This morning, the scheduled sentencing of Charles Merritt on his convictions in June of killing all four of the members of the McStay family in 2010 was postponed until December 13.
After a five-month trial, the jury in the matter on June 11 convicted Merritt, 62, of the first-degree murders of his one-time business associate Joseph McStay, then 40, McStay’s then-43-year-old wife Summer, and the couple’s two children, 4-year-old Gianni and 3-year-old Joseph, Jr.
Phone records and computer activity placed the family at their Fallbrook home on the evening of February 4, 2010. A call placed from Joseph McStay, Sr.’s cell phone at 8:28 that evening to Merritt was the last indication that the family was alive. Thereafter, all phone activity from Joseph, Sr., who was a prolific user of his cell phone, and Summer ceased.
The family had inexplicably vanished, with the only trace seeming to be what many interpreted as the family’s departure to Mexico, as the family vehicle was found abandoned in a mall parking lot less than a half mile from the international border in San Ysidro on the night of February 8, 2010, and a grainy video taken by a camera trained southward from the American side of the pedestrian crossing into Mexico at San Ysidro that evening depicted a family of four – a man, woman and two small children – seen from behind as they headed across the border.
The family was never heard from again. In November 2013, the corpses of three of the family members – Joseph Sr., Summer and Gianni – were found in shallow graves in the desert between Victorville and Oro Grande. Joseph, Jr.’s body had been unearthed by animal predators, and only minute remnants of his bones were found scattered in the area.
The gravesite was some eight miles from where Merritt had spent much of his adolescence in the 1970s, when he attended Apple Valley High School for three years.
Investigators gathered evidence and arrested Merritt in November 2014, just shy of one year after the bodies were found. Prosecutors assembled an entirely circumstantial case against Merritt based upon oftentimes sketchy evidence, including a poor quality video from a neighbor’s security camera of a vehicle which sheriff’s department investigators and prosecutors maintained was Merritt’s work truck leaving the McStay residence in Fallbrook at 7:48 p.m. on the night of February 4, 2010. Defense attorneys Jim McGee, Raj Maline and Jacob Guerard, however, contested that suggestion. The photogrammetrist the district attorney’s office first hired to evaluate that evidence and present findings the prosecution believed would unequivocally demonstrate Merritt was present at the McStay home when the family was killed, the world’s leading expert on photographic and visual analysis, Dr. Leonid Rudin, came to the opposite conclusion, offering testimony to indicate the vehicle in question was not Merritt’s truck.
Despite that setback for the prosecution, it was able to present evidence demonstrating that Merritt had written himself checks on Joseph McStay’s business account in the days just before, the day of and the days after the family’s disappearance, the last two of which were backdated to February 4, 2010. Merritt was also demonstrated to have called the customer service desk for QuickBooks, an accounting software company, on February 9 and February 10, 2010, identifying himself as Joseph McStay and attempting to have data relating to Joseph McStay’s business account electronically purged. The prosecution further presented cell phone account data to show that Merritt was in the High Desert on February 6, 2010 using his cell phone late that morning and early afternoon while his phone was making contact with a cellular service tower high on a mountain overlooking the expanse of desert where the graves were located. Prosecutors maintained that Merritt was burying the family on February 6, 2010.
After finding Merritt guilty of the murders of the entire family, the jury delivered sentencing recommendations of life without the possibility of parole for the killing of Joseph McStay, Sr. and death for the murders of Summer, Gianni and Joseph, Jr.
It was widely anticipated that the defense team would file motions for a reduction of the penalties from death to life without the possibility of parole as well as motions for a new trial and an appeal of the verdicts.
Such motions did not materialize, however, and upon taking up the matter this morning, Judge Michael A. Smith heard that both McGee and Guerard wanted to be relieved as Merritt’s counsel. The rationale for Guerard’s request was not provided. McGee claimed some order of a conflict in representing Merritt going forward. Maline stated, “I don’t feel I have a conflict,” but asked for a postponement in the sentencing because, he said, the substance of the motions to be made on Merritt’s behalf “deals with a lot of the work that was done by Mr. McGee.”
At that point, McGee, Guerard and Maline accompanied Merritt into a private conference with Judge Smith in his judicial chambers.
They subsequently emerged, at which point Judge Smith said, “There is a conflict between Mr. Merritt and Mr. McGee that would keep Mr. McGee from representing Mr. Merritt.”
Accordingly, Judge Smith said, he was going to grant a continuance for the defense team, giving it “time to investigate where they need to go. None of the motions have been filed, so the defense does need additional time to file motions for a new trial and to reduce the sentence. We tentatively discussed going over to December 13 for a hearing on any post-conviction motions and sentencing.”
Judge Smith then said he would hold an in-camera “conference on whether or not Mr. McGee should be relieved on November 1 at 1:30.” Judge Smith said that exchange would deal with “any issues to be addressed and whether there is a conflict, and Mr. McGee should be relieved. Mr. Merritt is entitled to a conflict-free counsel.”
Judge Smith, without divulging what had been said during the in-camera exchange in his chambers, offered a tantalizing glimpse of what might have been at issue when he alluded to “pitting one counsel against another. That is a concern if we reach the point where Mr. McGee says, ‘Despite whatever the discussions are, I feel I have a conflict and cannot continue.’”
Judge Smith said, “I believe we need to at least examine or address that issue, whether Mr. McGee can continue.” He noted that McGee and Maline are no longer law partners and that since “they are different offices and practices, that might not be as much of a problem.” While the judge hinted that some differences may have arisen between McGee and Maline, he did not state so explicitly.
Supervising Deputy District Attorney Britt Imes, who headed the team prosecuting Merritt that also included Supervising Deputy District Attorney Sean Daugherty and Deputy District Attorney Melissa Rodriguez, objected to the delay, saying the verdict had been rendered this spring and the defense had “three months to sort out these issues. This delay is excessive and unnecessary.”
“I agree,” Judge Smith said. “I was surprised that at a minimum the motion to reduce the sentence had not been filed. Yet, for Mr. Merritt the issue is Mr. McGee’s ability to participate in those motions and that is one reason for the delay. There is not an indefinite period that they get to do that. While regrettable, I think it is necessary.”
Judge Smith ordered the defense to have its motions filed by November 22 and a response from the prosecution to be filed by December 9. A hearing on the post conviction motions is to be heard on December 13 at 8:30 a.m.
As he took leave of the courtroom, McGee declined to provide any statement to the Sentinel with regard to what constituted the conflict.
After the hearing, an individual close to the defense told the Sentinel that McGee believed “heart and soul with no wavering” that the alternative suspect in the killings the defense had presented at trial, “Dan Kavanaugh, was involved directly or orchestrated the murders and that Chase had no involvement whatsoever.”
McGee had dedicated more than a year of his life to preparing for the trial and in representing Merritt during the trial, the individual said. “He was staggering under the workload and lack of pay. He has better things to do, now that the trial is over and it’s not his bailiwick anymore.” It was suggested to the Sentinel that McGee, who was a prosecutor for most of his career before becoming a defense attorney, may be contemplating a run for judge, and that is what the conflict stems from, as the 2020 election year is approaching.
-Mark Gutglueck