By Mark Gutglueck
Along separate tangents, Charles Merritt’s defense team during two days of testimony this week sought so illustrate the degree to which investigators and prosecutors miscast the defendant as the perpetrator of the horrific McStay murders, either misinterpreting or neglecting to explore evidence that supports a variant conclusion. In the course of that court action, Michael McStay, the brother/brother-in-law/uncle of the victims who served as an orienting prosecution witness in the early days of the trial, was recalled to the witness stand by the defense. Thereafter, the defense brought in an expert witness in the arena of DNA analysis to preview evidence overlooked by the prosecution which Merritt’s advocates maintain indicates the family met its gruesome fate at the hands of others who escaped apprehension.
The defense’s strategy in pursuing what was sometimes an aggressive examining of Michael McStay, whose loss of his older sibling renders him a poignantly sympathetic figure to many who have followed the case, was to convey to the jury the degree to which context and character assassination, two tactics freely indulged in throughout the trial against Merritt by the prosecution, can color the portrayal of virtually any of the individuals who were in the orbit of those who were murdered.
Charles “Chase” Merritt, according to the prosecution, was a gambling addict whose lack of financial discipline rendered him into such a state of economic desperation that he had engaged in a series of thefts from Earth Inspired Products, the company owned and operated by his business associate, Joseph McStay. Through that company, Joseph was selling high end decorative water fixtures – artificial waterfalls and fountains – which Merritt designed and manufactured out of steel, glass, rock and other components based upon the specifications outlined by the company’s customers and passed along to Merritt by McStay. The prosecution’s theory, presented during the initial nine weeks of the trial that began on January 7, is that Merritt in early February 2010 fraudulently utilized the QuickBooks accounting system McStay had set up for the Earth Inspired Products enterprise to pilfer thousands of dollars by issuing himself a series of checks.
When he learned of what Merritt was up to, either shortly before or perhaps even on February 4, 2010, Joseph McStay traveled to Rancho Cucamonga, where Merritt was then living, and confronted him about his larceny, threatening to alert authorities, prosecutors allege. After Joseph McStay returned to San Diego County, the prosecution’s theory continues, Merritt that evening drove to the McStay residence in Fallbrook where he killed Joseph McStay, his wife Summer and their two sons, four-year-old Gianni and three-year-old Joseph, Jr.
Merritt then secreted the bodies for two days, in the meantime again fraudulently accessing Joseph McStay’s QuickBooks account for Earth Inspired Products, the prosecution maintains, and on February 4, 2010, February 5, 2010 and again on February 8, 2010 issued himself checks made out to himself for at total of $23,855. Merritt then transported the corpses up into San Bernardino County’s High Desert, an area with which Merritt was familiar from having grown up in Hesperia and attended Apple Valley High School for three years in the 1970s. It was in that spot where on February 6, 2010 he 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, according to the prosecution. To confuse the situation, throw authorities off his track and delay a serious investigation into the matter, the prosecution maintains Merritt then 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 roughly a quarter of a mile from the Mexican border.
Established through Michael McStay’s testimony when he was called by the prosecution during the first week of trial in January was that he had traveled to Fallbrook to meet Merritt there on Saturday February 13, 2010, and then follow him to his brother’s house located at 3473 Avocado Vista Lane, to which he said he had not previously been. Once there, Michael McStay testified, he had noted the family’s dogs abandoned in an enclosure in the backyard. After finding an unlocked window into the room at the back of the house his brother used for his home business office, Michael McStay testified he removed the window’s screen and slid the framed glass panel over along its glides so he could climb through the opening to gain access to the interior of the house. Inside, McStay had encountered an eerily empty domicile in which it appeared that the family had abruptly departed, with food items left out on the kitchen counter and the premises in a state of mild disarray. Still uncertain as to whether and wishfully hoping his brother and his family might have simply left town for an unannounced getaway and that they might return by the following day, Valentine’s Day, Michael McStay said they departed, and that he waited until Monday, February 15, 2010 to contact the San Diego County Sheriff’s Department to express his concern about his brother’s family’s whereabouts. It was at that point that authorities began focusing upon the matter as a multiple missing persons case.
Michael McStay and his mother, Susan Blake, had also previously testified for the prosecution about their efforts, in the late winter and spring of 2010, to keep Earth Inspired Products up and running in anticipation of Joseph’s eventual return, an effort that included having Merritt complete and deliver projects that had been on order at the time of Joseph’s disappearance as well as new orders that subsequently came in. Two weeks ago, in the early stage of the defense putting on its case, Blake had been called by the defense, and she was subjected to a round of questioning that delved into the amount of money she had personally withdrawn – $17,650 – from the account she had set up for Earth Inspired Products in 2010. The defense had elicited that testimony in an intended effort to counterbalance the prosecution’s suggestions that the money Merritt had realized in the immediate aftermath of the McStay family’s disappearance was the motive for the murders.
On Wednesday April 3, when the trial before the jury resumed after no testimony was heard last week because of witness scheduling issues, Merritt’s defense co-counsel, Raj Maline, questioned Michael McStay about his having removed one of the McStay family’s home computers and an external hard drive from the 3473 Avocado Lane premises on February 15, 2010. Michael McStay previously testified that he had wanted to use photographs of the family he could glean from those computer files to create fliers to alert the public to the family’s disappearance and encourage anyone seeing anything that could be of assistance in the search to come forward. In his questioning of Michael McStay on April 3, however, Maline attempted to widen his inquiry as to whether Michael McStay had, while he was in possession of the computers, also obtained bank records or information relating to financial transactions his brother had been engaged in.
Michael McStay’s removal of the computer and external hard drive from the McStay home during the initial stage of the missing persons investigation had previously arisen as a matter involving a minor contradiction in the trial. Michael McStay in January testified that he had taken the computer and hard drive with the assent of San Diego Sheriff’s Department Homicide Detective Troy DuGal, who in February 2010 was heading up the missing persons investigation. DuGal in January testified that he had not granted Michael McStay permission or in any way conveyed that it would be acceptable for him to remove the computer from the home.
Michael McStay previously testified that he had failed to take the power cord for the computer his brother had used for handling his business transactions, and had not accessed the computer. He also indicated that he was instructed to return the computer and external hard drive, which he did, such that the equipment was in place back at the McStay home on February 19, 2010, when investigators with the San Diego Sheriff’s Department executed a search warrant at the house. On Wednesday of this week, Maline pressed Michael McStay with regard to whether he had obtained from the computer any information about his brother’s finances or those of Earth Inspired Products or their banking records. Michael McStay repeated his earlier testimony that he did not have the computer’s power cord and thus could not actuate it. Maline dwelt on the matter in an effort to more fully explore issues that have come up during the trial relating to the thoroughness of the San Diego Sheriff’s Department’s investigation in February 2010, when the matter was yet considered a missing persons case. In hindsight, it has been suggested, evidence that might have had a bearing on the subsequent homicide investigation was overlooked at that time. In defense of himself and his department in the face of those suggestions, DuGal in his testimony said that he and his team were constrained by constitutional limitations on a law enforcement agency’s ability to act and that at the time he did not have legal authority to confiscate items or access information beyond the scope of carrying out an effort to find the family. Maline in his questioning of Michael McStay this week touched on whether DuGal had perhaps tacitly assented to having him gather information about his brother’s financial activities so as to maneuver around the legal restrictions the San Diego County Sheriff’s Department faced on directly accessing that information. This line of questioning appeared to be angled toward establishing that investigators had very early on probed the McStay family disappearance along a line that was misfocused upon Merritt, and that misfocus carried over into the San Bernardino County Sheriff’s Department’s investigation after the bodies of the family were discovered more than three-and-a-half years later.
“There was a question about a computer that you took,” said Maline. “Do you recall that questioning?”
“Yes,” McStay responded.
“You took a computer out of the house, correct?” Maline asked.
“Yes,” Michael said. “I took the computer out on the 15th [of February, 2010]. It would be a Monday, when DuGal was there, because I asked him would I be in trouble for taking it. I took the SIM card, I took the Maxtor external hard drive and I took the Emachine, of which I didn’t have the power cord, so I couldn’t power it up.”
“Did you take more than one computer?” Maline asked.
“An external hard drive, like a disc drive you can go USB in,” Michael McStay responded. “I believe I stated this already.”
“Did you take a laptop?” Maline asked.
“An external hard drive is not a laptop,” McStay said.
“That’s not my question,” said Maline. “My question is ‘Did you take a laptop?’”
“I did not,” Michael answered.
“You knew your brother had a laptop, correct?” Maline asked.
“Yeah,” Michael McStay said. “I knew he had one or some. I don’t know how many.”
“Did you ever see the laptop when you were in the house on the 13th [of February, 2010]?” Maline asked.
“It might have been in his office, but I paid no attention to it,” Michael said.
“And you know that when you were interviewed in 2013 and 2014, the detectives shared with you they couldn’t find that laptop, Joseph’s laptop…” Maline started.
“Objection, assumes facts not in evidence,” Supervising Deputy District Attorney Britt Imes said.
“Sustained,” Judge Michael A. Smith said.
“Did you have a discussion about a missing laptop with detectives from San Bernardino [County]?” Maline asked.
“I don’t know,” replied McStay.
“Did you know whether or not Joseph’s laptop was missing?” Maline probed.
“I have no idea,” Michael McStay said.
“Objection, assumes facts not in evidence,” Imes said. “Move to strike.”
“Overruled,” Judge Smith said. “The answer’ll remain.”
“When you took the computer from your brother’s house, did you, were you able to use it in any way?” Maline inquired. “I know you said you couldn’t boot it up, so I’m assuming you couldn’t even get it on to do anything with it.”
“Without a power cord you can’t power up a computer, so you can’t get into the operating software, sir,” McStay said.
“Well, you could have bought a power cord, right?” Maline said.
“Objection, argumentative,” Imes said.
“Sustained,” said Judge Smith.
“Did you make an attempt to buy a power cord to boot it up?” Maline asked.
“I did not,” replied Michael McStay. “I had other pressing issues.”
“Well, the purpose of taking the computer was that you were going to get financial data off of it so you could give it to the detectives, correct?” Maline persisted.
“Correct,” said Michael. “That was one of my questions to them: ‘What would they first do in an investigation?’ But I did not have a power cord, and there was other things pressing so I did not get into the computer, at all.”
“But you would agree that the reason Detective DuGal suggested it was okay for you to take the computer was for you to get financial data to give to him…” Maline started.
“Objection, speculation,” Imes said.
“Sustained,” said Judge Smith.
“Detective DuGal did not have a search warrant at that time, correct?” Maline asked.
“Objection, relevance, foundation,” Imes said.
“Sustained,” Judge Smith ruled.
“Did Detective DuGal ask you to go into the computer and get that data for him?” Maline asked.
“No, he did not,” Michael McStay said.
“That was something you suggested,” Maline said.
“That was something I asked,” Michael clarified.
“And he said, ‘Yes,’ correct?” Maline asked.
“I asked if I would get in any trouble, and he said, ‘No.’ So I did what any good brother would do,” McStay said.
“Because it was important to get financial data at that early stage, and you were going to do your best to help, correct?” Maline asked.
“At that point I thought it was a missing persons case, so I was doing whatever I could for my family,” Michael said.
“So that would be a ‘Yes.’ You were going to do whatever you could, including trying to get the financial data off the computer,” Maline said.
“Absolutely,” Michael McStay said.
“So my question goes back to why didn’t you go get a power cord to boot up the computer to do that?” Maline said.
“Objection, argumentative,” Imes swooped in.
“Overruled,” Judge Smith said. “He can answer.”
“There were other pressing issues, considering an entire family was missing,” McStay responded. “So, I didn’t feel it was as urgent as other things, like getting all the pictures extracted, getting them on the website I had made and generating leads for the detectives. So, yeah, I was a little busy, and raising a family. This is all in my other testimony.”
Michael McStay’s access to his brother’s company’s financial records had been explored earlier in the defense presentation of its case on March 19, 2019 when Merritt’s defense co-counsel James McGee questioned San Bernardino County Sheriff’s Sergeant Joseph Steers, one of the investigators assigned to investigating the McStay family homicides beginning in 2013. To McGee’s inquiry, Steers acknowledged interviewing Michael McStay on September 20, 2014 and that he spoke to him about his access to Earth Inspired Products’ financial records. Steers testified that Michael McStay possessed financial information relating to the company but that Michael McStay had told Steers he did not have personal access to the company’s financial records.
When McGee attempted to pursue that matter further on March 19, prosecution objections were granted and the line of questioning was terminated.
Similarly this week, Maline, after encountering Michael McStay’s statement that he did not have the power cord to the McStay family computers, was unable to explore to any significant degree how much information Michael McStay had with regard to Earth Inspired Product’s banking records and how much of that information, if any, he had passed along to law enforcement investigators.
Maline experienced better traction when he delved into the subject of Michael McStay’s connection to Earth Inspired Products. After asking about that connection, which initially seemed angled toward Michael’s effort after his brother’s disappearance to maintain the company as a going concern, Maline drew a bead on Michael being a principal in the company long before that, while his brother was yet around.
Referencing McStay’s testimony early in the trial, Maline said,“Mr. Imes asked you a series of questions about your involvement in Earth Inspired Products after February 2010. Do you recall him asking about that?”
“Can you be more specific?” Michael asked.
“Sure,” said Maline. “He asked you about what you did, if anything, to keep the business open after your brother disappeared.”
“Yes, I remember that,” McStay said.
“And he asked you – correct me if I’m wrong – he asked you what your involvement with EIP [Earth Inspired Products] was prior to your brother going missing,” Maline said. “You indicated you had little to do with EIP prior to your brother going missing. Is that accurate?”
“Correct,” Michael McStay said. “It was my brother’s business. I had my own business. He has his own business.“
“And you indicated your business started with your brother helping you, correct?” Maline asked.
“Yes,” said McStay.
“Was that 2006 or 2005 or…” Maline asked.
“I think my license got issued right before they got married, because when I was at the wedding, he kept saying ‘C-16, C-16,’ which is my license classification,” Michael McStay said.
“Was that in 2006?” Maline asked
“That was the end of 2007, I believe,” Michael said. “It got issued November 30th of 2007.”
“So in 2007, you had your own business, anyway,” said Maline. “Started your own business. Joseph had his. Prior to 2007, you didn’t have much to do with Earth Inspired Products, did you?”
“I did not,” McStay said. “My brother literally for about the last two years was asking me to learn how to weld. He wanted me to learn how to weld, but I didn’t have any involvement in his business. He wanted me to weld to replace Chase.”
Had you ever welded before?” Maline asked.
“I had not,” Michael McStay said. “We do in my industry, but you need a C-60 license and I just don’t have the experience. So I kept telling him I would need time to learn how to do that. And doing it on the weekends is is not enough time to do [it] while I’m running my business and family life. It’s too difficult.”
“Did you ever make statements or represent to parties you were the owner of Earth Inspired Products?” Maline asked.
“Objection, vague as to time,” said Imes.
“Overruled,” Judge Smith said.
“Before or after?” Michael sought clarification.
“Let’s say before 2010,” Maline said.
“Before they’re missing?” McStay asked. “What are we talking about?”
“Yes, before February 2010,” said Maline.
“Before February ‘10, no,” Michael said.
“You never held out to any party, ‘I’m the owner of Earth Inspired Products’?” Maline asked.
“No,” said Michael McStay. “Absolutely not. It’s not my business.”
“Did you ever apply for a loan indicating you were the owner of Earth Inspired Products?” Maline asked.
“I don’t believe so,” McStay responded.
Maline then produced loan documents from February of 2007 in which Michael McStay had made that claim.
“I remember this,” said Michael McStay, at that point conceding he had taken out the loan. “That was for a home loan. I remember that.”
“Did you say you were the owner of Earth Inspired Products?” Maline asked.
“I believe that was with my brother’s approval,” Michael said.
“And that was in February of 2007,” Maline said.
“That was right before we lost the house in I believe 2008, when the payment ballooned,” McStay said. After examining the documents further, he said, “It was actually two loans, a first and second. It was ‘07.”
“So you represented you were the owner and that you had certain income as the owner of Earth Inspired Products,” Maline said.
“Correct,” Michael McStay said. He said the loan was necessitated because “the rate thing adjusted” and his payment had “quadrupled.”
“Isn’t it true that as soon as you got the loan, you made one payment and defaulted on the entire loan?” Maline asked.
“Objection, relevance,” Imes said.
“Sustained,” Judge Smith ruled.
Michael McStay said he had made the representation of being the owner of Earth Inspired Products on the loan document with his brother’s understanding that he was going to do so and with his brother’s permission.
“You said Joseph was aware of this?” Maline asked.
“I believe so,” McStay said. “I wouldn’t have signed for something unless I talked to him first. Plus his address was on the paper, as well.”
“Do you recall how you would have gotten him to do that?” Maline asked.
“I would have talked to my brother,” Michael McStay said.
“Do you remember when you did that?” Maline asked.
“Before I would have signed it, I assume,” Michael said.
“Do you have a specific recollection of telling him?” Maline asked.
“I know we talked about it, but I don’t recall, honestly,” McStay said.
“When you made that statement that you were the owner of Earth Inspired Products that was not true, was it?” Maline asked.
Michael McStay said “I am not the owner, no.”
“Were you aware when you signed the application to the bank, it was under the penalty of perjury?” Maline asked.
“Objection, argumentative,” Imes said.
“Overruled,” Judge Smith said.
“I don’t know,” Michael said. “Is it? You would know. I wouldn’t know.”
Maline had him read a specific portion of the loan document.
“I’m going to assume so,” McStay said. “It’s hard to read.”
“You knew you were making a misrepresentation to the bank, correct? Maline pressed.
“I guess so,” said Michael McStay.
Having progressed to that point, Maline sought to escalate, using the loan Michael McStay obtained through a misrepresentation as to his ownership and control over Earth Inspired Products as the launching grounds.
“Now did something happen regarding the loan just prior to February 2010?” Maline asked.
That question, followed up with other references to the bank’s efforts in foreclosing upon his home in January 2010, were buried under an avalanche of objections from the prosecution that were sustained by Judge Smith. That, however, set up the succession of questions that followed, which built off of considerable previous trial testimony and the presentation of of evidence relating to the so-called Mitchley video, i.e., brief footage from two security cameras, one on the porch and another on the side yard of Jennifer Mitchley’s home. Mitchley lived across the street and a door-and-a-half down from the McStay family in the 3400 block of Avocado Vista Lane in February 2010. That video, taken on the evening of February 4, 2010, shows a vehicle pulling onto the street from the direction of the McStay family home’s driveway which the prosecution maintains matches the characteristics of the work truck, a 2000 Chevrolet 3500 pickup truck augmented with metallic cargo and toolbox cabinets, that Merritt drove in 2010. That video establishes, the prosecution maintains, that Merritt was at the McStay home right around the time when the McStay family was last heard from in terms of telephone and computer usage, corresponding to when the prosecution theorizes the murders occurred.
After he reported to the San Diego Sheriff’s Department that his brother and his brother’s family were missing and had an initial interaction with then-San Diego County Sheriff’s Deputy Michael Tingley, Michael McStay met with Detective Troy DuGal and Dugal’s partner, Detective Suzanne Fiske to provide them with information to aid them in pursuing what was then considered to be a multiple missing persons case.
In the course of his exchange with DuGal and Fiske as well as with Tingley, Michael McStay indicated he had driven by his brother’s house on either February 4 or February 6, according to San Diego Sheriff’s Department reports. Subsequently, Michael McStay indicated that the first time he had actually been to his brother’s home was on February 13, 2010, and that he did not know where it was and had to meet Merritt nearby and follow him to the home because he could not have found it on his own.
Against that backdrop, Maline questioned Michael McStay about whether it was in fact his 2007 3500 Chevrolet truck, which had also been augmented with metallic tool chest cabinets, that was seen on the Mitchley video.
“Do you recall telling Deputy Tingley you drove past your brother’s house on February 4th or the 6th of 2010?” Maline asked.
“I’m not sure if they [the San Diego County Sheriff’s Department investigative team] got that right,” responded McStay, saying he was not certain of whether his reference had been to “if it was I drove past or we had been talking about McGyver going down to do the painting during that week, so I’m really not sure.”
McGyver McCarber was a friend of both Joseph McStay and Summer McStay, who had been at the McStay family’s home twice the first week of February 2010 to assist Joseph and Summer with painting that the couple was engaged in as part of renovations to the home at 3473 Avocado Vista Lane, which the McStay family had moved into in November 2009.
“When you drove past your brother’s house, we’re you going to tell him about what was just about to happen with this loan?” Maline asked.
“Objection, relevance, lacks foundation, and assumes facts not in evidence,” protested Imes.
“Objection sustained as lacks foundation and relevance,” ruled Judge Smith.
“Did you go down to Fallbrook, your brother’s home, in February 2010 and seek to talk to him about this loan?” Maline asked.
“Objection,” Imes said. “Relevance, due to the court’s previous rulings, lacks foundation and vague as to time.”
“Overruled,” said Judge Smith. “He can answer.”
When Michael McStay asked Maline to repeat the question, Maline did so and Imes renewed his objection, whereupon Judge Smith sustained the objection on the grounds that it assumed facts not in evidence.
“Did you go to your brother’s home at the beginning of 2010 to talk to your brother about this loan?” Maline asked.
“This loan wasn’t even on the radar,” Michael McStay responded. “I have no idea why you’re asking this question. I didn’t talk to him about this loan or anything about that or whatever you are implying.”
“Did something happen regarding this loan, at the beginning of 2010?” Maline asked.
“Objection, relevance,” Imes said, and requested to approach the bench. Thereupon a sidebar out of the earshot of the jury and the courtroom’s observers involving Judge Smith and both the prosecutors and defense attorneys took place. Upon its conclusion, Judge Smith said, “The objection is sustained on both relevancy grounds and Evidence Code 352, and lack of foundation.”
“In February of 2010, did you own a utility truck?” Maline asked.
“Yes, I did,” Michael responded.
“Did you own a white utility truck in 2010?” Maline asked once more after he had shown the witness a photograph of a vehicle which McStay said was not a photo of his truck.
“Yes,” said Michael McStay. “I owned a white Chevrolet 2007 3500HD.”
When Maline said McStay’s vehicle was “the exact same model as Chase’s truck,” Michael said, “No, it’s not. His is a single axle. Mine is a double axle. I had a dually.”
“Your truck was a 3500, correct?” Maline asked.
“Yeah, with an eleven foot bed,” Michael said. “It was much bigger than Chase’s.”
“White?” inquired Maline.
“All white, yes, sir,” said McStay.
“And it had a utility bed on it, as well,” Maline said.
“A Harvard bed, yes,” said Michael McStay.
“What year was it?” Maline asked.
“Mine was a 2007,” Michael said. “I bought it at the end of ‘07.”
“You know the model of Chase’s truck was a 3500, correct?” asked Maline.
“I don’t know what his was, no,” said McStay. “I just remember it looked like an SBC truck. It appeared to be an old fleet truck with white and gray.”
After Maline sought to have Michael McStay compare the taillights on his truck to those on Merritt’s, sustained objections by Imes were made.
“But you had a 3500, and you knew that Chase’s truck was a 3500, right?” Maline said.
“I did not,” Michael said. “I don’t know what his was.”
“Did you see the video – the neighbor’s surveillance video – it’s called the Mitchley video – we watched in court here?” Maline asked.
“I did, yes,” responded Michael McStay.
“Is that your truck?” Maline asked.
“Is what my truck?” McStay reacted with a question.
“On the video,” said Maline.
“No,” said Michael. “That’s the fourth [of February, 2010].”
“You told deputy Tingley you drove by the house,” Maline said.
“That’s not my vehicle on the fourth,” Michael McStay said. “I was never there on the fourth. You could check my cell phone records and pings if you wanted to, to see where I was actually at. I wasn’t there.”
“Do you know if the detectives ever got your cell phone records?” Maline asked.
“You’d have to ask them,” McStay said. “I’m not sure, sir.”
“Did you give them your cell phone records?” Maline asked.
“I’m pretty sure they could get them if they wanted them,” Michael responded.
“In the beginning of 2010,” Maline asked, “would you agree with me if I told you there was a lot of press coverage of your brother’s disappearance?’”
“Oh, yeah,” Michael said. “My phone would be fully charged at 7 a.m. in the morning and by 10 o’clock, from all of the phone calls, it would be dead and I’d have to recharge it.”
You made several statements to the press and to media outlets, correct?” Maline asked.
“I’m pretty sure I did, yes,” McStay said.
Maline then asked about a statement he made to Brittany Levine of the Orange County Register that was quoted in an article she wrote.
“Do you recall telling her on March 26, 2010, ‘My fear is that I’m looking for two adult shallow graves and…my two nephews’ crosses’?” Maline asked.
“Objection, leading,” said Imes.
“Overruled,” said Judge Smith.
“I remember saying that, yes,” said Michael McStay.
“That was three years and nine months prior to your brother’s family being found in Victorville, the desert there, correct?” Maline asked.
“Can you restate that?” McStay said. “I’m getting confused.”
“When you made that statement to Brittany Levine in March of 2010, that was three years, eight months…” Maline began.
“Before they were found, right?” said Michael.
“Is that right?” Maline said.
“So is that your question that was my fear or did I make this?” McStay asked. “Which is the question? Because that was my fear, that I wasn’t looking for a missing person’s case, but rather possible homicide.”
“You were very specific; two adult shallow graves and looking at these crosses,” Maline said.
After requesting to read the quote and then doing so, Michael McStay said, “So, that would have been my fear. I made that statement.”
For most of his questioning by Maline, Michael McStay kept any hostility he felt toward the defendant in check, generally betraying no personal animosity against Merritt that might have perhaps signaled a bias which could undercut in the mind of some of the jurors the validity of his recollections and the value and weight of his testimony in support of the prosecution. On a few occasions Michael McStay even referred to Merritt by the familiar form of his first name, Chase, which conveyed an attitude if not of friendliness, then one of cordiality in which no malice was detectable. On two notable occasions during the questioning, however, perhaps brought on by the sometimes pointed and sometimes subtle insinuations Maline was engaged in, McStay bristled, and what might be his true attitude toward the man who is accused of killing his brother showed through.
One of those came as Maline was asking the witness about his contact with his father in February 2010, just as concern over his brother’s disappearance was transitioning into alarm.
“At some point in February 2010, you had contact with your father, Patrick,” Maline said.
“Yes,” said Michael.
“Sometime…” Maline began.
“Sometime the week of the ninth,” McStay said.
“Now, regarding your father, after you had contact with him, did you remain in contact with your father for the next, I would say, month regarding Joseph’s disappearance?” Maline inquired.
“Objection, relevance,” Imes interjected.
“Overruled,” Judge Smith said. “He can answer.”
“I’m pretty sure I did,” Michael said.
“Your father was in Texas at that time,” said Maline. “Is that correct?”
“My dad lives in Spring, yes,” Michael McStay said.
“Do you know if your father Patrick ever came to help you guys pass around fliers and that kind of stuff?” Maline asked.
“Objection, relevance,” Imes said.
“Sustained,” said Judge Smith.
“Did your father…” Maline began in seeking to reformulate the question, but was interrupted by Michael, who said, “Neither did Chase [deliver fliers].”
“I’m not asking about Chase,” said Maline.
“Oh, sorry,” said Michael McStay. “That was impertinent.”
At another point, when Maline was asking about how well acquainted he was with Merritt, Michael McStay offered, “When he refers to me as ‘Mikey,’ it’s because he talked to my brother. But he should really refer to me as ‘Michael,’ because he doesn’t know me.”
Having absorbed that sally against his client, Maline from that point sought to replicate what he had done with both Michael and Joseph McStay’s mother, Susan Blake, during her testimony two weeks previously, in wringing from her an admission that she had held Merritt in relatively high regard prior to his having been arrested and charged with her son’s murder, and that the negative light in which the defendant had been cast during both Blake and Michael McStay’s testimony under direct examination by the prosecution in the first week of the trial was a function more of their effort to assist the prosecution in obtaining a conviction of the accused than the far more favorable opinions they held of Merritt and which they expressed to investigators before they were influenced by the identification of Merritt as the defendant as well as the prosecution of the case against him.
“So, if he didn’t know you, would it be fair to say that [in] your talking about Chase and your describing Chase to the detectives, that the knowledge you had of Chase had come from your brother or mainly from your brother?” Maline asked.
“Yeah, probably from our conversations, my brother and my conversations,” Michael said.
“And do you recall telling Detective DuGal,” Maline asked, reading from DuGal’s report, “that ‘What I hear with Chase, because Chase seems like a very sweet individual, I trust that they’ve gotten really close…’’
“Objection,” Imes interrupted. “Leading. Assumes facts not in evidence. This is not cross examination.”
Thereafter Maline was thwarted by Imes’ objections, which were sustained by Judge Smith, from being able to read Michael McStay’s charitable characterizations of Merritt made to investigators with the San Diego Sheriff’s Department in the early stages of the investigation.
In bringing up the effort that was made to distribute fliers relating to the missing McStay family, Maline endeavored to get onto the record that Merritt had participated in doing so, which contradicted McStay’s assertion to the contrary. Maline asked where those fliers had been distributed.
“At San Ysidro, where the vehicle was found,” Michael McStay said.
“And other places, as well,” said Maline. “What about Fallbrook?”
“I believe, yeah, we did, San Ysidro and Fallbrook,” McStay said. “I don’t know if it was the same day or… I believe we did. We canvassed Fallbrook. We split up and went to different places, and we did San Ysidro, yes. I just don’t remember whether it was the same day, or whatever.”
“Do you recall at that time that Chase was given about 2,000 fliers to pass out?” Maline asked.
“Do I recall that?” Michael asked in return. “I don’t.”
“Do you know who was in charge of getting the fliers to people to pass out?” Maline asked.
“I did, because I had them donated from my printing company,” said McStay. “My printing company donated all of the fliers, all of the time, and I had boxes of them, and then we doled them out to, you know, people.”
“If somebody wanted to get fliers, would they come pick them up, or would you actually have to give them to them?” Maline asked.
“I think both,” said Michael. “I believe at different times Chase might have been given some. I really don’t recall.”
Maline again sought to return to Michael McStay having once held the defendant in positive regard.
“Do you know how you described Chase to the detectives?” Maline asked.
“Objection, relevance,” said Imes. “Lacks foundation.”
“Sustained as lack of foundation,” ruled Judge Smith. “Calls for hearsay.”
In response to several of Maline’s questions, Michael McStay acknowledged having a strained relationship with Summer McStay because “she made a comment to my wife at the time about my children. Every family has squabbles,” he said.
After being alerted to his brother’s absence on either February 9 or 10, 2010, Michael testified, “I called and left messages on my brother’s phone until it stopped taking them.”
Maline’s efforts to ascertain Michael McStay’s whereabouts on February 4, 2010 based on having him look at his cell phone records proved ineffective because the witness was unable to interpret the data contained therein relating to the tower locations that were in contact with his cellphone while it was in use.
During Imes’ cross examination, he invited the victim’s brother to hold forth on what he was quoted as having said to the press.
“The media never gets anything straight,” McStay lamented. “They made so many mistakes through this thing it’s ridiculous. To be misquoted – it happens all the time.”
Sensing an opportunity, Imes focused on the specifics in Michael McStay’s quote that appeared in the article Brittany Levin had penned which ran in the Orange County Register in March 2010, specifically his reference to his fear that the bodies of his brother and sister-in-law were interred in, with what turned out to be remarkable precision, two shallow graves. Imes asked, “Isn’t the worst fear that they died a humiliating death and were buried in shallow graves in the middle of nowhere six miles from the defendant’s sister’s house?” When that brought an objection from Merritt’s co-counsel James McGee that was sustained by Judge Smith, Imes pointedly asked, once more, “Would that be a fear that they were found six miles from the defendant’s sister’s house?”
The question was again objected to and Judge Smith sustained the objection.
Imes took up the issue of Michael McStay having indicated that he had driven by the McStay family’s Fallbrook home on February 4 or 6, 2010.
“What was your state of mind on the 15th [of February, 2010] when you talked to Deputy Tingley?” Imes inquired.
“I was concerned that was the drop dead date,” said Michael. “I met Chase on the 13th. It was urgent enough for me to leave my job in Huntington Beach and go straight there and do whatever needed to be done.”
“Were you able to remember every singe date and every single step you took up to that point?” Imes asked.
“No, sir,” said McStay. “I’m just going off my best recollection.“
“You tried to be as accurate with dates as possible but your memory in the emotion of it was not as accurate as it could have been,” said Imes.
“Yes, sir,” Michael said. “I did the best I could.”
“So if you had told Deputy Tingley that you had been by on the fourth or the sixth, what is your recollection of that sitting here today?” Imes asked.
“I’m not sure if… I think that… I didn’t go… I must not have went by, but I had known that McGyver… I remember that McGyver [McCarber, a friend of Joseph and Summer] was going by to paint that week, so I don’t know if it was misconveyed or what, but as I remember, the first day I was there was that Saturday.”
“Saturday the 13th [of February, 2010],” said Imes in clarification.
“Yes, sir,” said Michael McStay.
“Well, why don’t we point out the elephant in the room,” said Imes. “Did you kill your brother?”
“Absolutely not,” McStay responded. “No way.”
‘Were you insulted with that implication of questioning?” Imes asked.
“Objection, Your Honor, argumentative,” said McGee
“Overruled,” said Judge Smith.
“There’s an implication that we said he killed his brother,” McGee persisted. “This is now attacking counsel. It’s improper questioning.”
“The objection’s overruled,” Smith said.
“Yes I was,” Michael said. “It’s just more mudslinging by the defense.”
“You were the one who called the police to report your brother missing, correct?” asked Imes.
“I believe so,” Michael McStay said. “Yes, sir.”
“Are you aware of the defendant ever calling the police to report your brother missing?” Imes asked.
“Objection, foundation,” intoned McGee.
“Sustained,” Judge Smith said.
“You were the one sitting in front of the house being interviewed,” said Imes. “Did they have to look for you to do that interview?”
“No, sir,” McStay said. “I voluntarily went there. I voluntarily gave DNA. I voluntarily took polygraph tests. I did whatever I could do.”
“Did you write any checks to yourself and backdate them to February 4th and deposit them into your personal account?” Imes asked.
“Your Honor, objection, argumentative and outside the scope now,” said McGee.
“Overruled,” Judge Smith said.
“No, sir,” answered Michael. “I did not.”
“Were you in the High Desert on February 6?” Imes asked.
“No, sir,” said Michael McStay.
After court concluded that day, Maline told the Sentinel his rough cross examination of Michael McStay was not intended to seriously suggest that Michael McStay had murdered his brother and his brother’s family, but rather to illustrate to the jury that circumstances can be twisted to make outrageous suggestions as to guilt and culpability, as was being done by the prosecution to his client.
Testifying on Wednesday as well was San Bernardino County Sheriff’s Department Sergeant Ryan Smith, the last case officer assigned to the McStay family homicides investigation and the current sheriff’s department liaison to the district attorney’s office during the trial. Smith has testified at several junctures previously during the trial as a prosecution witness.
Merritt’s defense co-counsel James McGee called Sergeant Smith to the stand, querying as to whether Smith had engaged in the investigation of vehicle thefts at an earlier point in his career before he moved into the homicide division.
Smith acknowledged that he had.
McGee then asked about the methodologies employed by car thieves against vehicles’ ignition systems to effectuate those thefts. Smith related that more recent model vehicles feature security systems that present a greater challenge for a thief to defeat but that in older vehicles shaved keys or even screw drivers can be used to actuate the ignition or that the key mechanism can be bypassed altogether through hot-wiring, and that steering wheel locking mechanisms in older vehicles can be overcome as well.
“There are many ways to drive a vehicle without a key,” Sergeant Smith said. Such manipulations, Smith indicated, result in significant damage to the features of the ignition and steering wheel or steering column that are easily obvious or detectable.
McGee then asked about the key to the McStay family’s 1996 Isuzu Trooper found among the keys in the pocket of the pants Joseph McStay was clad in when his body was unearthed from the shallow grave in the desert north of Victorville.
To McGee’s inquiry, Sergeant Smith indicated that after the trial was underway earlier this year, he had checked that key out from the department’s evidence locker, signing for it himself, and then used it to determine that it fit the vehicle and would activate the car’s ignition.
The Isuzu Trooper’s ignition and steering column was intact, Sergeant Smith testified under McGee’s questioning, an indication the car had not been hot-wired, but that rather a key had been used to start the vehicle when it was driven to the mall parking lot and abandoned near the border in San Ysidro.
McGee’s purpose in questioning Sergeant Smith on this topic was to establish that there is a possibility or even a likelihood that the Isuzu Trooper was driven to San Ysidro not by Merritt but by Joseph McStay.
Testifying on Thursday was Suzanna Ryan, a forensic DNA consultant, who has multiple certifications with regard to DNA forensic analysis and serology. Ryan previously worked as a forensic technician and criminalist in crime laboratories with several law enforcement agencies, then subsequently as a crime laboratory and forensic laboratory manager, including with Bode Cellmark Forensics, Inc., Bode Technologies, Cybergenetics, Pure Gold, and her own company and laboratory, Ryan Consulting. Her work has included identifying bodies extracted from the rubble of the September 11, 2001 attack on the World Trade Center in New York City and from mass graves in Bosnia using DNA analysis, as well as both obtaining and maintaining accreditation and licensing for laboratories.
Ryan testified about the methods utilized for the harvesting of DNA from objects. A primary traditional approach, she said, involves sterilized cotton swabs that are either moistened with sterilized water or left dry and then utilized to wipe the surfaces of objects that might contain metabolic matter to effect collection. Another method, she said, entailed cutting a piece of fabric or clothing that may have come into contact with an individual’s skin or bodily fluids.
She then gave a demonstration of a more up-to-date technology for DNA collection, consisting of what is referred to as an M-Vac. An M-Vac entails what is essentially a vacuum unit augmented with a hose, a line, a vacuum head, a containing unit and a filter. To prevent contamination the hose, line, vacuum head, containing unit and filter, all of which are sterile, all are changed out with each use, she said. The line is used to spray sterile water onto the item from which the DNA collection effort is being made, she said, explaining that the water serves as a buffer that will assist in liberating the DNA-containing material. That wet solution is then vacuumed into the container which features the filter that will allow water molecules to pass through it but which is fine enough to collect the DNA. Upon drying, the filter is then subject to DNA analysis.
Ryan testified that traditional swabbing is relatively effective when it is applied to smooth surfaces, but much less efficient in terms of the useful yield of DNA-bearing material when it is applied to porous materials. She said that in such cases the M-Vac has been demonstrated to provide “20 times to 200 times more DNA than is collected by a swab.”
Ryan testified that she had utilized the M-Vac on several items contained within the two graves the McStay family had been buried in. Previously, a criminalist employed by San Bernardino County Sheriff’s Department, Donald Jones, who had testified as a prosecution witness, said that it was his opinion that DNA material adequate for forensic analysis that would assist the investigation would not remain intact over the three-and-a-half year period that the items lay buried in the grave before the bodies were discovered in November 2013. He testified that the tests he conducted on those items yielded no useful results.
Ryan testified that she used the M-Vac on a pair of panties found in the grave containing the remains of Summer McStay and Gianni McStay, a half of a bra found in the grave containing Summer McStay’s and Gianni McStay’s corpses, the other half of that bra found outside the graves, an electrical cord that was used to bind Joseph McStay in the separate grave in which his body was interred with that of Joseph, Jr. and a red strap found in the grave containing Joseph Sr.’s and Joseph Jr.’s corpses.
In the case of each item, Ryan testified that she had employed the M-Vac and then, after allowing the filter utilized in each case to dry, cut out a portion of the filters, packaged them separately, and sent them off to the Bode Cellmark laboratory on March 9, 2018 for analysis.
Ryan said that Bode Cellmark found partial DNA profiles on four of the items, including both halves of the bra, the electrical cord and the red strap.
“And you learned from the results that some of the items, just from Bode, had DNA markers on them,” McGee said.
“Right,” Ryan said. “Some of the samples that Bode tested, they were able to report a partial profile or mixture. There was some DNA types that did reach their analytical threshold.”
Of significance is that the DNA analysis indicates that three individuals – all males – contributed the DNA that was found on the items in the graves and the half bra found outside the graves. Those DNA profiles do not match Joseph McStay, Gianni McStay, Joseph McStay, Jr. or Charles Merritt.
It is anticipated that the prosecution might suggest that the DNA found on those items could have been contributed by three of the sheriff’s department personnel who were involved in the excavation of the graves. This, however, is controverted by the consideration that there is some crossover with regard to the DNA found on items from both graves, and that in processing the graves, the sheriff’s department assigned different personnel to carry out the excavation of each grave, and kept those personnel separate throughout the processing such that only those individuals assigned to each grave, all of whom were wearing gloves, had contact with the contents of their particularly assigned grave. Additionally, the degradation of the DNA that was found is consistent with having been buried in the earth or exposed to the elements for three-and-a-half years. DNA that would have originated with the excavation team would not have been subject to that level of degradation. The defense maintains that the DNA found on the four items is connected to the actual killers of the McStay family.
Under direct examination by McGee, Ryan testified with regard to the DNA found in the Isuzu Trooper. Ryan testified that the consideration that Joseph McStay was the major contributor of the DNA found on the steering wheel and gear shift of the vehicle and that Charles Merritt was a trace DNA contributor on the same items, with Merritt’s DNA being present in a far greater quantity on the vehicle’s passenger side interior door handle, was an indication that Merritt was a passenger in the Isuzu and not the driver.
She said it was unlikely that Merritt had driven the vehicle from the McStay home in Fallbrook and left it at the parking lot in San Ysidro, where it was impounded on February 8, 2010.
“If someone drove a car for 90 minutes, the expectation would be that they would be the major contributor,” Ryan said.
She referenced experiments indicating that the last individual to handle nonporous items such as a pen and a steering wheel are likely to displace the normal user of those items as the primary or major contributor of the DNA found on those items once they are subjected to an analysis.
She also testified that trace amounts of DNA can be transferred to items the contributor of that DNA has not actually handled as a consequence of the person who directly handled the item in question having touched or been in contact with the trace DNA contributor.
Ryan testified that the presence of Merritt’s DNA in the Isuzu Trooper in minute quantities could reasonably be considered an instance of DNA transfer throughout the vehicle.
After McGee’s direct examination of Ryan ended, Supervising Deputy District Attorney Sean Daugherty began his cross examination of the witness, a session which lasted for less than 20 minutes and which is to be continued on Monday April 8.
One of the issues Daugherty latched onto was how Ryan, in one of her reports on the analysis of the forensic examination of the McStay family’s Isuzu Trooper, had conflated the San Diego County Sheriff’s Department forensic analyst who had gathered evidence from the vehicle, Denys Williams, with the forensic analyst from the San Bernardino County Sheriff’s Department’s crime lab, Heatherly Rateleff, who had gathered evidence from the vehicle as part of her department’s investigation more than three-and-a-half years later.
By Mark Gutglueck