By Mark Gutglueck
The prosecution in the Charles Merritt murder trial this week rested its case, and the defense initiated the presentation of its witnesses and evidence.
On Tuesday, the prosecution, led by Supervising Deputy District Attorney Britt Imes, sought to go out with a bang, bringing in an expert on photometric analysis from outside of the country to salvage what otherwise would have been a gaping hole in its presentation.
That expert, Eugenio Liscio, was called upon by Imes to replace Dr. Leonid I. Rudin, whom the prosecution had thought it could rely upon to make a science-based identification critical to the case.
That identification pertained to the partial images of a vehicle caught on the security video at the home of Jennifer Mitchley, who in 2010 lived one door up and across the street from the McStay family home located at 3473 Avocado Vista Lane in Fallbrook.
Charles “Chase” Merritt is charged with the bludgeoning murders of the entire McStay family, including his business partner Joseph McStay, McStay’s wife Summer, and the couple’s two sons, four-year-old Gianni and three-year-old Joseph, Jr. Those deaths occurred, prosecutors allege, on February 4, 2010.
A key piece of evidence which the prosecution alleges places Merritt at the scene of the murders is Mitchley’s security video, positioned on her front porch, which showed the lower portion of a vehicle leaving the driveway of the McStay family’s home and heading out Avocado Vista Lane. That vehicle, prosecutors want the jury to conclude, was Merritt’s 2000 Chevy 350 truck.
Nine years and a day after the murders, on February 5, 2019 in what was the 15th day of the trial, during an evidentiary hearing that was, fortunately for the prosecution, conducted outside the presence of the jury, Dr. Rudin dashed the expectations of the prosecutors trying the case, consisting of Supervising Deputy District Attorney Britt Imes, Supervising Deputy District Attorney Sean Daugherty and Deputy District Attorney Melissa Rodriguez. The district attorney’s office had been banking on Dr. Rudin, one of the world’s leading photogrammographers, being able to offer testimony that would leave no doubt that Merritt was at the McStay residence that fateful night by testifying that it was definitely his truck caught on the video. Possessing a master of science degree in mathematics and a PhD. in photography, Rudin holds 31 patents relating to scientific data collection and is arguably the world’s leading authority on photographic analysis.
After applying his analysis of the video images and a three dimensional image made by Michael Russ, a San Bernardino County Sheriff’s Department’s scientific analysis division technician, using a laser scanner known as a FARO at the direction of San Bernardino County Sheriff’s Sergeant Ryan Smith, Rudin’s determination was inconclusive. During the evidentiary hearing held on February 5 of this year, Imes asked him what his conclusion was.
“The answer was we could not reject it [i.e., the hypothesis that it was Merritt’s truck seen on the video], but there was some guarded error that we derived,” said Dr. Rudin.
With the image of Merritt’s truck caught by the sheriff’s department’s FARO laser scanner at the same angle as the angle of the Mitchley video camera to the subject vehicle serving as the background of an image projected on the courtroom’s video monitor, a transparency of the Mitchley video was projected across the background during the February 5, 2019 hearing. When the moving vehicle’s image moved into position corresponding to the background image, the video was frozen, with that portion of the truck visible on the video superimposed over the three-dimensional model of the truck.
Rudin said, “I could not eliminate the model as corresponding to the vehicle captured on the video but could not make an identification that it was definitely the truck.”
Rudin further indicated that when his software program and equipment were utilized to take readings of the truck’s wheelbase, he received conflicting results, a discrepancy, he said, of “up to six percent in the worst case scenario and roughly 3 percent in the average scenario. No matter how we used that truck, we were getting plus-minus.”
A precise determination of the truck’s dimensions is critical to the case. Two sets of tracks were found at the site of the McStay family graves, one with a width measuring 73 inches, which roughly, according to prosecutors, matches the tire width of Merritt’s truck. The other set of tracks at the gravesite measured 76 inches across.
On February 5, 2019, Judge Michael A. Smith, over the defense’s objection, ruled that Rudin could testify. He was scheduled to do so on February 19, but that date came and went and he never appeared as a witness, quite likely because of concern that the defense would exploit statements he made during the February 5 evidentiary hearing to sow doubts in the minds of jurors that Merritt was at the McStay residence on February 4, 2010 as the prosecution contends. Last week, on Monday March 4, the prosecution instead elected to have Sergeant Ryan Smith testify with regard to his non-scientific observations and the conclusion he had personally reached that the image on the Mitchley video is a match to the Chevrolet work truck Merritt was driving in 2010.
This week, on the day it rested its case, the prosecution sought to bolster Smith’s testimony by having Eugenio Liscio, a leading 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, to replace Rudin.
Under direct examination by Imes, Liscio said that the low lighting conditions and low resolution of Mitchley’s video camera as well as glare from the bright lights of the vehicle limited his ability to make measurements down to a certain range. Nevertheless, Liscio testified, he found numerous similarities between the vehicle seen on the video and Merritt’s truck.
Liscio said “The headlamps are consistent with the 2000 Chevrolet truck” and that the headlight pattern of the 2000 Chevrolet matched up with the headlight pattern of the vehicle in the video.
“The bulk of the glare measurement on the Chevrolet truck in terms of the horizontal distance is like 47 to 68-69 inches, somewhere in that range,” said Liscio. The dimensions of the headlight pattern of the vehicle in the video was, Liscio said, “approximately 40 inches on the inside and then 70 inches on the outside.” Continuing, he said, “Similarly, there’s the height. So the lower and the upper parts of the glare, the headlamps in the vertical direction, they’re about 27.4 to 38.5. So the low end is 27.4 and the high end is 38.5 and then from the video we’re getting about 27 to 40. The range is obviously bigger where it cast a larger pattern, but from looking at it, aside from the numbers, you can see it falls within the range. So, the headlamps, in just looking at this, are consistent with the 2000 Chevrolet truck.”
Furthermore, Liscio said, the glare pattern off the bumper presented an opportunity for quantification. He said he placed lines on the FARO scan of Merritt’s truck and on a still from the video that followed the glare to find out “how high is that glare pattern off the ground, what range does it fall into. On the Chevrolet truck the actual measurement was found to be 26 inches.” He did the same on a frame lifted out of the video. “When we checked the glare in this particular frame, it goes from about 24-and a-half to about 26-and-a-half,” Liscio said. “So it changed and that could be because the vehicle… actually I looked at the vehicle. It doesn’t seem like older trucks to be perfectly straight or the bumper was hit or something. Different things can happen. Plus there’s a range of error here. I can’t get down to precise measurements. We’re down to the inch range, but I think, as you can see, it falls within that range. Once again… in my opinion the measurements show that it is consistent with what we’re seeing with [Merritt’s truck]. The 2000 Chevrolet Truck is consistent with what we see in the video.”
Turning to the back of the vehicle, Liscio said he compared a model of the shadowing or shadow pattern at the back of the vehicle on the ground created by the brake light of Merritt’s truck to the shadow pattern displayed on the ground beneath the vehicle that was present in the 3400 block of Avocado Vista Lane on the night of of February 4, 2010 which was caught by Mitchley’s video camera when the brake lights came on. “You’ll see that I’ve recreated the shadow in that area quite closely, like really, really close,” said Liscio. “Now, it’s not perfect. It’s not 100 percent perfect. There’s some little tiny things that are different, but the overall shape, scale and measurement is consistent with the outline and what is actually documented on the truck.”
Liscio said the tailpipe of Merritt’s truck matched up with the tailpipe of the vehicle seen on the video.
“In the last few frames when the brake lights go on, you can see there is a clear distinction between this bottom part of the vehicle,” Liscio said. “You have a space and then you have another space and then you start getting shadow or brown. And there’s this object that’s sticking out here. As you cycle through [the video frames] here, in this image it’s bent.” He then overlaid the FARO scan image of the back part of Merritt’s truck on the still taken from the video. “Now, when I take the vehicle and I superimpose it back into the position on the street, you’ll see that it lines up with what I call the dark object,” said Liscio. “It appears to be an exhaust pipe. We go back a couple of frames or through all the frames, we get the same thing.”
The exhaust pipe, which was much more clearly depicted in the FARO scan than in the frame from the video, had a slight bend to it. The exhaust pipe on the video, which was somewhat pixelated, roughly corresponded in shape to its counterpart on the laser scan.
“Again, we don’t have great video here,” said Liscio, “but you can still see the size, the position and the geometry is consistent with what we have on this 2000 Chevy truck.”
With regard to the profile of the vehicle, Liscio said, “The outline of the bottom of the vehicle seems to be consistent with the shadows and dark spots in the video.”
The match the prosecution wanted was threatened by what appears to be a light on the passenger side toward the back of the vehicle shown in the video. There is no such corresponding light on Merritt’s truck. As a witness called by the prosecution, Liscio engaged in an analysis that gravitated toward making the match. Ultimately, he found something upon which to explain away the presence of the light. Liscio used stop action on the video to show that as the vehicle moves forward, at one point the light begins to fade and then in a few frames disappeared altogether before gradually reappearing and growing brighter.
“That bright spot happens to coincide with a latch on the side of the vehicle,” Liscio said, referring to the handle/lock for one of the storage compartments mounted on the bed of Merritt’s truck. “The only thing I can say is it’s close to the latch, so it is not inconceivable that the latch could be causing some type of reflection. When the vehicle first comes into view, you can see it is bright. Then it keeps moving, it goes dim, and then it starts getting brighter again. Just before it exits the screen it gets bright again. So what could be happening here – there are other lights on in the street, a streetlight or house lights, things like that. And when it was farther away, there’s something shining on it that illuminates it and when it starts moving it moves out of the way of this light and it starts transitioning to – it gets brighter and brighter and brighter – so there’s another light that is illuminating it. So, it’s quite conceivable that’s what is happening. There are certain lights on the street that could cause that.”
Liscio enumerated some of those possible light sources, including a spotlight in the side yard of the house next to the Mitchley residence, a street light and a light on the Mitchley porch near the location of the security video camera.
“After conducting all of this analysis, what conclusions could you draw from the evidence that you were provided?” Imes asked.
“The first is the position of the headlights,” said Liscio. “The headlights on the 2000 Chevy truck is consistent with the position of the glare that we’re seeing in the video. That is consistent. The glare that we’re seeing off the bumper at the front of the vehicle: I compared the height of where those are located on the vehicle down to the ground, and that is also consistent with range we found on the 2000 Chevy truck. The other thing we found was the shadows at the back of the vehicle and how they make this specific shape, and I did it through a trace. I also did it through simulated lighting. That is still consistent with what we are seeing in the video. I also looked at the outline of the truck at the bottom and you can see that it falls very close to where the dark spot starts. In the portion where the brake lights come on you can see through that area. That also appears consistent. The exhaust pipe – that is consistent and I think I showed you that this illuminated spot appears to be a reflection. At least the spot appears where the latch is. That’s the closest thing it appears to. Based on that, all these features are consistent with the 2000 Chevy truck. Having said that, a truck that is similar to this one, so if it has the same configuration at the back – it has the brake lights at that spot; it has the same kind of bumper; it’s the same model truck – that could be consistent, as well. That’s possible. It would have the same geometry, the same features and everything else. So, I can’t make an identification with the evidence I have. I can’t go in and say, ‘Well, look, I can tell exactly it’s this 2000 Chevy truck. All I can say is this model truck that you have is consistent with all the features I’ve pointed out in the video.”
As Imes’ direct examination of Liscio was drawing to a close, it appeared as if the prosecution had managed to overcome in some measure the setback of not being able to rely upon the testimony of Dr. Rudin.
The momentum in the favor of the prosecution was short-lived, however, as Merritt’s defense co-counsel, James McGee, methodically dismantled Liscio on cross examination. Through a nearly three-hour back and forth, McGee went beyond simply questioning the witness’s conclusions, but discrediting him with regard to the selective nature of his analysis and his avoidance of evidence and data which controverted his findings. In addition to outright controverting two of the bases for Liscio’s matching of the characteristics of the vehicle seen on the video and Merritt’s utility truck, McGee was able to make a visual display for the jury that seemingly demonstrated the vehicle in question could not have been Merritt’s truck.
“Your last conclusion on your report is you can’t exclude my client’s truck?” McGee asked early in his cross examination.
“That is correct,” Liscio said.
“What are the factors or criteria for exclusion in your analysis?” McGee asked.
“The criteria we can see in the video, which was the headlight, the bumper, the exhaust pipe, the outline of the vehicle, the shadows,” Liscio responded.
Liscio’s use of the singular term “video” rather than the plural term “videos” would prove crucial in McGee’s impeachment of Liscio later in his cross examination.
“That’s for inclusion,” said McGee. “I’m talking about exclusion. What would you need to find to say, ‘We have to exclude a vehicle.’ What are the things you would look for, generally?”
“There has to be something grossly in error,” Liscio said, with error being used as a term to describe a discrepancy between the characteristics of the items or objects being compared. An obviously missing part could be grounds for exclusion, Liscio testified, but only upon the assumption that nothing had changed on the vehicle. “A missing part could be removed,” Liscio said. “It doesn’t mean it wasn’t there before.”
Liscio repeated his statement made under direct examination that he was limited in his analysis by the relatively poor quality of the video he had to work with, such that in making his comparisons to the much more precise and crisp images on the FARO scan the consistencies in the images he noted fell “within a reasonable margin of error.”
“What is your reasonable margin of error based upon a percentage of measurement?” McGee asked.
“There’s no answer for that question,” said Liscio. “You can’t just say ‘It’s two inches. If it’s two inches, I’m going to cancel everything out.’ No, because it depends on the quality of the video you have. What if you can only see one foot of resolution on the video? Then obviously my range has to go bigger than that. Your question – it’s too broad. It’s not fine enough. There are too many things. There are too many variables that you have to account for.”
Liscio insisted that all of the measurements he took were objective.
McGee moved through the various elements of Liscio’s testimony on direct examination in what was a first pass through of his conclusions without making any direct challenge of those findings initially, as if taking a survey of Liscio’s methodology and approach.
McGee’s first sustained intensified sally against Liscio’s credibility and the validity of his conclusions centered on his pronouncement that the headlights of the vehicle seen on Mitchley’s security video match the headlights of Merritt’s 2000 Chevrolet truck.
McGee pointed out that on the video “It appears that the headlights are wider than they are tall.”
“You mean the glare?” Liscio responded with a question.
“Yes,” said McGee.
“Yes,” said Liscio.
“And that would be consistent, since the height of the headlight was 7.2 inches and the width was 8.8 [inches], correct?”
“Yes, but it also depends on the shield, the housing, that it’s in, as well,” said Liscio.
“But that makes sense, since it’s a rectangular shape – that’s a horizontal rectangular – that matches the same size or shape of the headlights,” said McGee.
“Okay,” said Liscio.
“I calculated out the ratio,” said McGee. “That would be a four to five ratio, height to width. Would that be fair?”
“Of the actual measurements?” Liscio asked.
“Yes,” said McGee.
“That sounds fair to me,” said Liscio.
“Now the problem with this picture is if you take the headlights and the running lights together, they’re 11.1 inches tall, correct?” McGee asked.
“On the vehicle, yeah,” said Liscio.
“But only 8.8 [inches] wide,” said McGee. “That’s a five-to-four ratio in height, not width.”
“Um-humm,” Liscio acknowledged.
“Is that a yes?” McGee asked.
“The actual measurements on the vehicle, yes,” said Liscio. “Pertaining to the actual measurements, yes.”
When McGee pointed out that in Liscio’s circumscription of the headlights in his report, “You’re ignoring the running lights, correct?”
“Objection, argumentative,” Supervising Deputy District Attorney Britt Imes interjected.
“Overruled,” said Judge Michael Smith. “He can answer.”
“So, I’m not ignoring anything,” said Liscio. “All I’m doing is saying is these ellipses are what the light appears to be. You draw a circle around the glare, and then what I’m doing here is just looking at the vehicle and seeing how they compare from a different angle. I’m comparing the outline of the glare in the video to, and how they overlay, to the front geometry of the vehicle.”
McGee then displayed a frame taken from a video made by the sheriff’s department of Merritt’s truck that was made at night with the lights on in which the headlights were clearly distinguishable from the running lights, also referred to as parking lights, beneath them.
Liscio said the photo was taken from a point closer to the vehicle than the Mitchley security video camera was from the vehicle on Avocado Vista Lane the night of February 4, 2010, and that the equipment used in photographing Merritt’s truck was of a higher quality.
“If the resolution of the camera is much higher, then I’m going to get a lot more detail,” said Liscio. “If I have a [camera] that is 3,000 by 2,000 pixels, then I have tens of thousands more pixels to look at. If I take a security camera that’s 704 by 480 pixels, I have a lot less. So, you can see the effect here of how the glare is already blending in together. You don’t see a separation between the headlight and parking light. They start to blend together. So now we move back 40-50 feet and take a low resolution camera, and now take also into consideration that the combination of the sensor that’s on the mobile camera is probably a lot better than a cheap security camera, so the ability to detect the differences in lighting, the dynamic range of the sensor in a security camera is probably really poor, and this is much better. So, for all intents and purposes, this is a completely unfair comparison.”
“Did you include in your report how you are excluding the use of this video?” McGee asked, referring to the sheriff’s department high resolution video.
“I didn’t say anything about this video in the report,” Liscio acknowledged.
McGee then displayed on the courtroom’s overhead monitors for Liscio, the jury and courtroom observers a FARO scan image of the front of Merritt’s truck in which the wide and relatively short rectangular parking/running lights which extend further toward the outside edge of the front of the truck than the headlights were clearly distinguishable and visible as separated from the tall rectangular and less wide headlights above them.
“Is it clear from this image that the parking light on the passenger side wraps around the side a little bit?” McGee asked.
“On the passenger side at this distance in this photograph you can see it does extend further,” said Liscio. “On the other side, if you look at the driver’s side, it doesn’t appear to do so as much.”
McGee then displayed on the courtroom’s monitors a still frame taken from the Sheriff’s Department FARO scan of Merritt’s truck above a still from the Mitchley surveillance video in which the headlights were shown to taper slightly at their respective bottoms.
“Let’s start with the driver’s side,” said McGee. “On the driver’s side, on the bottom it [the headlight] rounds in, correct?”
“Yes,” said Liscio. “It does.”
“And it goes down to a shorter distance on the bottom than it does in the middle and on the top,” said McGee.
“Sir, I have to say this,” Liscio began. “You are comparing two images that are completely different, so I’ll answer your questions, but just understand that this is not a fair comparison. You’re comparing apples to oranges here.”
“Your Honor, I would object as non-responsive and move to strike,” said McGee.
“Overruled,” said Judge Smith. “He can explain his answers.”
“My question was simple,” said McGee, “In the bottom picture of the headlight on the driver’s side, does it become more narrow than it is in the middle and the top?” McGee’s question focused on the still frame taken from the Mitchley video.
“Yes,” said Liscio.
“Now, the picture on the top, you can see the headlight start to bend in like it is more narrow, but then there is a parking light that bumps back out, correct?” McGee asked, his question referencing the FARO scan image of Merritt’s truck.
“Yes, and if you’re trying to compare the two images, it’s an unfair comparison,” said Liscio.
“Let’s go to the passenger side,” said McGee. “Again the bottom rounds in, correct?” McGee queried.
“Yes,” said Liscio.
“And the bottom left part of that is further in than the side of the light,” said McGee.
“Objection, that calls for speculation, is not relevant, given the previous answers of the witness about the comparison,” Imes said.
“Overruled,” said Judge Smith. “He can answer.”
“In this frame, yes,” answered Liscio.
“But on that picture above, with that parking light wrapping around, it sticks out significantly, it would be fair to say, yes?” McGee prompted the witness.
“I don’t know what you mean by significant, but again, you are comparing two images,” Liscio said. “I agree with you. It’s sticking out in a completely different image.”
“I agree,” said McGee. “We’re comparing two separate vehicles. I get that.”
“No, you’re comparing images of two separate scenarios,” said Liscio. “Again, you have a different camera. You have a different position close to the vehicle. Those all change what you are seeing and the clarity in which you can see it.”
“You’re saying there’s no way that parking light would ever show up on that security video?” McGee asked.
“Objection, argumentative,” Imes protested.
“Overruled,” said Judge Smith.
“It may or it may not,” said Liscio. “What I am saying is what you are showing me right here doesn’t. And the way to do that would be to do a test. Drive the vehicle by, and I don’t know if the same camera’s still in existence, but drive the vehicle by at night and see what you get. That would be a very fair test.”
“So, when you saw this video and said ‘That’s not a fair comparison because it’s not the same camera,’ did you say, ‘Sheriff’s Department, DA: Do a proper comparison. Go down and drive that truck at night in front of that camera’?” McGee asked.
“Objection!” Imes thundered. “Argumentative.”
“Sustained,” said Judge Smith.
“Did you ask for a fair comparison?” McGee persisted. “You say this is not representative.”
“Objection,” Imes said. “Assumes facts not in evidence.”
Sustained,” said Judge Smith.
“Did you ask for this truck to be driven in front of the camera at night?” McGee tried once more.
“Objection,” Imes said, unwilling to relent. “Assumes facts not in evidence, that the camera exists or can be recorded in the same fashion.”
“Overruled,” said Judge Smith. “He can answer if he made such a request.”
“I did not ask them to go drive the truck, no,” said Liscio.
“You’re not willing to say the running lights are missing on the security camera video” McGee said.
“What I’m saying is it’s quite likely that it’s not detectible,” said Liscio. “It may be on and we can’t see it or it may be off and that’s why we don’t see it or it could be a different vehicle. So there’s different scenarios there.”
“There was testimony from Sergeant Ryan Smith that said, ‘The running lights cannot be turned off…’” McGee began, but was interrupted by Imes’ objection.
“Objection, argumentative,” Imes interrupted.
McGee’s reference was to Sergeant Smith’s testimony that when the headlights in Merritt’s truck were turned on, the parking/running lights automatically turned on as well, such that the headlights could not be illuminated without the running/parking lights being actuated.
Judge Smith overruled Imes’ objection and McGee attempted to continue with his question.
“So, it’s either A, not detectible, or B, not the same vehicle…” McGee started.
“Objection,” Imes broke in. “That assumes facts not in evidence, such as a bulb being burned out.”
“Overruled,” said Judge Smith.
Liscio, unfamiliar with Sergeant Smith’s testimony, was thus trapped by McGee into a tacit acknowledgment that the tall rectangular headlights which narrowed toward the bottom on the video either did not match the wide rectangular headlights on Merritt’s truck or that the video was of such a decidedly poor quality that any conclusions based upon it were unreliable.
McGee took up the issue of the light visible on the passenger side toward the back of the vehicle seen on the Mitchley video.
Referencing Liscio’s report, McGee said, “You said, ‘There’s a small reflection or illuminated spot which appears on the side body of the vehicle in the video. It is difficult to say where the source of the illumination originated from but this spot lines up most closely to one of the handles on the rearmost passenger side compartment.’ Correct?”
“Yes,” said Liscio.
“And you’re saying ‘It’s not a light.’ Right? It’s a reflection?” McGee asked.
“I’m calling it an illuminated spot,” said Liscio. “It doesn’t appear as a constant light.”
“You’re not saying it’s a light but a reflection illumination,” said McGee.
“That’s what I’m saying because there doesn’t appear to be any lights on the end of the vehicle in that position,” Liscio said.
“And you’re aware that the latch is made out of non-reflective metal,” McGee said.
“That assumes facts not in evidence that it is, in fact, non-reflective metal,” Imes said.
“Overruled,” said Judge Smith.
“I don’t understand what you mean by non-reflective metal,” said. Liscio. “What does that mean?”
“It’s not chrome or anything that’s going to shine brightly,” said McGee.
“Let’s just be clear here,” said Liscio. “If it’s metal, if it’s painted or not painted, it will reflect light.”
“So if the light is reflected, then the light has a source,” said McGee.
“Yes,” said Liscio.
“If you know the shape of the object reflecting it, you should be able to trace it to the source, right?” McGee asked.
“One would think so,” said Liscio. “If you had an accurate account of the geometry of the object, it might be possible.”
While the court went into a 15-minute recess, Liscio undertook to use the software on his laptop computer to recreate what the light source was. Upon the jury’s return, Liscio said the sole determination about the source of the light he was able to draw was that it was on the same side of the street as the Mitchley video camera.
Using a still from the FARO scan that was displayed on the courtroom’s overhead monitors, McGee pointed out and had Liscio confirm that there was another latch identical to the one Liscio theorized was the reflective surface on the side of the vehicle further toward the middle of the vehicle on the same side. The second latch was for the forward storage compartment on Merritt’s utility truck and it was positioned roughly five feet in front of and at the exact same height as the rearward latch Liscio theorized might be the source of the reflection seen on the video.
“So,” McGee asked, “if the two latches are in the same direction, same height, same closed position, should they not both show an illumination from that light source?”
“Not necessarily,” Liscio said. “I don’t know, because I don’t know what the light source is.”
McGee then played the Mitchley security video, which showed the vehicle progress from left to right across the visual field of the street in front of the Mitchley residence. McGee, for a period, put the video on loop mode, allowing the jury and court observers to see the video snippet over and over again. He stopped the video at certain points to display the illuminated spot, driving home the point that at no time did a spot forward of where Liscio theorized the back compartment latch to be located – one corresponding to the latch on the storage compartment in front of the rear storage compartment – ever illuminate. This cast a pallor of doubt over Liscio’s stated theory that the illuminated spot on the vehicle was not a light but rather a reflective surface. No such light is present on Merritt’s truck.
McGee then moved on to a demonstration that effectively discredited the entirety of Liscio’s assertion that Merritt’s truck could not be excluded as a match to the vehicle captured in the February 4, 2010 drive-by on the Mitchley video.
Previously during his cross examination of Liscio, McGee was able to get the witness to identify the height of the top of the taillights of Merritt’s truck as being 60.1 inches from the ground and the bottom of the taillights being 54.6 inches from the ground. Liscio, in response to McGee’s questions, stated that on the opposite side of the vehicle the top of the headlights were 38.5 inches above the ground. McGee had Liscio acknowledge that the vertical difference between the height of the top of the headlights and the height of the bottom of the taillights was 16.1 inches.
Also earlier in his cross examination of Liscio, McGee had zeroed in on a GoogleEarth shot of the 3400 block of Avocado Vista Lane in Fallbrook where the McStay family and Michley had lived in February 2010. That GoogleEarth depiction, which Liscio had included as part of his report, offered a bird’s-eye view of the McStay and Mitchley residences, on opposite sides of the street and roughly a door to a door-and-a-half up or down from each other.
“On that GoogleEarth, one thing you found important to mark was the front porch camera and where it’s located and where its pointed, correct?” McGee had asked at that point.
“Yes,” said Liscio.
“Why didn’t you list the side camera on the side of the house?” McGee asked.
“It wasn’t important for my analysis,” Liscio said.
“So you ignored it,” McGee said.
“Well, there was nothing for me to look at,” said Liscio.
“We’ll come back to that,” McGee promised.
Indeed, after McGee had punctured Liscio’s credibility with regard to the Canadian scientist’s assertion that what appeared to be a light on the side of the vehicle seen in the video was not a light but a reflection, he returned to the Mitchley side yard video camera and what images it had captured.
McGee played on the courtroom’s monitors the brief passage of video footage recorded not by the video camera on Mitchley’s porch but by the video camera on the side yard of the Mitchley residence, which was closer to the McStay’s residence than the porch video. Shot from a higher position than the porch video and at a slightly more downward angle, the side yard camera’s visual field caught even less of the street than its porch-based counterpart, so that even less of the top portion of the vehicle is captured on that video than the one Liscio chose to concentrate on. Nevertheless, because the side yard camera was laterally angled slightly rightward with regard to its orientation toward the street while the porch camera was laterally angled slightly leftward with regard to its orientation in relation to the street, the side yard camera offered a fuller perspective on the back of the vehicle as it drove past the Mitchley residence, traveling left to right from the cameras’ perspectives.
“Can you start to see the beginning of the vehicle pulling out of the driveway from that angle?” McGee asked.
“I can see some lights moving in the front there, so now I can see it turning,” Liscio said. “It’s a vehicle, um-hmm.”
What appeared to be taillights on the vehicle were visible at a height roughly equivalent to the headlights.
Liscio had already testified that the FARO scan of Merritt’s truck documented that the bottom of its taillights were at a height of 54.6 inches from the ground, 16.1 inches above the level of the top of the headlights, at 38.5 inches above the ground. It was thus apparent from the side yard video that the vehicle passing in front of the Mitchley house, with its taillights at an approximate height of 33 to 39 inches above the ground, did not match Merritt’s truck.
After running the side yard video once, McGee said, “Watch it again,” and he played it once more.
“That’s the headlights, right?” he said as the car could be seen coming away from the McStay family’s driveway and then straightening itself into alignment to head down the street.
“Um-hmm,” said Liscio.
“Is that a yes?” McGee asked.
“Yes,” said Liscio. “That’s the headlights, yeah.”
“And then,” said McGee, “a taillight, right? Nice and bright.”
A look of abject terror momentarily registered on Liscio’s face, but he quickly recovered his outward composure as he labored to maintain his equanimity. “Why is it a taillight,” he asked, nonchalantly.
“It’s nice and bright,” said McGee. “That’s what you said you wanted to see. Bright and constant from the side, correct?”
Liscio sat silent on the witness stand, struggling for a response.
McGee played the video once more.
“Is that not the bright and constant that you said you wanted to see to determine that’s a taillight?” McGee asked after a 20 second pause between his last having asked the question.
At last, Liscio said, “I don’t think you can say that’s a taillight from what you’re pointing out to me in this video.”
“No?” said McGee, with incredulous affect.
“No,” said Liscio.
McGee asked if Liscio was not evincing confirmation bias, which is defined as the tendency to interpret evidence as a confirmation of one’s existing beliefs or a priori conclusions.
“No,” Liscio responded. “Actually, what you’re saying is it is a taillight, and I’m saying that you can’t tell from the video whether it is or it isn’t.”
“So, you’re just going to find whatever evidence that matches the theory that you want to reach, and you’re going to say that’s a latch, it’s not a light, right? McGee began
“Objection, argumentative,” Imes said.
“Objection sustained as argumentative, and it assumes facts not in evidence,” ruled Judge Smith.
With the video on loop mode and playing over and over again on the courtroom’s monitors, McGee asked “Why won’t you say this is a taillight?”
“It’s not what I can or can’t say,” Liscio said. “It’s what the evidence can show. And sometimes the evidence can only take you to a certain point. And right now the evidence can only take me to a point where I can say it’s an illuminated area. It behaves differently in the other video. You have one angle here where you’re not capturing many frames and, again, looking at it from the other angle, it behaves differently.”
Liscio, keying off of McGee’s reference to the latch, blurred the distinction between the taillight and the side panel light. “So, all I can say is it’s illuminated, it lines up with the latch, I don’t know what it is other than that is the closest we can get,” he said.
With the side yard video loop yet playing, McGee asked, “Now looking at this video, seeing it drive by, do you still stand behind your statement earlier that you made on cross [examination] that there was nothing important in this video for your analysis?”
“So, if you were to hand me this video and I had absolutely no context, so you say ‘There’s a light here,’ whatever, I would tell you the same thing I’m telling you now. I don’t know,” Liscio insisted.
“Yeah but so, you have context,” said McGee. “You have a video angle. You have lighting circumstances. You could have joined these two cameras together, right, and show where all this lights up where the vehicle is and show how these two interlace with one another and say, ‘Hey, look, here’s how they kind of match up.’ Right?”
“So, the reason I didn’t use this video is I don’t have anything to do any measurement or alignment from,” Liscio said. “There’s such little to work with here. And so, I just want to say again I don’t know.”
At that point, Liscio unraveled further, retreating once more toward merging the taillight with the illumination on the side panel. “Again, I just want to say that I don’t know. I know you want me to say it’s one or the other. I’m being honest. I don’t know what it is, other than that it is an illuminated spot [that] aligns with the latch when I did the reconstruction.”
“Let’s be clear,” said McGee. “If that’s an actual taillight, that’s not my client’s vehicle, right?” McGee asked.
“Objection,” said Imes. “That calls for speculation.”
“Sustained,” said Judge Smith.
“If that is a taillight,” said McGee, “that does not match the characteristics of the 200 Chevy 350 that you analyzed,” said McGee.
“Objection,” Imes said. “That assumes a lot of facts not in evidence and misstates his testimony.
“Overruled,” said Judge Smith.
“Again, what you’re saying is if that’s a different vehicle then it’s not the same vehicle,” Liscio said circuitously. “I think I said that there are other vehicles that could be or fall into this category, so vehicles of a similar nature, same form, geometry, same box at the back. If there is one that had exhaust pipe and brake lights and headlights and bumper, and somebody put a side light on there, that is possible. And it’s possible it’s another vehicle. So, I’m not saying that this is your client’s vehicle. All I’m saying is that the vehicle in question is consistent with my report and that if there’s another vehicle that looks similar, that is possible. I can’t make an identification and say it is.”
During his testimony, Liscio provided a statement, extrapolated from his report, that is likely to prove problematic for the prosecution on another score, one unrelated to the Mitchley video.
According to the prosecution, after murdering the McStay family using a three-pound miniature sledgehammer on February 4, 2010, Merritt transported the corpses up into the desert north of Victorville and southeast of Oro Grande and crudely interred them along with the sledgehammer in two shallow graves in the area accessed by a dirt road off of the I-15 Freeway and Stoddard Wells Road on February 6, 2010. On February 6, 2010, 1.1 inches of rain fell in the area around Victorville, and two sets of vehicle tracks, each leading to the side of the two six-foot-long, two-foot-wide and 18-inch-deep graves were yet grooved into the desert floor when the bodies were discovered in 2013. Investigators took measurements of those tire grooves at the time. The width of one of those sets of tracks, from the outside edge to the outside edge of the tire indentations was 73 inches. The other tire track width was 76 inches. It is the contention of the prosecution that that the 73-inch set of tracks is another indication that Merritt is the murderer. The prosecution maintains the width spanning the outside edge to the outside edge of the tires on Merritt’s truck is 73 inches.
McGee asked Liscio, “You also measured the outside wheel width from one edge of the tire to the other edge of the tire, correct?” McGee asked.
“Yes,” said Liscio.
“And what was the distance there?” McGee asked.
“The outer was 71-and-a-half,” said Liscio.
“Not 73,” said McGee.
“Depending on where you take it, again, this is just a rough measurement,” said Liscio. “So, if the tire, you know, if somebody took it from the edge of the tire, it was flatter or less air, it could expand another inch or whatever at the sides. We roughly got 71-and-a-half, so that’s what I have.”
After Liscio concluded his testimony, for which he was provided $4,000 to cover his time on the witness stand in addition to the $10,000 he was paid for his report, he was dismissed without being subject to recall, and was free to make his way back to Toronto.
At that point, subject to the entering of further prosecution exhibits that have not yet been filed with the court, the prosecution rested.
The defense began putting on its case the following day. It began on Wednesday morning with Merritt’s 24-year-old daughter, Sara Taylor Jarvis, followed by her mother and Merritt’s common law wife, Catherine Jarvis, who has lived separately from Merritt since 2011.
Sara Jarvis’s value to the defense in large measure consisted of her having been in a position, when she was 15 years old, to have witnessed a quarrel between her mother and father over Merritt having failed to answer a phone call from Joseph McStay on the evening of February 4, 2010. That call, placed at 8:28 p.m. was the last call ever made from Joseph McStay’s cell phone. That phone call took on significance in the light of subsequent events and has been a recurring topic and issue during the trial.
Sara Jarvis’s testimony supports the version of events offered by her mother, to the effect that Merritt was at or around their Rancho Cucamonga residence at the Homecoming apartment complex on Church Street the evening of February 4, 2010.
Earlier that afternoon, Merritt had met with Joseph McStay at a Chick-fil-A fast food restaurant in Rancho Cucamonga. The prosecution alleges that McStay had confronted Merritt at that meeting about Merritt having fraudulently accessed McStay’s business account and embezzling $4,995 by writing fraudulent checks to himself from it. Later that afternoon and into the evening, according to the prosecution, Merritt shut off his cell phone so his movements could not be tracked and he drove down to the McStay family residence where he killed his business associate and his family.
On the witness stand, Sara Jarvis testified that she recalled her father and McStay partnering when she was 11 or 12 years old to construct large-size custom water features, including fountains and artificial waterfalls. Her father designed and built the metal, glass and rock structures based upon specifications provided by McStay in accordance with the orders for the product from customers. She said that shortly after her father made McStay’s acquaintance McStay had become “my dad’s business partner and his best friend.”
Under direct questioning by Merritt’s co-counsel, Rajan Maline, Taylor Jarvis recalled her parents getting into a spat the night of February 4, 2010 over her father not answering an incoming call from McStay. She told Maline the call came while the family was at the Rancho Cucamonga apartment complex where they lived at the time.
Her father’s failure to answer the call became a larger issue shortly thereafter when her father was unable to contact McStay, she said. The minor disagreement the night of February 4 “turned into less of an argument and more of” consternation on her mother’s part when, she said, “the next day my dad couldn’t get a hold of Joseph. In the subsequent days the conversation turned more to my mom saying, ‘Now you can’t get a hold of Joseph.’ As time went on, it became, ‘What if that was an emergency call or a call for help?’”
The prosecution in its cross examination of Sara Jarvis, carried out by Deputy District Attorney Melissa Rodriguez, sought to portray the witness as someone whose affection and loyalty to her father compromised the truth and accuracy of her testimony.
When Sara Taylor was pressed about the February 4, 2010 phone call, she acknowledged that she had not herself seen the call when it came in, but that it lodged in her memory because of the argument it provoked and the aftermath, which involved her father trying to call McStay later, to no avail.
Rodriguez also sought to elicit from Merritt’s daughter an admission that her father, from his jail cell during the latter stages of his more than four years of incarceration and particularly since his trial has begun, attempted to influence her testimony.
“You had several conversations with your dad after trial started, right?” asked Rodriguez.
“Correct,” said Sara Jarvis.
“And he talked about evidence that was presented during trial, right?” Rodriguez continued.
“Um-humm,” said Taylor Jarvis.
“And he talked to you about phone towers, right?” Rodriguez said.
“Yes,” said Jarvis.
“He specifically told you about the need to be at home on the night of the fourth [February 4, 2010] because his phone was pinging off a tower in the Riverside area,” said Rodriguez. “Do you recall that part of the conversation?”
“I don’t know he said he needed to be home, but I remember talking in general about the phone towers,” said Sara Jarvis.
“And your dad talked to you about the financial aspect of the case as well, right?” asked Rodriguez.
“Sure,” Jarvis responded.
“And he talked about whether you were going to be called as a witness to testify, right?” the deputy prosecutor asked.
“Yes,” said Taylor Jarvis. “I didn’t know if I was.”
“And your dad talked to you about what he wanted you to testify to, right?” Rodriguez probed.
“No, not that I recall,” Sara Taylor Jarvis said.
“You went to visit your dad, right?” Deputy District Attorney Rodriguez asked
“Yes,” said Jarvis.
“And at some point when you talked, you talked through the glass,” said the deputy prosecutor, referring to the plexiglass partitions in the visiting booths at the West Valley Detention Center.
“Yes,” said Sara Taylor.
“And you were made aware at some point your dad’s visits through the glass were being recorded, right?” Rodriguez asked.
“Yes,” said Taylor Jarvis.
“And that was after you had gone to visit your dad and in those visits you talked about the case through the glass, right?” the deputy prosecutor asked.
“Yes,” said Jarvis.
“After you found out they were being recorded, you stopped talking about the trial, basically, through the glass, right?” Rodriguez asked.
“I’d say that’s accurate,” said Sara Jarvis.
“So you talked about what you were going to have to testify about, right?” Rodriguez asked.
“Yes,” said Sara Taylor.
“So, you talked to your dad about different things you might be asked about, right?” asked Rodriguez.
“Well, just it was…” Taylor Jarvis began.
“Just a yes or no question,” Rodriguez barked. “Did you talk to your dad about things you were going to testify about?”
“I only saw one thing you showed me,” said Jarvis, referencing a transcript of a recording of her jailhouse exchange with her father she had been provided with by Rodriguez.
“And your dad talked to you, in addition, about the pseudonym that you heard about, right?” Rodriguez asked. “Him searching for a pseudonym?”
“Yes,” said Taylor. “I think so.”
“So, even if you weren’t here in court, you’ve been privy to everything that’s gone on during trial, right?” the deputy prosecutor asked.
“I would hope so,” said Sara Jarvis. “I mean, it’s my family that’s going through this.”
“But you knew that you could potentially be called as a witness in this case, right?” Deputy District Attorney Rodriguez asked.
“Yes,” said Sara.
“And so you were still talking to your dad about different testimony that had occurred in court, right?” Rodriguez asked.
“Yes,” said Jarvis.
“And in fact you testified about events that occurred when you were approximately eleven to twelve years old until the time you were fifteen, back when the defendant worked for Joseph McStay, right? Rodriguez asked.
“Correct,” said Sara Jarvis.
“And would it be fair to say an eleven-year-old isn’t super-involved in the business aspect of things?” Rodriguez asked.
“Yes. That’s fair,” responded Sara Taylor.
“And so you have some pretty detailed information about that now, though, right?” the deputy prosecutor asked.
“More detailed than I had, but I still don’t know too much,” Taylor Jarvis responded.
While questioning Sara Jarvis, Rodriguez brought up the subject of her father’s work with Keene Engineering, with whom he was employed in the years after the McStay family’s disappearance. Rodriguez took the opportunity to display for her, the jury and courtroom observers photos of her father in what appeared to be a desert setting as he was involved in excavating earth.
Rodriguez asked Sara Jarvis about her father’s work with Keene Engineering, prompting a response that she was not too familiar with what he was doing at that time because she had already moved out of her parent’s house and that she had only seen drawings of what her dad was working on.
“You were aware though that he was involved with making machines that would be able to mine for gold, right?” Rodriguez asked.
“Yes,” said Sara Jarvis.
Two of the photos pointedly showed Merritt, clad in a T-shirt emblazoned with the Keene Engineering Logo across the back, in a hollow that was dredged out from the desert floor. For at least some courtroom observers, and very possibly for some members of the jury, those photos conjured the conception of the fashion in which the McStay family had been buried in the area north of Victorville and southeast of Oro Grande. One of the photos showed Merritt looking up toward the camera as he was standing in what appeared to be a trench at least one-and-a-half times as deep as the relatively shallow 18-inch deep graves the McStay family was buried in.
Sara Taylor evinced a steely resolve in the face of Rodriguez’s questioning, maintaining her equanimity and not allowing herself to be provoked by the deputy prosecutor’s harsh characterizations and insinuating suggestions, and at no point responded in kind.
It was only during Maline’s more gentle questioning on redirect examination that Taylor Jarvis made a showing of emotion. When Maline asked her why her family had discussed the case in jail meetings, Jarvis uttered “Our whole family is part of this,” and at that point grew lachrymose. After she recovered, Maline asked her, “In the entire four-and-a-half-year period that you have been visiting your dad, has he ever once told you to lie for him?” Maline asked.
“No.” Jarvis said, indicating the facts being what they are, no misrepresentations were necessary.
“I don’t have any reason to lie for him,” she said.
Following her daughter to the witness stand was Catherine Jarvis.
Merritt’s common law wife and the mother of his three children, Catherine Jarvis was listed as a prosecution witness, but was never called during the case Imes, Rodriguez and their colleague, Supervising deputy District Attorney Sean Daugherty put on during the accusatory phase of the trial that began with opening statements on January 7, consisting of 28 days in trial, 27 of which were before the eight-woman/four man jury and their six alternates, with one entire day outside the jury’s presence for an evidentiary hearing. Anticipating that the defense would call her as a witness, the prosecutors made a decision to use the opportunity that would provide them to wring from her under cross examination everything that would have otherwise been achieved by questioning her during direct examination, while at the same time deriving the extra benefit of being able to untrack the defense and interrupt its intended focus and progression by redirecting the jury’s attention to the gravamen of the prosecution’s contentions.
Thus, Rodriguez was in essence lying in wait for Jarvis. Before the deputy prosecutor could effectuate that ambush, however, she had to abide while Maline carried out his direct examination of the witness.
In testimony that echoed that of her daughter’s, Catherine Jarvis testified that Merritt, whom she characterized as “very creative,” had progressed to manufacturing water features after fabricating “metal art” and terracotta pots. She said she had assisted him when he started manufacturing artificial waterfalls, which were built in an enclosed porch area next to the driveway of the house in San Dimas where they then lived. She said that Merritt had started modestly, specializing in a relatively uncommon if not unique type of hanging waterfall that found a small niche and was marginally successful, selling the product at home and garden shows. He eventually expanded from a home-based business to one which operated out of a small shop in San Dimas, she said, and moved to a larger shop in Pomona. She said it was at that time that her husband made the acquaintance of Joseph McStay, who was then selling prefabricated waterfalls on his website. Shortly thereafter, she indicated, her common law husband and McStay “were doing business together.” Joseph’s operation thereupon progressed from the simple plastic, metal and glass waterfalls he was marketing before he met Merritt to ones built to order and specification by Merritt, Catherine Jarvis testified. “The custom orders started taking up more of Joseph’s business,” she said. By 2007 and 2008, she said, their shared enterprise was expanding. “It was steadily moving up,” she said. “They were starting to do a lot more volume, or not just volume, but more expensive waterfalls.”
“And they became very close,” said Maline. “Is that right?”
“Yes,” said Jarvis.
“You say they became friends?” Maline asked.
“Yes,” said Jarvis.
By that time, Jarvis said, she was no longer involved in the water feature operation.
“We kept butting heads about how best to take care of customers and get orders out,” she said. “I thought I was right and he thought he was right. It was causing too much friction.”
“Did you guys have disagreements upon how the business should be run?” Maline asked.
“Yes,” said Catherine Jarvis. “Definitely.”
“Who was the more fiscally responsible person?” Maline asked.
“Me,” said Catherine Jarvis.
“So, his skill did not lie with the management of money, I take it,” said Maline.
“His focus was on the waterfalls,” said Catherine Jarvis.
“He was very artistic,” said Jarvis. “He was very creative. He could build anything. He was a hard worker and that’s what he spent most of his time doing.”
Subsequently, Jarvis said, Merritt moved his fabrication operation from Pomona to Claremont. In the same timeframe, Jarvis said, she, Merritt and their family moved to Rancho Cucamonga into a home on Filkins Avenue, which they were renting to buy. When that fell through, she said, they moved into the Homecoming apartment complex in Rancho Cucamonga in 2009. While they were living at the Homecoming apartments, they did not have television and internet service, Catherine Jarvis testified, and so the family often made use of the complex’s clubhouse which had a business center with computers, printers, and fax machines, in addition to recreational amenities including pool tables, a movie theater and a gym, as well as a pool and barbecues nearby. She said that Merritt made use of the business center frequently and the children were often in the clubhouse as well.
“He did go there to make copies and use the fax machine and computers a lot,” she said.
The computer in the clubhouse was on a “hard wire” system, she said, so access to the internet was reliable there. But cell phone reception there was another matter, she said.
“If you had to drag your kids out of there or get Chase’s attention if he was there to get him home, how would you communicate?” Maline asked her. “Would you walk over to the clubhouse or would you call?”
“Most oftentimes it would be easier just to call if I could,” she said. “A lot of times I couldn’t get a hold of them that way, so I would end up walking over there, and seeing what they were doing or when they were coming home.”
“And why was it difficult to sometimes call?” Maline asked.
“I don’t know,” Catherine Jarvis answered. “It just was bad reception.”
She testified that after the family’s move to Rancho Cucamonga and out of the San Dimas operation, she and the rest of the family saw less of Joseph McStay, but that she, Merritt and the children still had occasional contact with McStay, mostly by going out to dinner with him.
“Do you recall at some point Joseph and his family went missing?” Maline asked.
“Yes,” Catherine Jarvis said.
“Do you recall approximately when that was?” Maline asked.
“February of 2010,” she responded.
“Just prior to that, in January, the end of January, did you have an occasion to have one of these dinners with Joseph?” Maline asked.
“Yeah, I believe so,” Catherine Jarvis responded. “They were talking about some new projects that were coming up, and they were some big projects. So, Joseph was really excited about them, and he was almost giddy. He was talking about the Saudi Arabia project.”
The Saudi Arabia project, which at other times was referred to as the “Dubai project,” was the largest and most lucrative undertaking yet for McStay’s company, known as Earth Inspired Products.
“Do you recall the last day that Joseph had contact with Chase?” Maline asked.
“Yes,” said Catherine Jarvis.
“When was that?” asked Maline.
“The Fourth of February ,” Catherine Jarvis said.
“And on the Fourth of February, do you recall, did Chase go to work that day?” Maline asked.
“Yes,” said Jarvis.
“Do you know what Joseph did that day or whether he saw Joseph that day?” Maline asked.
“He went to work in the morning and he said he was on his way to meet Joseph for lunch and pick up checks,” Catherine Jarvis said.
Jarvis said he returned home with checks later that day. Jarvis testified that McStay occasionally gave Merritt blank checks so he could pay for materials and vendors relating to the water feature construction business. Jarvis said Merritt also used cash in paying for materials and services relating to those manufacturing efforts. Jarvis said that because of a bankruptcy, she and Merritt often dealt in cash.
Jarvis said that Merritt was gone from their residence during the daytime on February 4, 2010, but that he returned while it was yet daylight. To Maline’s question, she said Merritt was home “in the evening. I think he was home that day earlier than usual, maybe 5 [o’clock]. It was still light outside.”
Maline asked if Merritt was in the clubhouse that day. “Specifically, I don’t remember for sure if he went to the clubhouse, but he was home in the area that day,” she said.
“Was there a phone call that Chase received in the evening hours?” Maline asked.
“Yes,” Catherine Jarvis said.”
“Do you recall when that was?” Maline asked.
“It was after dark,” Jarvis responded. “Around 8 o’clock.”
“And do you know who the call was from?” Maline asked.
“Yes,” said Jarvis.
“Who?” asked Maline.
“Joseph,” Catherine Jarvis said.
“And how do you know?” Maline asked.
“It said on Chase’s display who the call was from,” she said.
“Now, did you see that?” Maline asked.
“Yes, I did,” Catherine Jarvis said.
“Did Chase answer the phone?” Maline asked.
“No, he did not,” Jarvis said.
“Did you respond in any way after you saw Joesph’s name pop up and you see Joseph not answer it?” Maline asked. “Did you say or do anything?”
“Yes, we proceeded to get into a little bit of an argument about him not answering his phone,” she said.
She said, “I told him it was Joseph calling.” She said Merritt told her “’I already saw him and I’ll call him tomorrow.’ And then I was like, ‘Well, he’s calling, and it’s evening. Shouldn’t you answer the phone? He probably called for a reason.’ And he just didn’t answer.”
She said Merritt never heard from Joseph after that.
Jarvis recollected that two detectives from the San Diego Sheriff’s Department came to their home to speak with Merritt about the McStay family’s disappearance. She remembered that as happening “three or four weeks” after Joseph went missing, though previous testimony in the trial indicated it occurred on February 17, 2010.
Catherine Jarvis said Merritt’s failure to take Joseph’s call came to be an item of discussion and bone of contention between them in the days and weeks that followed. After Merritt was not able to reach McStay, she said, “He said he was going to drive down to Joseph’s house and check on him.” After Merritt did so, she said, “Eventually he got a hold of the family and he told me he was going down there and he was going to meet his brother there and they were going to try to get in the house to see if there was any evidence of them being gone somewhere and having taken a vacation somewhere without telling anyone.”
Jarvis said that Merritt and McStay, prior to the disappearance, “talked everyday, ten, fifteen times a day, constantly.”
“Do you know if Chase notified the police?” Maline asked.
“He did not,” Jarvis said.
“Did you talk about that with Chase?” Maline asked.
“Yes,” Catherine Jarvis answered.
“And when did you have that discussion with Chase?” Maline said.
“It was in the days he couldn’t get a hold of him,” she indicated. “I said, ‘Why don’t you contact the police?’ and he was like, ‘Let’s wait until after the weekend’ and ‘Maybe they just went on vacation and didn’t tell anyone. They just took off someplace’ and ‘I’ll see if I can get a hold of the family and see if they know where he is’ and, you know, ‘Let’s not just jump the gun.’”
Jarvis said that by June 2011 she and Merritt were no longer living together.
In 2013 she said she was still in contact with Merritt though not living with him when the remains of the McStay family were found. She said that she was twice interviewed by detectives with the San Bernardino County Sheriff’s Department.
She told the detectives about the unanswered phone call from McStay that was placed to her husband the night of February 4, 2010, she said.
Maline asked her about an interview she had with San Bernardino County Sheriff’s Department investigators on October 10, 2014. “How was that experience?” Maline asked. “Were they questioning you about whether he really received that phone call or not?”
An objection was made to the question and sustained. Maline had Jarvis confirm that she had stood by her statement that Merritt had gotten but did not answer a call from Joseph McStay on the evening of February 4, 2010.
Catherine Jarvis testified that after Joseph McStay’s disappearance, an effort involving Merritt and McStay’s brother and mother was made to keep Earth Inspired Products up and running. She said that she also understood that effort might have included Dan Kavanaugh, who was involved in the sale of the water features via the internet. Merritt had completed the Saudi Arabia waterfall project, she testified, and he traveled to Saudi Arabia to install it.
In the summer of 2014, homicide detectives with the San Bernardino County Sheriff’s Department had obtained warrants to place taps on Merritt’s and Jarvis’s phones. In an effort to induce one or both of them into making an incriminating statement or incriminating statements, the detectives interrogated Catherine Jarvis on October 10, 2014. The following day, October 11, 2014, there was phone contact between Merritt and Jarvis. The recording of that conversation was played in court on Thursday morning while Jarvis was on the witness stand.
On the audio of the call, Jarvis can be heard telling Merritt that she had been subjected to an interrogation by the detectives “for hours” in which they were trying to convince her that she had things “wrong. Pretty much telling me that you did the murders and that I, you know, helped you in some way, shape or form.”
She said the detectives were showing her “evidence and things, pictures…”
“Such as?” Merritt asks.
“Pictures of your utility truck and pictures of the family, pictures of us, pictures of our kids,” she says.
“What’s that got to do with anything?” Merritt says.
“They’re trying to intimidate,” she says. “They say, ‘If you go to jail, what’s going to happen to your kids?’ Stuff like that. They show me a picture of my kids. ‘Do you want them to be without a mother?’”
“Those fuckers,” Merritt responds. “What kind of questions were they asking?”
“Like, ‘What happened the night before Joseph disappeared?’ and then they brought out phone records and said, “Well, that’s not what happened. Chase wasn’t home.’ And I go, ‘What? That’s not possible. That’s not what I remember.’ And, so like ‘Well, here’s the phone records’ and ‘You were trying to get a hold of him at the time you saw the phone ringing.’”
“I was trying to get a hold of him?” Merritt says.
“No, I was trying to get a hold of you,” Jarvis says.
“They were showing me the phone records from that night,” she said. “’Look, there’s call after call after call, and he’s not answering.’ I go, ‘That can’t be. That can’t be, because you were home. I remember!’ It was crazy.”
A bit further on in the phone call, Jarvis is heard saying the investigators were telling her “You [i.e., Merritt] had something to do with it. Now you’re going to be accused of the murders. I was like, ‘This is not possible. Not possible. I know Chase. It’s not possible.’ You’ve got no reason to do this.”
Jarvis told Merritt she told the detectives, “’One day somebody is going to come and probably shoot Chase, kill him, but for him to do this to somebody else, just doesn’t make sense.’ I told them there’s no way you could have done it and they said that there was, and your car, your truck was seen at Joseph’s house the night he disappeared. We’re going back and forth and I was just like ‘Am I going crazy? Am I remembering things wrong? What the hell is happening?’ They were trying to convince me or get me to say it didn’t happen the way I said. I know. I know it happened. And I said, ‘Maybe it happened on another day, but I could have sworn it was on a Friday. I could have sworn this is what happened.’”
Jarvis said, “I don’t know if they’re just trying to find evidence to pin this on you. I don’t know if they’re telling me a made-up story for my benefit.”
Merritt said, “They’re spending an awful lot of energy on me.”
“Well, they’re just trying to find out who did it,” Jarvis responded. “I think they want to cover a lot of bases and you don’t know if they’re spending an awful lot of energy on you. It’s just that you’ve made a lot of people angry at you. That’s part of the problem. If somebody’s going to point a finger, they’ll point at you because you’ve pissed everybody off.”
“Where do you get I’ve pissed everybody off?” Merritt retorted.
“Who haven’t you pissed off?” Jarvis came back.
“I haven’t pissed everybody off,” Merritt is heard saying.
“Think about it,” Catherine Jarvis said.
“Like who?” Merritt asked.
“Chase, like everybody,” she said. “Everybody that I can think you come into contact with. The customers. Business associates. You piss everybody off. Because you end up walking away. You don’t follow thorough. You don’t finish. You piss a lot of people off. That’s what I told the detective. I said, ”That’s what I’m saying.’ I couldn’t take that chance with my family because you’re too reckless. You don’t think about the consequences of things. I thought you were going to piss off the wrong person and they were going to come after you and/or us. I said, ‘If anything, it will be Chase who will end up dead. He’s going to piss off the wrong person one day and he’s going to end up dead. But for him to take somebody else out, that just don’t make sense. He just doesn’t care much about anything or anyone.’”
“Well, thanks,” said Merritt..
“Well, it’s friggin’ the truth,” Jarvis said.
“No, it’s not,” Merritt responded.
“You didn’t care enough to keep your family together,” Jarvis remonstrated. “You don’t stop doing the bad things you do. You don’t think about the repercussions. You don’t listen to people when they’re trying to tell you that you’re not doing the right thing.”
Nevertheless, after that diatribe, Catherine is heard saying, “I still believe in you. I still care about you. You drove me crazy.”
When the prosecution was still putting its case on and was yet contemplating calling Catherine Jarvis as a prosecution witness, the defense team made a motion to prevent the introduction of evidence consisting of monitored conversations between Merritt and both Catherine Jarvis and Sara Jarvis. In an effort to circumvent the recording of conversations over the intercom phones on either side of the visiting booths at West Valley Detention Center, Merritt had taken to shouting loudly though the plexiglass partition. Sergeant Ryan Smith placed a digital recording device in the booth that captured those exchanges. Judge Michael Smith ruled that the prosecution could use those recordings and present them to the jury.
Thus, with Catherine Jarvis on the stand, Rodriguez had one of those recorded exchanges played for the jury.
In it, Merritt can be heard telling Jarvis that she is likely to be called upon to testify about the February 4, 2010 phone call from Joseph McStay that went unanswered. He also discusses with her the circumstance relating to a waterfall he and McStay had built for Provecho, a restaurant in Los Angeles. Provecho had stiffed McStay for the $38,000 cost of that impressive water feature, and McStay was on the verge of suing the restaurant to recoup the money. In the meantime, both McStay and Merritt had agreed to split the loss – $19,000 each – on the project.
The prosecution was hoping that the jury might construe Merritt’s statements to Catherine Jarvis with regard to her upcoming testimony as an effort to influence that testimony, and an indication of his guilt. Among courtroom observers, that evidence left varying impressions. Indeed, among those courtroom regulars who are favorably disposed to the prosecution and who have reached the conclusion that Merritt is guilty, Merritt’s recorded shouts through the glass were uniformly interpreted as further confirmation of his culpability in the brutal murders and as an effort to fabricate evidence and tamper with a witness. Among others, however, his efforts to bypass the jailhouse’s eavesdropping system after being cooped up for more than four years was seen in a far less sinister light. Of import here, it was noted, the statements he made with regard to the Provecho matter were absolutely true and can be documented by communications between McStay and others. Moreover, law enforcement officials for more than four years have made a concerted effort to change Catherin Jarvis’s statements with regard to the unanswered February 4, 2010 phone call from McStay to Merritt, going so far as to threaten her with arrest and to charge her as an accomplice in the murders if she did not do so. In this way, Merritt’s efforts to keep her on track without alerting the authorities lends itself to an entirely different construction, coming across to some as a logical and defensible effort to prevent himself from being railroaded.
In cross examining Jarvis, Rodriguez obtained an acknowledgment from the witness that Merritt had taken an almost obsessive interest in gambling in the 2007-2008 timeframe, and had begun completing at poker tournaments. When Jarvis indicated that Merritt’s fascination with gambling had lasted “a couple of years,” Rodriguez introduced evidence that had been presented through other witnesses earlier in the trail to show that Merritt’s overindulgence in gaming had persisted for far longer and at an intensity greater than Jarvis had represented, in that he had frequented the Pechanga, Commerce and San Manuel casinos on at least 73 occasions between February 2009 and February 2010. An element of the prosecution’s case is that Merritt’s gambling addiction had contributed to the financial desperation that led to the McStay family murders.
In an effort to imply to the jury that Catherine Jarvis was shading the truth in her testimony, Rodriguez asked her about her current relationship with Merritt and her feelings toward him. She acknowledged she still loved him.
Rodriguez dwelt at length with both the mother and daughter with regard to their contact with Merritt’s defense team. Both acknowledged having reviewed with Merritt’s lawyers transcripts, videos or audio recordings of their questioning by investigators.