By Mark Gutglueck
The attorneys in the McStay family murder trial had their final say this week, with Supervising Deputy District Attorney Britt Imes offering the prosecution’s closing argument on Tuesday, followed by Charles Merritt’s co-counsel James McGee later that day and into Wednesday morning, augmented by Merritt’s co-counsel Raj Maline later that day, and then Deputy District Attorney Melissa Rodriguez providing the prosecution’s rebuttal late Wednesday and Thursday morning. The case then went to the jury.
Charles “Chase” Merritt was the primary independent contractor employed by Joseph McStay in his enterprise, Earth Inspired Products, which was engaged in the provision of water fixtures to its clientele. In addition to purchasing premanufactured water fountains and artificial waterfalls which he would then send to some of his customers, McStay employed Merritt in the construction of custom-made high end artificial waterfalls. Prosecutors allege that after McStay learned in early February 2010 that Merritt was embezzling from the company, Merritt came to McStay’s Fallbrook home on the evening of February 4, 2010 and slaughtered the entire family – Joseph McStay, his wife Summer and their two sons, four-year-old Gianni and three-year-old Joseph, Jr. – using a sledgehammer to bash their skulls in. He then abandoned the family vehicle, a 1996 Isuzu Trooper, in San Ysidro near the Mexican border and buried his victims in two shallow graves in the desert area north of Victorville and south of Oro Grande, where they were discovered in November 2013. Merritt was arrested and charged with the killings a year later. He has remained in custody ever since.
The lead prosecutor on the case, Supervising Deputy District Attorney Britt Imes, told the jury, “Ladies and gentlemen, what this case tells you, it shows you, is four counts of first degree murder. There is no other reasonable conclusion to the evidence.”
In order to get a conviction, Imes said, the law “does not require us to prove where” the murders took place. “It does not require us to prove when and it does not require us to prove how. You can have a murder case without answering those questions.”
Merritt is guilty, Imes insisted. “Despite whatever precipitated the killing of who went first, whether it was an argument with Joseph over finances, whether it was Summer because of hatred over how he was treated and the disagreements they had over raising kids, the fact that he thought she was a bitch, whatever precipitated the first killing ultimately won’t matter. What will matter is [Merritt] then intentionally killed three others. He could have stopped. You don’t need to kill Summer and those two kids. You don’t need to kill those two kids unless you know that they can identify who the killer is. The killing of Summer and those kids and Joe was senseless. It was violent, violent with the use of a heavy object, similar to the sledgehammer found in the grave with Summer.”
Imes described “blow after blow to a child’s skull, to a three- and a four-year-old. That is an intentional killing. That is willful, deliberate and premeditated when you kill a three- and -four-year-old who know who you are.”
Imes said, “The murders were perpetrated by this man, Charles Merritt, motivated by greed and self-interest. Everything about this case from the defense perspective, greed and self interest just permeated it, from the expert witnesses to the defense documentary team to Cathy Jarvis looking to benefit from his acquittal or even the defendant[’s] benefit. That greed and self-interest motivated a man to kill a family of four and take them from this earth. He was a man with a means, a motive and an opportunity.”
Imes said the jury could not took at the facts in isolation but had to consider them in their totality.
“You cannot look at those facts in isolation,” Imes said. “One fact and how it is interpreted and what it means can be dictated by other pieces of evidence. You cannot isolate an individual fact just to say the person is presumed innocent.”
Imes provided his recap of the case. In it he referenced Dan Kavanaugh, another of Joseph McStay’s business associates the defense has suggested was the actual murderer of the McStay family. Imes said Earth Inspired Products’ “internet website was optimized by Dan Kavanaugh and really run by Dan Kavanaugh. Dan Kavanaugh continued to run that business even after the murder of the McStays, with shipments to Adagio and other water feature companies.”
Part of the motive for the killings was that Joseph McStay was phasing Merritt out of the operation.
“The defendant was being sidelined,” Imes said. “Joseph was looking for other fabricators and welders-type people to do the work.”
Another factor in the killings was that Merritt had an intense dislike for Summer McStay, Imes said. Imes referenced the testimony of McGyver McCargar, a mutual friend of Joseph and Summer who had introduced the couple.
“He [McCargar] told you basically Summer did not like the defendant, that there clearly was some animosity between the two of them,” Imes said.
Imes claimed that an email that was sent from Joseph McStay to Merritt on February 1 in which McStay outlined that Merritt had been overpaid $15,045 on recent or ongoing jobs precipitated the murder. The email also referenced two jobs, one done for a customer named Levine and another for Provecho restaurant, which testimony and evidence presented during the trial indicated had been canceled by the customers at a total loss to the company, with Merritt and Joseph McStay having agreed to split the cost of. Those cancellations represented a loss of $8,800 on the Levine waterfall and $19,000 on the Provecho waterfall. A total of $42,845 is indicated on the email, a tally of the overpayments and the losses, which Imes said represented the amount of money Merritt was in arrears to McStay.
Imes displayed the email on the courtroom’s overhead visual displays, and told the the jury it should interpret the email as a demand for payment.
“What would those events do to a person’s state mind?” Imes said. “What state of mind would someone be in after receiving an email from your purported boss that says ‘You owe me $42,845’?” Imes asked. “Most reasonable people, if they got a bill like that, would be pretty astonished. Chin would hit the floor. ‘I owe how much?’’
McStay had two QuickBooks accounts from at least as early as 2007, which were dedicated to activity involving Earth Inspired Products. One of those, associated with the email address email@example.com, had over the years been used for almost all of the money flowing into and out of Earth Inspired Products. The other QuickBooks account, associated with the email address firstname.lastname@example.org had lain dormant.
Imes referenced the adding of Charles Merritt and Metro Sheet Metal as vendors to McStay’s heretofore inactive custom QuickBooks account that took place in late January 2010 and the activity that then took place within that system in the days just before, the day of, and the few days after the McStays’ disappearance. Shortly after the addition of the two vendors to that custom account, on February 1, 2010, two separate checks were written to Merritt using the lower case in the payee line, each for $2,500, and then deleted. “However, there’s no computer activity on the McStay computers that were recovered that would show that this activity actually occurred,” Imes said. Deletion of the checks he wrote, Imes said, was “a habit and custom that did not exist for Joseph.”
Imes then referenced February 2, on which Imes said a series of QuickBooks activities between 11:27 am and 11:37 am occurred. Present at the McStay home that day was McGyver McGargar, who was there to assist with interior painting so that element of the home renovation could be completed prior to the installation of new flooring that was scheduled to occur later that week. At that point, Imes stated there was “no indication the defendant was there on the second [February 2],” which in actuality was contradicted by the presentation of evidence by the prosecution and the testimony of the prosecution’s own witnesses, including McCargar and FBI agent Kevin Boles. During that QuickBooks activity, Imes said, another check, this one for $2,495 to Merritt using all lower case in the payee line was generated and then deleted. This, too, was a forgery, Imes asserted.
Imes again emphasized that “There was no computer activity on the McStay computers that were recovered from the residence.” He made no reference to Joseph McStay’s laptop that disappeared with the family.
“Why would Joe write two checks to the defendant on the same day, one handwritten, one computer generated?” Imes asked rhetorically. The handwritten check to Merritt was for $100 and used as a first deposit by Merritt to open a bank account, Imes said. That check was legitimate, Imes said. The other, larger check was a forgery, he suggested. The signatures on the checks did not match, Imes said. “If Joe was printing checks to the defendant, why didn’t he print the $100 check?” Imes asked. “If Joe was printing a check to the defendant for $2,400, why didn’t he just include the $100 to open an account? Why would only one be handwritten? Why would the printed check be in lowercase for a vendor that was just added on an account, an account that you heard Joe never wrote a check from, ever, until February 1, despite those QuickBooks accounts existing for years? Why is there no computer activity showing the creation of the printed checks? Why are the signatures different?”
Imes said that with many of the events considered in isolation “maybe there was an innocent explanation …that standing alone would point to innocence. However, when you put it all into context and answer all of those questions about all of the attendant circumstances on February First and Second, is that now a reasonable interpretation of that check? No. Why would those signatures be different? Better yet, why would they be written and deleted? All of those attendant circumstances, including the deletion, point to it now being evidence of guilt, because that’s the only reasonable interpretation.”
Imes characterized February 4, 2010 as a “flurry of phone activity,” including calls made by Joseph McStay to his bank, which he first said was a unique occurrence and later corrected to say was a very rare one, and he surmised for the jury that the call pertained to the checks written to Merritt on February 1 and 2, and that this represented McStay’s discovery and confirmation of Merritt having written fraudulent checks against the Earth Inspired Products account. “There’s a lot of phone calls in the morning between Joseph and the defendant back and forth, but ultimately what is important is this 11:51 call to Union Bank of California where Joseph had his bank account.” Imes displayed on the courtroom’s overhead visual monitors a timeline showing a call from McStay to the bank at 11:51 am, followed by a call to Merritt at l1:53 am, and then a call back to the bank at 12:15 pm.
“So, all of a sudden, Joseph has to call his bank,” Imes said. “We have no direct evidence as to what transpired, but think about the attendant circumstances. You have now two checks written to the defendant, one that’s been negotiated. They’ve been deleted from his QuickBooks account.”
Thereafter, according to Imes, Joseph McStay is accessing the internet from his phone. At 12:52 McStay’s phone records show, Imes pointed out, Joseph McStay phoned Merritt, apparently not getting through and the same minute called Walker Welding. The call to Walker Welding, Imes suggested, was to find another fabricator for the water features.
That afternoon, Imes said “The defendant is engaging in 19 phone calls back and forth with Catherine Jarvis [Merritt’s common law wife and the mother of his three children]. By this, Imes suggested that Merritt was in a panic over having lost his employment as a contractor with Earth Inspired Products.
Imes in this portion of his statement downplayed and seemed to outright dismiss evidence and testimony at trial indicting that McStay and Merritt had a nearly two-hour meeting at the Chick-fil-A fast food restaurant not too far from Merritt’s home in Rancho Cucamonga that afternoon, which is supported by both Merritt’s and McStay’s cell phone records, showing both of them making phone calls which were pinging off of nearby cell phone towers during the time Merritt told San Diego County sheriff’s detectives in 2010 and San Bernardino County Sheriff’s detectives in 2014 that meeting took place. “There is no credible evidence of a meeting,” Imes said. “Remember this theory that’s being put forth by the defense that Joe and the defendant met on the Fourth [of February, 2010]. What is the only evidence that you’ve heard that that allegedly happened? The defendant’s statement, a defendant who’s motivated by greed and self-interest, a defendant who is, after the fact on February 17  knowing what he did on the fourth, telling an investigator the events of the fourth, knowing that they would be important because that’s when they went missing, because he knows that.”
It was apparent that no meeting at the Chick-Fill-A took place, Imes said, because “You have no credit card activity. You don’t show any activity in the defendant’s bank account or Joe’s account swiping for lunch at Chick-fil-A. There’s no surveillance video. There’s no independent witnesses that came in and testified. ‘Yep, I saw them there.’ You don’t find a receipt in the Trooper or the truck [i.e., Merritt’s truck]. The only thing you can rely upon to make that conclusion is the self-interested statement of the defendant.”
Imes said the 19 calls to Jarvis by Merritt and Joseph McStay’s constant surfing on the web in those afternoon hours make it unlikely that the two were engaged in a two-hour meeting with one another as Merritt claimed. If there was a meeting, Imes said, it was brief and to the point.
“Look at that alleged meeting in context,” Imes said. “There’s another interpretation to this, that that meeting occurred somewhere in this last 30 minutes of that afternoon, and that meeting was very quick, and that meeting was, ‘I know you forged checks. I know you cashed that $2,500 check. I am done with you. I was already of the mindset of sidelining you and looking for other fabricators. I had already moved business to Metro Sheet Metal. I’ve already called Walker Welding, and now the straw that breaks the camel’s back is you violated our friendship and our business relationship. You wrote checks from my QuickBooks account. You cashed them. You owe me $42,000 because of your mess-up on the Levine and Provecho disasters.’ That is a reasonable inference and conclusion that could be drawn from all of the evidence you’ve seen up to the fourth. It’s circumstantial, sure. Six of you could believe there was never a meeting based on that evidence. Six of you could believe some other interpretation that there was a meeting and that it was very short-lived in this time period. Those are all reasonable conclusions to be drawn. Either way, they point towards the defendant, not towards innocence. They point towards the defendant in trouble. They point towards the defendant’s state of mind that he owes $42,000; ‘I’ve been caught cashing a check that I wasn’t given properly and I forged, and now I’m in a meeting with my boss.’ Either way, it points to the defendant. Why would Joe go to Rancho and give checks to the defendant, if you want to believe that, when the defendant was in Fallbrook the previous days and was even given a handwritten check?”
Joseph was not the usual driver of the Trooper, Imes said, as it contained the car seats for the two children and was used primarily by Summer McStay. He said Merritt’s representation to San Diego County Sheriff’s Department detectives Troy DuGal and Suzanne Fiske, who interviewed him on February 17, 2010 in connection with a missing persons investigation into the family’s inexplicable disappearance, that Joseph had driven the Trooper to Rancho Cucamonga on February 4, 2010 was “self serving” and the manifestation of “a guilty conscience.”
Imes came on to what he called “a crucial piece” of the puzzle that upon full assembly, he said, implicates Merritt. “The crucial piece is the last activity of human contact that Joseph allegedly had with anyone on the face of this earth at 5:48 pm,” Imes said. “It was at that time there was a phone call between Joe and the defendant. No idea what that conversation entailed. We know how long it was. What’s also important is at that point, the defendant goes off the grid. The defendant doesn’t just go off the grid. The defendant’s cellphone activity disappears. That is consistent with that phone being in airplane mode or powered off or being out of signal range. The only reasonable interpretation is that phone is powered off or in airplane mode. This is not bad cell reception. The defense is going to try to argue to you, ‘Oh, these were missed calls. These were dropped calls. Remember all of this bad cell reception.’ That’s not what that is. That is a phone that is off and every call being directed to voicemail. That is three-and-half hours or more of opportunity for the defendant to go to Fallbrook, confront Joseph over this $42,000 debt, being sidelined in favor of Metro Sheet Metal and others, more than enough time to get to Fallbrook to confront Joseph. During that time also, other activity occurs. Again, someone accesses the QuickBooks account and writes again another check to Charles Merritt, the lowercase account, it’s attempted to be printed and deleted. You heard evidence it got caught up in the print spool and didn’t print. But it happened. You also know there was internet activity or computer activity that was consistent with that on the computer in the house, the eMachine. So, we know what happened in that house during the time the defendant is off the grid. During that time, Cathy Jarvis is trying to repeatedly call the defendant and figure out where he’s at. We also know during that time period that a vehicle is seen leaving in front of the Mitchley house from what appears to be the McStay house.”
Imes’ reference to the Mitchley house is that of Jennifer Mitchley, who lived across the street and slightly up from the McStays in the 3400 block of Avocado Vista Lane in Fallbrook. Mitchley had a security system which included security cameras. Images of a vehicle, which the prosecution insists is consistent with Merritt’s 2000 Chevrolet 3500 utility truck conversion.
“That all occurs in this off-the-grid period,” Imes said. “The next time the defendant is located and has contact with other human beings is at 9:32 pm, and his phone pings on a tower south of State Route 60 and east of Interstate 15. Convenient. Could it be a flyer, as was implied by defense in the cross examination of Mr. Boles? Possibly. And that isolated fact could be the reasonable interpretation. But you can isolate that fact out to say ‘Oh, innocence.’ You have to look at it in context. You have to look at it in context that the defendant has a strong history of hitting those three towers around the Church Street address over and over and over and over again, even up to the 5:48 call, never flying off of this tower. All of a sudden he’s off the grid for three-and-a-half hours. The next time he hits the grid, he’s not off of the towers near his home. He’s south of town. He’s south of the 10 [Freeway]. He’s south of the 60 [Freeway]. There is no evidence this is a flyer when taken into context with the totality of the defendant’s phone activity, the totality of his locations when he hits towers and in context with the fact that he was just off the grid for three-and-a-half hours.”
Imes’ use of the term “flyer” refers to a cellphone signal that does not contact the nearest tower but “flies” a considerable distance to a far-removed tower, usually because that tower is at a higher elevation than any intervening towers and without any signal-interfering obstructions. The Mr. Boles he referenced was FBI Agent Kevin Boles, who testified as a prosecution expert witness with regard to cellular phone communications.
Imes said the vehicle seen in the Mitchley video shared characteristics of the truck Merritt was driving at the time, including what could have been an electrical plug-in box on the front bumper of the vehicle, shadowing at the back of the vehicle cast by the combination of the taillights and the back bumper and the low-hanging rear tailpipe. Imes extolled the expertise of Eugenio Liscio, an expert witness the prosecution retained in March after the prosecution’s original expert witness, Leonid Rudin, said he found the vehicle depicted in the Mitchley security video inconsistent with Merritt’s truck.
Imes said of Liscio, an authority on three-dimensional forensic reconstruction and an instructor at the University of Toronto and the president of the International Association of Forensic and Security Metrology, “He walked you visually through every step of his modeling to show you how he created it, how he made measurements, how he outlined certain shadows to show the consistency of his work step by step.”
Imes moved to head off the defense’s suggestions that because running lights cannot be seen beneath the headlights of the vehicle in the Mitchley video that it cannot be Merritt’s truck. The headlights in the Mitchley video were “pixelated and washed out,” Imes said. “The context to analyze the Mitchley video is one that takes into consideration it’s at night, it’s from a distance because it’s in black and white and because of the quality of the camera everything gets washed out on the front end, it’s hard to see, can’t even see the direct headlights and how it is then analyzed both using a 3D model overlay situation and finding points of comparison that line up with and are consistent with it being the defendant’s truck.”
Imes sought to discredit Rudin, who was consulting with the prosecution during the first four years of its prosecution of Merritt and who is is widely regarded as one world’s leading forensic photogrammetrists, by saying, “He was upset that some other expert came in and did work and it wasn’t him, didn’t use his software, didn’t use his methods. He is so upset about it, he reaches out to the defense. He had an agenda to do a live reprojection, and it wasn’t done in the middle of trial. It was not done.”
Imes called Catherine Jarvis, “a failed alibi witness. Ultimately in the end she never told you he was at home or gave you any corroborative evidence to establish in fact the defendant was at home on February 4, despite her valiant efforts. It went from ‘He was home rock solid. I know he was home’ on direct examination with the defense to ‘Well, he must have been around.’ That doesn’t seem very credible from a witness that clearly has a bias. A witness who potentially profits off the defense documentary film if her story is believed and he’s acquitted. It went from ‘I saw he had three blank checks from Joseph’ to ‘Well, I don’t know. I didn’t see them,’ because she was coached by the defendant. Why does her testimony fall apart about the fourth [i.e., February 4, 2010]? Because she was coached by the defendant. A witness who has to be coached by the defendant to remember the most important day of a murderer’s life, shouldn’t have to be coached, especially when it’s a family member and a mother to his children and should be able to give us something more than ‘Well, maybe.’”
“When you take into context all the evidence from the fourth, those reasonable explanations [of innocence] go away and they turn to only reasonable explanations of guilt that the defendant killed a family of four because all of those facts about the fourth are not some random coincidence,” Imes said. “In order for you to believe the defendant was not there on the fourth and committing four willful, deliberate, premeditated murders, you have to ignore other evidence. You have to ignore the checks that were forged to the defendant and deleted from the QuickBooks account to a vendor that never existed before in that account. The only person to benefit from that was the defendant. You would also have to ignore the fact that Joe for the first time calls his bank and in relation to other evidence such as the check being deposited and negotiated. You would have to believe there was this alleged meeting, even though it’s inconsistent with them being together earlier, giving a handwritten check earlier, the fact that Joe spends the entire afternoon on the internet on his phone, the fact that during this alleged meeting the defendant is calling the mother of his children, Catherine Jarvis, 19 times. You would have to ignore the fact that his phone was off the grid for three-and-a-half hours. The defendant was off the grid. You would have to ignore the fact that his first human contact via cellphone is at 9:32 pm is not at home and is not on those towers he hit time after time after time after time and again over months when he was home. You would have to ignore the fact that those checks were written to the lowercase Charles Merritt and negotiated by the defendant into his account. You would also have to ignore the fact that those checks were deleted in an attempt to cover their tracks. You would have to ignore the fact that Mitchley heard some strange noise in her neighborhood causing her to turn on the lights to see what was going on. You would have to ignore this mysterious truck that just coincidentally has a series of unique characteristics consistent with the defendant’s truck is leaving the driveway right around the time that all of this happens. These are not random coincidences, ladies and gentlemen. They’re facts. They’re evidence. When you look at them in their totality, it shows that it was the defendant at the McStay house that night. Why? Because he owes $42,000. He forged checks. He’s being sidelined. He’s not gonna let that happen, because he’s a greedy, self-centered, self-interested man.”
Imes turned to February 5, 2010. “All around 12 pm to 12:39 pm, a series of QuickBooks activity occurs, a series of QuickBooks activity not on the McStay computers.”
Imes said checks, consisting of one for $4,500 to Charles Merritt, all in lower case with the memo Paul Mitchell, all in lower case, backdated to February 4; another for $1,600 to Metro Sheet Metal, all in lower case with the memo miscellaneous manufacturer, all in lower case, backdated to February 4; another for $250, to Metro Sheet Metal, all in lower case with the memo for copper, all in lower case letters, backdated to February 4; another for $2,350 to Charles Merritt, all in lower case with the memo sa lighting install 1001, all in lower case, backdated to February 4; and a last check for $6,505 to Charles Merritt, all in lower case with the memo with the memo balance of sa 1001, backdated to February 4 were all created, edited, printed and deleted using Joseph McStay’s QuickBooks account on February 5.
With regard to the $4,500 check, Imes said, “Why would Joseph backdate a check to the fourth if he did this on this mysterious Giuseppe laptop, that there’s no evidence of? Why would he delete it from his own QuickBooks records if he’s paying the defendant $4,500 for a Paul Mitchell job? Why would he backdate it to the fourth if he’s writing it on the fifth?”
Of the $2,350 and $6,505 checks, Imes, picking up on the “sa” notation in the memo lines on the checks and relating that to a large water fountain project intended for a customer in Saudi Arabia, noted that this was a “project for all intents and purposes we can tell, from all of the evidence that was garnered in this trial, hadn’t even started yet. Wait a minute. Let’s assume there’s an inference from the evidence that the Saudi Arabia project had somehow started even in its infantile stage, “Why would Joe be writing him a check for the balance when that project hasn’t even been completed and there’s no evidence of final payment and install? Why would he be getting the balance on the same day as a deposit? That doesn’t make sense. That doesn’t reconcile with his spread sheet. It doesn’t reconcile with the rest of his QuickBooks activity. And even if there is an innocent explanation for this, there is no evidence that Joe’s business practice was to create, backdate checks and then delete them from his QuickBooks account.”
Imes posed the rhetorical question, “The importance of backdating them to the fourth is what?” He then answered, “The author knows that the last human contact with Joseph McStay was February 4th. Otherwise, you could pick any day you wanted. You could have picked the fifth, could have picked January 31st, could have picked whatever, but the operator mind is the person who is benefiting from them and cashing them, is the person who is writing them, and his freedom of mind is that he knows Joe’s last contact with other humans is February 4th. All during that time, the defendant’s phone activity is around his house and then he goes off the grid again. He goes off the grid from 3:54 pm to 9:17 pm, after which he is seen pinging off of towers going in a northerly direction on Interstate 15. Where was the defendant for almost six hours? What could the defendant do in six hours? Clean up a crime scene? Hide evidence? Move evidence? That’s six hours of time.”
On February 6, 2010, Imes said that Merritt, “After being off the grid since 9:25 pm on 2/5, his first contact is at 10:45 am, and all of a sudden, at 11:30 to 11:52 and 1:30, the defendant’s phone is pinging off a tower on Quartz Mountain north of Victorville off Stoddard Wells Road.” Implying that Merritt was burying the family in that area at the time, Imes then addressed Merritt directly, “You probably didn’t think when you were standing at those graves to turn around 180 degrees and look at that big mountain behind you and see the cell phone towers on top of that mountain within eyesight of those graves.”
Returning to addressing the jury, Imes continued, “Within eyesight of those graves the defendant’s phone is pinging, and important is one or two of those calls in particular where it pings off the sector of that tower that points due east, not south into the town of Victorville, not southeast into the town of Apple Valley, due east, not north towards Barstow, due east, not to the west. And then he goes off the grid again from 3:14 pm until 10:35 am, seventeen hours and some change, seventeen hours in which a defendant, a murderer could move evidence, hide evidence, clean up evidence.”
Imes said Merritt had no alibi for February 6. “Evidence would point to someone associated with the killing of the McStays was in the desert on the sixth,” Imes said.
February 8th we have the weird 2 a.m. internet searches on eMachines [at the McStay residence] followed by random searches through the Google toolbar to push them down. Was it effective? No. We still see it.”
Imes suggested the person in the McStay home that morning was Merritt. “For someone who is not computer savvy, maybe thought he pushed it down enough,” Imes said. “It shows that it wasn’t the last thing searched. Maybe when that was done it was simply to bury it a little bit to show it wasn’t the last thing done. More importantly, where was the defendant at the time? We don’t know. His cell phone doesn’t tell us. Cathy doesn’t tell us. Taylor [Merritt’s daughter] doesn’t tell us. You have a gap from 5:17 pm until 7:25 am, 7:26 am the next morning. No cell phone activity. No witnesses putting him at home.”
Imes suggested that further several-hours-long gaps in Merritt’s cell phone activity supports the prosecution’s contention that he drove the McStay family’s Isuzu Trooper to near the Mexican border in San Ysidro, where he abandoned it. “The defendant’s off the grid again for a period of five hours, eight minutes,” Imes said. Imes then referenced further QuickBooks activity relating to the email@example.com account from about 2:20 pm to about 3:51 pm. “All of a sudden, a check to Charles Merritt for Saudi Arabia final for $6,500 is created, edited, backdated to the fourth and then deleted after being printed,” Imes said. “Those reasonable explanations pointing toward innocence fall away when you look at the checks for the eighth [February 8] in context with the checks from the fifth. They make no sense. They do not reconcile with something that points to innocence. They reconcile solely with the defendant, Charles Merritt, forging checks to financially benefit from a missing Joseph McStay.”
Imes referenced Merritt’s online efforts to delete the Earth Inspired Products’ QuickBooks account data and his calls to QuickBooks customer service representatives in which he posed as Joseph McStay and attempted to have the QuickBooks account data deleted. This was done, Imes said, to cover up the evidence of his check forgeries.
“Important is at 6:31 pm is the last phone call registered on the defendant’s phone [that day],” Imes said. “That last phone call is the last time he’s heard from on the 8th. The next time you hear from him is at 7:34 am on the 9th. You’re talking almost 13 hours of inactivity, time to move evidence, conceal evidence, clean up evidence. And it’s during that time, ladies and gentlemen, during that long period of time, that the Trooper was noted at 9:18 in the San Ysidro parking lot.”
On February 9, 2010, Merritt again called a QuickBooks customer service representative “logging his telephone number, asking to delete the account,” Imes said. “Why would Joseph McStay or someone with innocent intent need to delete the business records for a business that’s been around for years? There is no evidence based on reason for the defendant needing to delete QuickBooks and order a new one. No reason based on the evidence at all.”
Imes said Merritt’s use of the past tense with regard to the McStays during an interview with San Diego Sheriff’s Department detectives Suzanne Fiske and Troy DuGal on February 17, 2010 was an indication that he knew the family was dead. “The subconscious speaks volumes,” Imes said. “It’s clear his subconscious is already talking in the past tense. When you put that in context with all the other events from the first, the second, the fourth, the fifth, the sixth and the eighth, that state of mind of the defendant is the state of mind of a killer already knowing they are gone and will never return.”
Imes suggested that the two sets of tire tracks found near the graves, one set of which was 73 inches wide, outer edge of one tire to the outer edge of the other tire, and the second set 76 inches wide outer edge of one tire to the outer edge of the other tire, might have been made by the same vehicle, that vehicle being Merritt’s truck, the width from the outer edge of one tire to the outer edge of the other tire being 71.5 inches.
“The measurement of those depressions cannot be considered 100 percent accurate,” Imes said, and that’s why it’s always been put forth to you that they are consistent with the defendant’s truck.”
Imes said Merritt’s DNA was present inside the Isuzu Trooper and he dismissed the defense’s contention that it could have gotten there through contact spread by Merritt and Joseph McStay shaking hands during their meeting on February 4, just before Joseph departed to return to Fallbrook from Rancho Cucamonga.
Imes was equally dismissive of defense suggestions that trace amounts of DNA found in the graves could be realistically considered, based upon DNA genotyping using a probabilistic methodology devised and applied by defense expert witness Dr. Mark Perlin, as evidence of three other unidentified males last having had contact with the McStay family before their corpses were disposed of in the graves.
Imes said that the defense’s assertion that Dan Kavanaugh, who was involved with Joseph McStay in using search engine optimization to promote the Earth Inspired Products on the internet, was the actual killer disregarded evidence that Kavanaugh was in Hawaii at the time of the murders and the family’s disappearance.
The defense’s case, Imes said involved “smoke and mirrors” in which Merritt’ attorneys were telling the jury “Don’t look at the defendant. Don’t look at that man who was benefiting from cashed and forged checks. Don’t look at the man whose cell phone was pinging off cell towers overlooking the graves. Don’t look at the man who called QuickBooks to delete evidence of his criminality, to cover his tracks. Look over here. There is no credible, reliable evidence that Dan Kavanaugh was involved in this crime at any time. Imes said Kavanaugh’s involvement with the company after Joseph’s disappearance during which he secured for himself more than $206,000 in revenue from Earth Inspired Products was Kavanaugh’s “attempt to operate that business … to try to keep the thing going.”
Imes intoned, “The defense is asking the jury to speculate, ignore evidence and reach an unreasonable conclusion. This case has always been about and continues to be about the defendant, Charles Merritt, and his actions. Ultimately when you look at things in their totality, who benefited?” Imes said that no matter which way the case was considered, “It always comes back to the centerpoint being the defendant. It always comes back to the man with the means, the motive and the opportunity to commit that murder and there is no dispute that this is first degree murder regardless of what precipitated the first murder. It’s time to render that justice. It is time, based on the evidence presented to you, to recognize the brutality of the defendant’s actions, and the superficiality of his motives, his greed and his self-interest. It is after a full consideration of all of that evidence and all of the circumstances in connection with each other to render the one true and just verdict in this case: guilty of first degree murder for Joseph; guilty of first degree for Summer McStay; guilty of first degree murder of Gianni McStay; and guilty of murder in the first degree for Joseph Jr.”
James McGee gave the defense’s first answer to Imes’ diatribe.
“They didn’t develop a theme of guilt of murder,” McGee said. “The prosecution talked about motive, and did not talk about the murder. The prosecution’s approach was “Let’s talk about why he is a bad person. They tried his character and not the facts in this case. They even said, ‘We don’t have to tell you the where, the when and the how,’ you know, the things that deal with murder: when it happened, how it happened, where it happened.” Glancing at the prosecution team, McGee said, “You didn’t say how he did it. You didn’t say where he did it. You didn’t say when he did it. You didn’t say where it all happened, so we can’t say there’s no evidence of that, there’s no evidence of that, there’s no evidence of that.
They ignored facts and witnesses that didn’t fit their contrived story. It’s important who they called and who they didn’t call, what facts they wanted to talk about and which ones they didn’t.”
McGee told the jury, “Based on the plain language of the law, it’s not guilty. That’s why the prosecution doesn’t want you to follow the law in this case. They want you to focus on hatred and emotion: hate Mr. Merritt and have sympathy for the family.”
McGee said, “When they start with, ‘We’re not going to be able to tell you what happened or anything about the crime,’ that’s conceding they cannot fulfill their burden of producing evidence. If you are walking into a trial like that, you should not be walking into a trial at all. You have to fulfill your burden of evidence to actually show you 12 that you can decide what the facts are based on that evidence. They [the prosecution] want you to speculate, to guess, to make it all up without anything in the record to say, “Wait, how does that get supported in the evidence?’ The burden is on them to prove he’s not innocent. They kept saying, ‘Well, they didn’t call this alibi witness. They didn’t call this alibi witness. He can’t prove where he is this time. He can’t prove where he is this time. He’s off the grid. He’s off the grid.’ We don’t have to prove anything, nothing. We don’t have to prove his innocence. We don’t have to prove an alibi. We don’t have to prove where he was. Apparently, you’re off the grid if nobody calls you. Your phones not running during the day, you’ve been off the grid, according to the People. When you’re sleeping at night in your bed, you’re off the grid.”
The prosecution constructed its case on a foundation of misrepresentation, false facts and manufactured evidence, McGee said.
“It is necessary for the motive that Joseph fired Chase during that lunch on February 4,” McGee said. “Now the prosecution doesn’t want to hear this but they presented all that information that there was that lunch on the fourth. There was the call to the bank. There’s checking QuickBooks, calls to the bank again, and then Joseph driving all the way up to Rancho Cucamonga to meet with Chase. He didn’t come up here for anything else. The theory was he came up that afternoon to fire him. That makes no sense. That makes zero sense from the actual evidence.” Conceding that Joseph McStay’s mother and brother, Susan Blake and Michael McStay, testified Joseph McStay was looking to get rid of Merritt, McGee pointed out that Michael McStay had never actually been to his brother’s house while Joseph was alive. “Michael’s never been to the house,” McGee said. “Doesn’t know where the house was.” Conscious that Michael McStay was in the gallery, McGee sent a question in his direction, “When did he tell you that? If that’s true, then you knew he [Merritt] was gone, then why did you have him keep working in the business after they disappeared?”
McGee averred that Joseph McStay’s survivors had adopted the prosecution’s version of events. “Common sense tells you they were talked into that,” he said.
“What we know is that if Joseph was going to get rid of Chase, then they had to fill Chase’s function,” McGee said. Merritt did all the custom fabrication work for Earth Inspired Products, McGee said. McStay could not build the water features, McGee said. “He needed Chase,” McGee said. “There was nobody set up to replace him because he wasn’t getting replaced. The only person that could do that work was him,” McGee said, pointing toward his client.
McGee set a diagram showing Merritt’s and McStay’s cell phone activity on February 4 as testified to by FBI agent Kevin Boles, the prosecution’s expert witness on cellular communications, showing that both their phones were pinging off of cell phone towers in the Rancho Cucamonga area proximate to one another in the afternoon hours when Merritt had told detectives he was meeting with McStay at a local Chick-fil-A franchise. “And now they [the prosecution] are saying there’s no evidence they actually met. Do you like being lied to?”
McGee did not let go of the prosecution’s contention that Joseph McStay was showing Merritt the door. “So who’s replacing Chase?” McGee asked. “Metro Sheet Metal is. That’s the one they are going to go with. Well, Metro Sheet Metal did not have the skill necessary to build those waterfalls. All they did is bend sheet metal. That’s it. They bent the stainless. They could not and did not do the plumbing. It’s a waterfall. Waterfalls involve water, which involves plumbing. They did not do the electrical. They did not do the glass. They did not do the stonework. They did not do the stainwork, the different effects. They did not build. They did not ship and they did not install. That is not what they do. They know how to bend metal and that’s it. Metro Sheet Metal could not take over from Chase.”
McGee said the prospects for Earth Inspired Products were looking up, reducing the prosecution’s theory of motive in the case to absurdity.
“They knew they were getting ready to come up,” McGee said. “They were working toward stuff that’s big. Joseph and Chase are meeting constantly, talking about work, talking about the business.”
On the courtroom’s overhead projectors Maline played a clip of the trial testimony of a prosecution witness, McGyver McCargar, who was present at the McStay home on February 2 when Merritt was also present. McCargar testified that Joseph McStay and Merritt were discussing the use of LED lighting on the waterfalls and were using an LED set up during that discussion.
This was proof that shortly before the murders, both were fully engaged in the business, and cooperating toward shared goals out of a shared interest. “They weren’t talking about money,” McGee said. “They weren’t talking about, ‘Oh, I need money,’ or ‘You owe me money.’ It’s about making money. Businessmen try to make money. And that’s what they were talking about: making money now and in the future. Chase was there every time McGyver was there. Constant contact. Constant physical interaction with one another.”
McCargar, despite having been called by the prosecution, also offered a key element with regard to the events in the case that fits with the defense narrative, McGee said, specifically that McStay for some time had been trying, and just shortly before the murders had at last managed, to put to an end Dan Kavanaugh’s connection to Earth Inspired Products. McGee played on the overhead projectors another video portion of McCargar’s testimony in which he was asked, “So when you spoke with Joseph and you are talking about working with Dan, Joseph expressed to you his plans to buy Dan out?” McCargar responded, “Yeah. He – not planned – he had already done – he’d done that already.”
After playing the clip, McGee said, “So, finally Joseph’s done with Dan. He’s got him out, finally. January 31st was the day they [McCargar and McStay] had that conversation, based on the testimony. Well, who’s Dan? Dan knows everything about him. Dan’s the hacker. He’s the computer guy. He gets into everything that they do. ‘So, we need to keep Dan out of our business. How do we do that? Well, we have to change our business practices to make sure we hide this information from Dan.’ Why is there a change in Joseph’s practice? Here it is. They finally got rid of the guy. So, they not only have to hide it from Dan, they create a new account for custom [the division of Earth Inspired Products engaged in building to order customized projects]. So we have our non-custom side and we have our custom side. Why separate them? Because then any interaction with the waterfall business or anything he wants to give Chase access to doesn’t interfere with everything else he does, and we now need to remove it from Dan’s eyes. How do we do that? Take it off line.”
This explains Merritt’s interaction with the QuickBooks customer service representatives on February 8 and February 9, which the prosecution interpreted as a sinister effort by Merritt to hide the check forging activity he had been engaged in. “There’s the change of practice,” McGee said. “Joseph’s the one who figured out you can write checks and delete them so Dan couldn’t see them. It was a short term fix until they could get it off line. We know that by the time it was happening in his house. Now you heard during the statement of Mr. Merritt [to detectives DuGal and Fiske during his interview on February 17, 2010] that when they drove up and met for lunch, part of the reason was Joseph is bringing him blank checks. The meeting was for that, not to fire him. That’s when he got the checks and the instructions on what to do with them and how to do it and where you want to go from there. That’s why the meeting was so long. After this meeting, Joseph drives home. Now, if you’re buying the People’s story that he was fired, that does not coincide with what Joseph did after that. When you fire somebody as a boss, when you fire an employee, do you call them afterwards to see how they’re doing? No. The person that got fired calls and tries to convince them otherwise. That’s not what happened here. After that meeting Joseph called Chase seven times. Seven, and not one call from Chase to Joseph. If Joseph fired Chase, Joseph would have never called Chase. You pull that band-aid off the last thing you want to do is stick it back on.”
According to McGee, “These phone records also support the idea that Joseph gave Chase permission to do everything he did. Why? Because they also show that he’s giving him an update after he does it. First, Joseph creates and deletes a check for Merritt on February 1st and then calls him and talks to him about ten minutes, walking him through how it’s done. ‘Hey look, it can be done. This is how you do it.’ It was done on his computer at the time. Here’s the call to explain it.”
Simultaneously, McGee showed on the courtroom’s overhead visual displays a graphic showing that on February 1 at 12:47 pm Joseph created and deleted checks for Merritt and then made a 9 minute and 56 second call to Merritt at 1:03 pm; that on February 2 at 11:37 am Merritt created and deleted checks and then made a three minute and 24 second call to McStay at 11:46 am; that Merritt made a 55 second call to McStay’s cellphone on February 5 at 10:59 am, then wrote and completed deleting four checks by 12:39 pm, and then made a 52 second phone call to McStay’s cellphone at 12:49 am; that on February 8 between 3:11 pm and 4:59 pm Merritt called QuickBooks to order the desktop version of the accounting program and transfer the data from the online version to the desktop version, and then made a 53 second call to McStay’s cell phone at 5:01 pm; and Merritt made a follow-up call to QuickBooks on February 9 between 7:34 am and 8:17 am, after which he placed a 2:03 second call to Joseph McStay’s cellphone.
“Merritt creates a check on the second,” McGee said, “and deletes it, calls Joseph and nine minutes later after a three minute conversation it does work. It was never cashed because it was a dry run, but it does work. Then, on the fifth, they’re missing. Merritt calls Joseph in the morning. He doesn’t pick up. What’s he calling for? I don’t know. Maybe, ‘Hey, I’m going to do this. Is that okay? I’ll leave you a message. I’m going to do it.’ He does all the checks. He deletes them out like he was told to. After he’s done, ten minutes later, he calls him up. ‘Everything’s done. I’ve written them. I’ve deleted them, but they’re coming. Here’s the amounts.’ The phone records show it is done by permission every time something’s done. He calls QuickBooks. Transfer the order from online to desktop. He makes that call 3:11 to 4:59 and then calls Joseph at 5:01. ‘Hey, I went through the process you wanted me to do: Check your mail.’ He calls him back. Then he calls Joseph. ‘I called again.’ Left a longer message: ‘Look, this is what I’ve done. This is the problem we’re having. Get back to me. What’s going on? ‘”
McGee said, “It’s all in the records.”
McGee said, “They [the prosecutors] say there’s no records in the computer showing all this stuff done. What about the Giuseppe laptop that was taken and missing? They don’t know what’s on it. Or they don’t know if that really exists. It’s in the network. There’s pictures of him looking at it. The computer exists. There’s your missing evidence to support a lot of stuff that was going on.”
Joseph McStay had a laptop computer that was designated “Josepe” or “Giuseppe.” His brother Michael testified as to its existence. The home’s computer network registry attests to its existence. Files unearthed from the internal registry of one of the McStay home’s other computers, an eMachine reference that laptop. Some files or documents created on the laptop were transferred to the eMachine. The Giuseppe laptop vanished at the time of the family’s disappearance and has never been recovered. The prosecution has suggested the Giuseppe laptop might not have existed.
McGee honed in on the heart of the prosecution’s contention.
“If Joseph did not fire Chase on the fourth, this case is done,” he said. “There’s no motive. Everything else is fluff. Everything else is a story. Everything else is misdirection. All the evidence points to he was not fired.”
McGee pointed out that Imes’ assertion that Merritt was not at the McStay house on February 2 was contradicted by the cell phone records as well as the testimony of one of the prosecution’s witnesses, FBI Agent Kevin Boles, who placed Merritt at the McStay home on both February 2 and February 3.
McGee said the recollection of Merritt’s and Cathy Jarvis’s daughter, Taylor Jarvis, that her parents had argued over Merritt not answering what later was shown to be the last phone call ever made from Joseph McStay’s phone at 8:28 p.m. on February 4, 2010 places Merritt at his Rancho Cucamonga home on that fateful night.
McGee said that Imes’ assertion that there had been 19 calls from Merritt to Cathy Jarvis during the time Merritt said his meeting with Joseph McStay was taking place on the afternoon of February 4 turned out to be inaccurate when the records were checked. “There were only six,” McGee said. “Only one connected. It was four minutes long.”
McGee said there was no evidence of the murders having occurred in the McStay home.
McGee referenced “a problem with the theory that he drove down and killed them on the fourth is the vehicle that was in the driveway left at 7:47 [pm]. But we have computer activity at 8:05 and a phone call from Joseph’s cellphone from the area of the house at 8:28. So if the killer’s done and left, why is there still activity in the house? Unless they weren’t dead? Unless the vehicle that’s really pulling out of that driveway had nothing to do with the murder. That’s just somebody pulling out of their driveway.”
McGee said, “We can assume the murder happened then, but how?”
McGee said that in examining the Mitchley security video which captures the image of the vehicle pulling out of the McStay driveway at 7:47 pm on February 4, no running lights below the headlights are visible. “That’s a characteristic that’s missing,” McGee said. “That’s exclusion. It’s not his vehicle.”
McGee said the prosecution from the time of Merritt’s preliminary hearing in June 2015 until February 19 of this year while the trial was ongoing had contended that the light seen at the back of the vehicle on the Mitchley video was the rear marker light on Merritt’s truck. That was the conclusion of Dr. Leonid Rudin, one of the world’s leading photogrammetrists, who was for four years the prosecution’s expert with regard to identifying the vehicle and matching it to Merritt’s truck, and the assertion of the prosecution at Merritt’s preliminary hearing. After Rudin testified at an evidentiary hearing outside the presence of the jury on February 5 of this year at which he was challenged by McGee about the marker light on Merritt’s truck not conforming to the position of the taillight on Mitchley video vehicle, McGee said, “He went back and he looked at it again” whereupon McGee said Rudin stated, “It can’t be that marker light. Mr. Imes, it’s not his truck.” At that point, McGee said, Imes told Rudin, “‘Go away.’ That was February 15 when he told the prosecution. February 19, you remember from the testimony, was when Mr. Liscio was retained, four days later.”
McGee then recapitulated a dialogue between Imes and Liscio that he projected as having taken place at the time Liscio was hired. “‘We have a problem. Our whole theory that we’ve sold this whole time is wrong, so let’s make up a new theory. Mr. Liscio, how much would it cost for you to say a light is not a light?’ ‘Fourteen grand.’ ‘Okay. Well, that’s what I need you to come in and say. I need you to come in and say this light is not a light. It’s a reflection from an unknown light source.’ ‘No problem.’”
McGee pointed out that ultimately, when Liscio was pressed on whether what he had referred to as an “illuminated spot” near the rear of the vehicle on the Mitchley video was a light or not, he hedged his answer. Liscio in his testimony suggested that the illumination might have been a reflection, consisting of light that was mirroring off of a latch handle on the rearmost cargo compartment on Merritt’s truck.
“I asked Mr. Liscio, ‘If that’s not a latch and it’s a light, is my client’s truck is excluded?’” McGee said, with Liscio insisting over and over “I don’t know what it is.” McGee told the jury, “I asked him like six times. He refused to admit, because he was paid to never admit that his [Merritt’s] truck can be excluded. In all of his testimony, does he ever tell you it’s his truck? No. He says, ‘I can’t say it is or it is not.’ That’s the best he could say. So, the best they have is ‘I don’t know. Maybe.’”
At the same time, the prosecution’s original expert witness, who had been evaluating the matter for four years, Dr. Leonid Rudin, had come to the conclusion that the vehicles did not match. “We had Mr. Stutchman [i.e., the defense’s expert Gregg Stutchman] say it’s not his truck and Dr. Rudin, their expert, saying ‘No, it’s not his truck.’
McGee said, “They doctored evidence to sell their stories.”
McGee said the available evidence, consisting of the bed clothes the family was buried in, the food that was out in the kitchen along with coffee that was prepared and remained in the coffee pot when the house was entered on February 13, taken together with the consideration that the family’s dogs which normally slept inside the McStay house at night were in the backyard strongly indicates the family was not killed until the morning of February 5, as opposed to the night of February 4, as the prosecution maintains.
McGee said the family may very well have been kidnapped.
The mass of cord and painters tape found in the graves would suggest those materials were used to bind or restrict the victims during the abduction, McGee said. The manner in which Joseph McStay, Sr. was wrapped in some sort of woven material and bound with wire and straps, McGee said, suggests he was killed elsewhere and transported to the grave site.
And McGee said, evidence suggests that Summer McStay was raped at the grave site before she was killed.
Fully confident in their client’s innocence, McGee said he and the other members of the defense team had pressed forward with using an M-Vac system to extract DNA from nine items in the graves, including the wire and straps used to bind Joseph McStay as well as each half of the bra that had been cut off Summer McStay. The DNA that was harvested was subjected to a probabilistic genotyping protocol developed by Dr. Mark Perlin, which ascertained that the DNA of three males who matched neither Joseph McStay, Gianni McStay, Joseph McStay, Jr, nor Merritt was on those items.
“That there tells you Merritt didn’t do it,” McGee said. “The evidence in the grave says it’s not him.”
McGee was dismissive of the prosecution’s insinuations that the selection of the High Desert as a burial site implicated Merritt because he had lived in the area during his youth and had a brother who lived in Hesperia and a sister who lived in Oro Grande, making him intimately familiar with the area.
McGee played for the jury a video passage of the testimony by Dr. Alexis Grey, who was called as a witness by the prosecution early in the case as an anthropology expert.
“So is it safe to say Stoddard Wells Road is a common place where bodies are found?” McGee asked.
“It is as common as many,” Grey said.
The prosecution’s insistence that Merritt’s cellphone connecting to a cellphone tower located on high ground up Quartz Mountain 1.92 miles from the grave site on February 6, 2010 implicates him in burying the bodies, is a misapplication of the data and science relating to cellphones, cell towers and how they work, McGee insisted. Those pings are neither proof nor an indication that Merritt was at the grave site nor anywhere near it that day, McGee said. McGee referenced the testimony of the prosecution’s expert witness with regard to cellular communications, FBI agent Kevin Boles, that when those calls, including several in between 11:30 am and 11:52 am and a single call at 1:30 pm routed to the tower, the signals switched to other towers in the area before the calls concluded, an indication that Merritt was either traveling when the calls were made or that his phone had pinged off that tower because of its altitude significantly above most of the other towers in that portion of the High Desert.
He referenced the testimony of Boles at trial when McGee had asked him, “Is it fair to say with just this little bit of information you have that it would be too speculative to pinpoint the phone?”
“Correct,” Boles responded.
“Is it fair to conclude that the only reasonable opinion or conclusion you could make about this data is that the cell phone was in the High Desert area?” McGee asked.
“Yes, I believe that’s a fair assessment,” Boles replied.
“Anything more detailed than that?” McGee pressed.
“No,” said Boles. “I mean you get a general idea that they’re in the High Desert. Nothing more.”
McGee cited Boles responses to assert that the cellphone data in no way put Merritt, who at that time had a brother and sister living in the High Desert, at the grave site, which is a central element of the prosecution’s case against Merritt.
“That’s all he [Boles] could say,” McGee said. “He’s not going to overstate it. He’s not going to do any favors for the government. He is going to tell it like it is. You have a cell phone in the Victorville area moving. That’s all you have.”
McGee took issue with Imes’ suggestion that Merritt was aware of how his movements and positioning could be tracked by an examination of his cell phone use, such that he had shut his phone off when he was engaged in activity related to the McStay family homicides so his whereabouts could not be tracked.
“So again, on the fourth he apparently wants to go off the grid when he’s doing stuff illegal, when he’s going to kill,” McGee said. “But when he’s burying them, he’s going to keep his phone on, not only in case somebody calls him, God forbid, when he’s in the middle of doing something illegal but no, he calls. He’s the one calling. He’s calling Cathy and his eldest child Taylor. If you’re in the desert burying bodies, you’re not calling anybody. You keep your phone off, right? That’s the theory: He’s a mastermind. He knows you can trace his phone. But this time, no, that’s not what he does. Their [the prosecution’s] theories contradict themselves.”
Furthermore, McGee disputed the prosecution’s assertion that the McStay family was buried on February 6, 2010, when there was a 1.1- inch downpour in the Victorville area. The prosecution maintains that the tire tracks that were left in the area leading up to the graves are there because the burying was done on February 6 while the ground was soaked. McGee said it would be difficult to dig a hole and bury anyone in the rain.
When the bodies were crudely interred, McGee said, “It was dry enough – no rain – to where they can pile the dirt on top of the bodies and protect them somewhat from animal activity. Well, so you need rain to make the tracks but you need to be dry, so they were buried on the seventh. Or the eighth when the ground is still wet, where the tracks are made but you can still bury them.”
The killing of the family and burying them, McGee said, involved at least three people. He said getting the victims to the site, digging the graves and burying them “took multiple people.”
After McGee finished his statement, Merritt’s defense co-counsel Rajan Maline weighed in.
Maline took issue with what he said was the Imes’ mischaracterization of the February 1 email from McStay to Merritt as a $42,845 bill. It was rather a snapshot or summary that dealt with the ongoing balance of funds between them in relationship to Earth Inspired Products and the company’s ongoing projects, which involved money coming in and money going out, Maline said.
Maline said that in maintaining the February 1 email from Joseph McStay to Merritt indicated Merritt was $42,845 in debt to McStay, the prosecution glossed over that elsewhere in the email it shows an offset in favor of Merritt of $26,000. “Excuse me, time out,” Maline said. “Let’s look at the first two lines of that email. That’s a credit. You don’t just say 42,000 [dollars]. You don’t tell the jury it’s 42,000. At best, you tell them it’s 42 minus the 26 he’s getting for [the] Paul Mitchell and Saudi Arabia [projects].”
Rather than something that pushed Merritt into murdering his business associate, the email was a routine part of business, Maline contended. Maline pointed out that Merritt provided detectives DuGal and Fiske of the San Diego Sheriff’s Department with the February 1 email from McStay to him along with a finance balance spreadsheet when he was interviewed by them about the missing McStay family on February 17, 2010. At that same interview, Maline said, Merritt told DuGal and Fiske that he wrote checks against the Earth Inspired Products account, had deleted the checks using the QuickBooks system, that Joseph had given him blank checks and authorized him to issue the checks. At that time, Merritt gave the detectives an accurate explanation of the matching relationship between the spreadsheet and the email, Maline said, and he told the investigators he had attempted to have the QuickBooks online version deleted in favor of the desktop version. DuGal filed the information away, which was essentially lost in the shuffle, Maline said. More than three years later when San Bernardino County sheriff’s investigators took up the case, they focused in on Merritt and did not believe him when he told them he had made an accurate disclosure of how the financing of Earth Inspired Products projects was handled, how Joseph had provided him with checks and how he and McStay were attempting migrate the QuickBooks account from online to a desktop version. His statements were met with disbelief by the San Berrnardino County detectives, who formulated a murder case against him based on a misperception of Merritt’s activities relating to the Earth Inspired Products account, Maline told the jury. Subsequently, however, well after charges against Merritt had been filed, Maline said, “When our [the defense’s] computer expert Bryan LaRock was searching Joseph’s computer, doing his forensic analysis, lo and behold, he finds the 2009 spreadsheet.”
Maline then displayed the spreadsheet on the courtroom’s overhead display monitors. “This came straight from Joseph’s Google Docs that was found on the eMachine, and the prosecution didn’t know about it. They didn’t know about it because they didn’t bother to look. It was on the computer that they seized. Detective [Jason] Schroeder, their computer expert, had the file. It was in his list of thousands and thousands of pages. But if they would have looked, they would have found that, wait a minute, this was on Joseph’s computer. This is not something that Chase manufactured. This was on Joseph’s computer. And guess what? You are going to have both exhibits in evidence. You look at them. They’re identical. There’s not one difference. This is Joseph talking,” Maline said, pointing to the spreadsheet. “This spreadsheet says plenty. Everything that Chase told [the] San Diego [Sheriff’s Department], everything that Chase tried to tell the [San Bernardino County Sheriff’s Department] detectives in his eight-hour interview where they basically said he was lying about everything, came to fruition,” Maline said, pointing to the spreadsheet.
The spread sheet showed that Merritt completed and finalized every project he took up for Earth Inspired Products, Maline said.
Maline said an analysis of Joseph’s spreadsheet would demonstrate that the prosecution’s allegation that McStay was sidelining Merritt was untrue. The spreadsheet, Maline said, illustrates that accompanying the reduction of Merritt’s share of the revenue from the Earth Inspired Products operation from 65 percent to 15 percent in October 2009 was a transition of the financial responsibility for purchasing the materials and the costs of the underlying sheet metal fabrication used in the projects from Merritt, as was the case previously, to McStay. When Merritt was getting 65 percent but paying for fabrication and materials, Maline said, “after he spends his money, after he buys the material, he’s left with a profit of about 15 to 20 percent, in that range. The prosecution would lend you to believe that he’s making 65 percent but then he went down to 15 percent and therefore he’s making less money and therefore that’s somehow some type of motive. Well, that’s completely untrue. It’s untrue because Joseph is telling us it’s untrue with this spreadsheet.”
Maline said that in October 2009 “The profit structure changed. From 65 percent where Chase is going to be buying everything [to] now Joseph is going to take over and spend and pay for the fabrication of the sheet metal, pay for the other items that need construction and Chase is basically going to be dealing with the artistic creation of the waterfall, the stone, the glass, things of that nature. Materials would not be purchased by Chase, and the biggest cost, which was Metro Sheet Metal, would be paid directly to Metro Sheet Metal starting in October of 2009. So the profit structure changed to Chase now getting 15 percent. But guess what? He doesn’t have to go and bend metal and buy it and all that stuff. He saves that cost and the cost of goods as well, because now that’s going to be borne by Joseph. Chase is going to make about the same, if you look at the profit structure for the Paul Mitchell and Saudi Arabia jobs.”
Merritt was not stealing from Joseph McStay or from Earth Inspired Products, Maline said.
“The idea that these six checks, two which went to Metro Sheet metal, provided some kind of motive is ludicrous,” Maline said. “This was normal activity for Joseph and Chase. When they get money from a customer such as Saudi Arabia, they’ve got to start work on it.”
Maline said that Merritt’s common law wife, Cathy Jarvis, gave a true and reliable account of Merritt being in Rancho Cucamonga in the evening of February 4. “She was recalling events of that day when she talked to investigators,” Maline said. “What she told them was she remembered Chase was going to meet Joseph that day on the fourth, they were going to go to lunch, that Chase came home from work, it was still light outside. She remembers Chase getting checks from Joseph, that he brought the checks, actually. And she knows this because that was a common occurrence. She said that happened all the time. Naturally, Joseph would have to give him checks to go and do these projects. As far as her recollection was concerned, Chase remained home, at the apartment complex. Of course he could obviously have been at the clubhouse. She wasn’t necessarily saying he was right in the house, in their house, but he was in the complex. He didn’t go anywhere, in other words. He didn’t get in a vehicle and drive somewhere. When Chase got into the apartment at whatever time it was that evening, she remembers a call came in at 8:30. And she’s not mistaken. And you want to know how she’s not mistaken, ladies and gentlemen? You want to know why that’s not a lie by somebody who is a close relative or a biased witness? I’ll tell you why. Remember the interview she had with Detective [Dan] Hanke? In that interview they told her that she was lying. They told her, ‘You’re mistaken. That call never, never came in. You’re wrong.’ Over and over again. She described the interview as hell. Remember they planted that wiretap? She called Chase after the interview and she told him about what they were doing. You guys should listen to that again. She describes how bad that interview was and how long it was. In that interview, what she told them about that call would be a big problem for their case because, 8:30, if Chase is at home, he ain’t in Fallbrook killing anyone. So that’s a problem for them. So they told her that she’s mistaken over and over again. ‘You’re mistaken.’ ‘No, I’m not.’ Then they confronted her with records. They pulled out records. But the records they pulled out were Chase’s records. Well, we know that 8:30 [8:28 pm Thursday, February 4, 2010] call from Joseph ain’t on Chase’s records. You guys heard that testimony several times. They show her the 8:30 time. ‘Look, no call from Joseph.’ Mind you, she doesn’t know that Joseph’s phone records show it. She doesn’t know that. If she’s lying, then she’s complicit in some nefarious activity with Chase. She could be called out on that. If you are lying about that, that’s about the time that most people fess up. That’s what happens when people get caught in a lie by the police. They fess up, and they say, ‘Okay. You got me.’ No, that didn’t happen. She stuck to her guns. She doesn’t know that she’s going to be vindicated later on by a call record that shows there was an 8:30 [8:28 pm] call on the fourth. How would she know that? She’d have no way to know that. But she stuck to her guns.”
Maline said the San Bernardino County Sheriff’s Department had confused Sunday, February 7, 2010 with Monday, February 8, 2010 in getting a statement from the wrong security guard at the mall in San Ysidro where the McStay family’s Isuzu Trooper had been abandoned. In evaluating the proper date and the actual work schedules of the security crew, it is clear, Maline said, that the Trooper was not discovered in the parking lot until relatively late in the 3 pm-to-11 pm swing shift of February 8, which according to the report authorizing the tow of the vehicle was at 9:18 pm. That timeline clashes with Merritt’s known whereabouts on February 8, meaning the defendant could not have driven the Trooper to San Ysidro, Maline said.
Maline said that the prosecution, while maintaining Dan Kavanaugh was in Hawaii when the McStay family murders occurred, has never been able to concretely verify that fact. In particular Maline said, no proof of a ticket to Hawaii or a boarding pass for Kavanaugh has ever been produced. He said that Kavanaugh’s former girlfriend, Lauren Knowles, who provided Kavanaugh with an alibi by saying Kavanaugh was with her in Hawaii at that time, was afraid of Kavanaugh.
In her rebuttal to McGee’s and Maline’s closing statements, Deputy District Attorney Melissa Rodriguez said the defense’s assertions were based on assumptions not supported by evidence. Rodriguez said there was once a good relationship between Merritt and McStay but things had “shifted” in the weeks or week prior to the family’s disappearance.
Rodriguez doubled down on Imes’ contention that the February 4 afternoon meeting between Merritt and McStay at Chick-fil-A in Rancho Cucamonga had not taken place.
She also disputed the defense assertion that McStay had provided Merritt with blank checks.
“Why in the world is Joe going to give financial responsibility to a convicted felon with a gambling problem?” Rodriguez said in an utterance that was objected to by the defense. Judge Michael Smith sustained the objection, though in the course of doing so, dwelt on Merritt’s felony conviction, which met the prosecution’s goal of registering with the jury that Merritt had a criminal past. “There is no evidence that Mr. McStay was aware of the fact that the defendant had a burglary conviction that was referenced on testimony,” Judge Smith said. “The jury is instructed to disregard that portion of the argument.”
“Well, we know from Susan Blake’s testimony that Joe had bailed him out of a gambling debt for about $20,000,” Rodriguez said. Susan Blake is Joseph McStay’s mother.
Rodriguez said that Merritt had stolen the Earth Inspired Products checks that he forged from Joseph’s home office when he was at the McStay home on January 31.
“There’s one reasonable conclusion that you could take from these checks, and that’s that they were forged by the defendant,” Rodriguez said.
Rodriguez said Cathy Jarvis was coached by the defense attorneys.
Jarvis could not have recalled the 8:28 phone call from Joseph McStay to Merritt’s cell phone that went unanswered on February 4, Rodriguez said, because the call did not register with Merritt’s phone.
Rodriguez lampooned McGee’s suggestion that the McStay family was abducted from their home on the morning of February 5, 2010.
“They were all tied together with painters tape and magically taken out of the house in the daylight hours with no one seeing a single thing,” she said.
Dan Kavanaugh’s former girlfriend Lauren Knowles, Rodriguez said, “never used the word afraid” in reference to Kavanaugh. “The language that she used was that he made her uncomfortable,” Rodriguez said.
Rodriguez said that the defense falsely claimed that the prosecution stated the family was killed in their home on February 4 and that Merritt buried the bodies in the desert on February 6.
Rodriguez said the prosecution alleged only that “something happened” in the house on February 4. “Nobody’s ever sat here and told you the bodies were buried on February 6,” Rodriguez said. “What we said is the defendant’s phone pinged off of a tower next to the graves on February 6.”
Rodriguez said the jury needs to discard all of the unreasonable explanations given for the events of early February 2010 and accept only the reasonable ones.
“You don’t get to murder an entire family and get away with it,” Rodriguez said. “You don’t get to murder an entire family and get away with it because you left behind no witnesses. That’s the reason those two children were killed, because they could identify the person who did this to them. Justice has been delayed. There is no doubt about that. Ladies and gentlemen, when you go back into that jury room, justice does not have to be denied for the McStay family. Justice in this case means going back into that jury room, looking at the facts, looking at the law, using your common sense, using your experience and returning verdicts of guilty and findings of true on the multiple victims allegation.”
The jury began deliberations late Thursday morning.
By Mark Gutglueck