objection, hearsay, relevance,” Rodriguez protested.
“Overruled,” said Judge Smith.
“I don’t remember,” said Hanke.
“So, around the time Mr. McGyver is talking to Mr. McStay, saying, ‘I finally got rid of Dan Kavanaugh,’ is the same time he started writing checks on the custom account…”
“Objection, misstates the testimony and is argumentative,” Supervising Deputy District Attorney Britt Imes said.
Judge Smith sustained the objection.
“When McGyver spoke with Joseph on January 31 and February 2, and talked about finally buying out Dan Kavanaugh, you said on February 1, the day between those two days, is the first time we saw check activity in the custom website, correct?” asked McGee.
“Correct,” said Hanke.
“So, buying out and being done with Kavanaugh is a relatively important date to change your practice and start writing under a different account,” McGee began.
“Objection, calls for speculation,” Imes said.
“Sustained, said Judge Smith.
“As part of your investigation were you aware that Dan Kavanaugh was violent?” asked McGee.
“Objection, beyond the scope and calls for hearsay,” said Imes.
“Sustained as beyond the scope at this time,” said Judge Smith.
“When you reviewed your QuickBook records before trial, did it give you the IP addresses to tell you which computer the online QuickBook activity occurred on?” asked McGee.
“No, it didn’t,” responded Hanke.
“Did you request that information from QuickBooks?” McGee asked.
“I did not,” said Hanke.
“So, you, based on the records you see, can only say that the log-in for Joseph McStay was what was used to access the account?” asked McGee.
“Yes,” said Hanke.
“The person would need to have the log-in code and the password,” said McGee.
“Correct,” said Hanke.
Prior to Hanke’s testimony, there was discussion involving the prosecution and defense before Judge Smith outside the presence of the jurors about testimony that would be permitted and evidence that would be deemed admissible. The prosecution wanted contents from Merritt’s cell phone to be displayed to the jurors. That included photos of the site where the family had been buried in the desert, which has since been converted into something of a shrine to the family, as well as internet searches Merritt had engaged in. While Smith ruled much of what the prosecution wanted to present was either irrelevant or prejudicial, he said that he would allow the prosecution to display one of Merritt’s cell phone photos which was a closeup of the tire tracks leading up to the shallow graves in which the family was crudely interred, internet inquiries about the U.S. border and references to changing identity, as well as a screen shot of Joseph’s McStay’s cell phone records and contact list that was on Merritt’s phone.
This stirred up McGee.
“If the court is going to make the leap that such information can be argued as relevant, the defense will renew its interest in bringing in Mr. Spears to talk about Mr. Kavanaugh being upset with him, saying ‘You did me dirty in business deals and I know how to make people disappear. If anything happens they’ll find your bones in the desert.’ And he says, ‘You’re doing me dirty in this business deal.’ We will learn from Detective Hanke that Kavanaugh expressed to Detective Hanke that he felt he was done dirty by Joseph by hiding all the accounts in custom, and that all of those were his business, either his accounts, and they did that. So the same thing to where Mr. Kaavanaugh is showing, ‘I was done wrong by Joseph. I know how to make people disappear in the desert,’ and he makes that threat to somebody else. The court has excluded that. We should be able to bring that in to show there are threats that Kavanaugh made against other people that’s consistent with what happened to the McStays under the same circumstance.”
Judge Smith responded, “Number one, it’s not the same standard for admissibility for potential third party culpability as it is with regard to the defendant. Secondly, we’ve had extensive discussions about that, and I’ve already ruled that under the circumstances that is not relevant on relevancy grounds and Evidence Code [Section] 352. I explained the reason for that is those statements were allegedly made a short time after the bodies were discovered in the desert. So, anyone who knew the McStays knew that they disappeared and knew that three-and-a-half years later their skeletal remains were found in the desert could say ‘I know how to make people disappear. You bury them in the desert and they’re either never found or their bones are found.’ Anyone, who even if they didn’t know them who followed the case or read about it, would also be able to make that same comment. So, those comments, I don’t see any relevance to them.”
“Well, the problem with that now is…” McGee started.
“We’re not going to reargue that motion,” Judge Smith preempted the defense attorney.
“I know, but the issue that I have is you are already letting in third party culpability evidence,” said McGee. “Once you do that, it all comes in as relevant…”
No, that’s not true,” rejoined Judge Smith.
McGee persisted. “The fact is, they [the prosecution] are making this a financial crime, saying he stole $20,000,” he said. “Mr. Kavanaugh profited a quarter million dollars after they disappeared.”
“And I indicated that the dealings between Kavanaugh and McStay and Earth Inspired Products – I will allow you to go into that. Any moneys that you allege that Mr. Kavanaugh took from the business or was paid from the business or the sale of the business, I already ruled that is admissible.”
“The threat’s tied with not just any random person, but somebody who profited a quarter of a million…” McGee tried once more.
“We’ve already argued that,” snapped Judge Smith. “I’ve already ruled on that. Your record is made.”
Nevertheless, minutes later Judge Smith indicated that Kavanaugh will likely appear as a witness when the defense puts on its case.
In a discussion about whether Judge Smith would allow the defense to quiz Hanke, while he was on the stand that day as a prosecution witness, about his questioning of Kavanaugh during his investigation, the judge said, “It sounds like that testimony from Detective Hankey with regard to Mr. Kavanaugh would be beyond the scope, so I would probably sustain objections on that grounds. Whether or not it would be admissible in your case in chief, particularly after Mr. Kavanaugh testifies, may be a different story,” Judge Smith said.