By Mark Gutglueck
Dogged by accusations from the prosecution that it was deliberately seeking to delay the proceedings and provoke a mistrial, the defense in the McStay family murder case this week pursued its strategy of propounding its theory that investigators had mistakenly settled upon their client, Charles Merritt, as the murderer while the actual perpetrator of the heinous 2010 crimes, Dan Kavanaugh, yet roams free.
Prosecutors allege Charles “Chase” Merritt, had engaged in a series of thefts from Earth Inspired Products, the company owned and operated by his business associate, Joseph McStay. Through that company, Joseph was selling high end decorative water fixtures – artificial waterfalls and fountains – which he and Merritt designed based upon specifications provided by customers. Merritt then manufactured the decorative pieces out of steel, glass, rock and other components. The prosecution’s theory, presented during the initial nine weeks of the trial that began the first week of January 7 this year, is that Merritt by early February 2010 was in a state of economic desperation brought on by his gambling addiction and utter lack of financial discipline. At that point, the prosecution maintains, Merritt fraudulently obtained access to the QuickBooks accounting system McStay had set up for the Earth Inspired Products enterprise and pilfered thousands of dollars by issuing himself a series of checks.
When he learned of what Merritt was up to, either shortly before or perhaps even on February 4, 2010, Joseph McStay traveled to Rancho Cucamonga, where Merritt was then living, and confronted him about his larceny, threatening to alert authorities, prosecutors allege. After Joseph McStay returned to San Diego County, the prosecution’s theory continues, Merritt that evening drove to the McStay residence in Fallbrook where he killed Joseph McStay, his wife Summer and their two sons, four-year-old Gianni and three-year-old Joseph, Jr.
Merritt then secreted the bodies for two days, in the meantime again fraudulently accessing Joseph McStay’s QuickBooks account for Earth Inspired Products, the prosecution maintains, and on February 4, 2010, February 5, 2010 and again on February 8, 2010 issued checks from the Earth Inspired Products Account made out to himself for a total of $23,855.
Merritt then transported the corpses up into San Bernardino County’s High Desert, an area with which he was familiar from having grown up in Hesperia and attended Apple Valley High School for three years in the 1970s, according to prosecutors. There, on February 6, 2010, he buried all four along with the hammer he had used to bludgeon his victims in shallow graves he dug in a wash off a rarely-traveled dirt road, according to the prosecution. To confuse the situation, throw authorities off his track and delay a serious investigation into the matter, the prosecution maintains Merritt then drove the McStay family’s 1996 Isuzu Trooper, which yet contained the child seats for Gianni and Joseph, Jr. to San Ysidro, where he left the vehicle in a shopping center parking lot roughly a quarter of a mile from the Mexican border.
From the outset of the trial during opening statements on January 7, the defense has maintained that investigators and prosecutors very early on in the investigative process latched onto Merritt as the likely suspect in the case and then through what they called confirmation bias failed to seek out or consider any evidence to the contrary, while misinterpreting what little evidence they did possess to conclude it supported the underlying theory they had developed, which was that Merritt alone had the motivation, means and opportunity to slaughter the  McStay family and that he singularly was responsible for the murders.
Before the trial started, the prosecution prevailed upon the judge hearing the case, Michael A. Smith, to disallow the utilization of a defense along the lines that it was Kavanaugh who had actually killed the McStay family, as this amounted to what is referred to as “third party culpability.” Under California’s precedent law relating to the introduction of evidence by a defendant to allege third party culpability, including the cases of People v. Mendez and People v. Green, substantial evidence tending to show that a third party is guilty of the offense charged must be presented prior to trial for the court to deem such evidence admissible before a jury.
Thus, only if that evidence marshaled prior to trial directly connects the theorized alternate perpetrator with the actual commission of the offense is the evidence usable by the defense in putting on its case. The courts have held that evidence of mere motive or opportunity to commit the crime in another person, without direct or circumstantial evidence linking the third person to the actual perpetration of the crime, will not suffice to raise a reasonable doubt about a defendant’s guilt, under the current standards of California law.
On that basis, prior to the beginning of the trial Judge Smith denied Merritt’s defense team’s request to construct a third party culpability defense for its client, granting it only what was meant to be a limited and incidental latitude in mentioning Kavanaugh in relation to Joseph McStay and Earth Inspired Products. Prior to the family’s disappearance, Joseph McStay was paying Kavanaugh to promote Earth Inspired Products on the internet. In the aftermath of the family’s disappearance, in conjunction with Merritt, Joseph McStay’s mother, Susan Blake, and Joseph McStay’s brother, Michael McStay, Kavanaugh was involved in an effort to keep Earth Inspired Products up and running in the  hope the company might be preserved as a going concern which Joseph McStay could reassume control of after his anticipated return.
The prosecution, perhaps in an effort to downplay for Judge Smith’s benefit the suggestion that Kavanaugh ever actually represented a viable suspect in the family’s murders, had placed Kavanaugh on its own witness list, a signal that whatever information he possessed would not exonerate Merritt but rather implicate him. When the prosecution rested on March 12, after 28 days of testimony involving 35 witnesses, Kavanaugh had not been among them. While the prosecution was yet putting on its side of the case, the defense team, consisting of James McGee, Raj Maline and Jacob Guerard, did not miss any opportunities presented to them to dwell on Kavanaugh and pose questions relating to Kavanaugh to the prosecution’s witnesses, asking about his relationship with Joseph McStay, the animosity that had grown between them over the last year of Joseph’s life when Kavanaugh learned that Joseph was withholding from him commissions he felt he deserved for the customized water feature projects McStay and Merritt were working on separately, and the way in which Kavanaugh, after the family’s disappearance, had horned in on the Earth Inspired Products operation, diverting most if not all of the money it generated to himself, then seized ownership of the company and sold it, keeping the proceeds for himself. The prosecution team, gritting its teeth at these tactics and lodging constant objections to them in front of the jury, during sessions before Judge Smith outside the presence of the jury lodged increasingly strident protests that the defense team was failing to abide by the limitations that had been imposed on them with regard to the third person culpability issue.
After the trial shifted to the defense putting on its case, references to Kavanaugh intensified, culminating in the 14th week of the trial when Sarah Kane, the custodian of records for PayPal, and Bryan LaRock, a computer system forensic analyst, testified. Both McStay and Kavanaugh had PayPal accounts into which they received, and from which they made, payments. During Kane’s testimony it was demonstrated to the jury that six days after February 4, 2010, the day Joseph McStay and his family disappeared and are presumed by the prosecution to have been murdered, Kavanaugh on February 10, 2010 hacked into Joseph McStay’s PayPal account and changed the password. Over the next two days, Kavanaugh transferred $7,900 from Joseph McStay’s PayPal account to himself.  LaRock’s testimony solidified that the internet protocol address from which the hacking into McStay’s PayPal account was carried out was Kavanaugh’s. Last week, a forensic accountant called by the defense, Dennis Shogren, demonstrated that in the ten months after the McStay family’s disappearance, Kavanaugh commandeered the Earth Inspired Products operation and diverted $206,064 from the company to himself. The prosecution in cross examining Shogren, while conceding that Kavanaugh had indeed made off with somewhere between $126,000 to $127,000 from the Earth Inspired Products venture in 2010, suggested that Shogren could not say with definitude whether another roughly $79,000 to $80,000 that Kavanaugh had pocketed that year was generated by Earth Inspired Products activity.
As the defense has stepped up and sharpened the focus on Kavanaugh, it succeeded in catching the prosecution unawares with regard to the degree to which facts in the case implicate Kavanaugh, as has been evinced on more than one occasion when prosecutors, outside the jury’s presence, have complained to Judge Smith that the defense had withheld from them until only only shortly before they presented evidence exculpatory to Merritt which consisted of indications of the degree to which Kavanaugh was involved in the circumstances surrounding the case.
While Judge Smith has yet to rescind his original ruling that the defense is restricted from openly propounding to the jury a theory of third party culpability, the trial at this point, which is roughly two weeks shy by most estimates of reaching closing arguments, has grown into a de facto forum in which two competing theories of who perpetrated the murders – Merritt or Kavanaugh – have been presented to the jury.
This week, Sergeant Edward Bachman, who testified earlier as a prosecution witness and was called by the defense last week, returned to the witness stand on Tuesday, following the courtroom being darkened on Monday. As the investigation into the McStay family murders progressed in 2014, Bachman was designated the case agent on the matter, and he was responsible for compending the various reports generated by the detectives working the case into the “book” ultimately passed along to the prosecution team.
Questioned by Raj Maline, Bachman said he and then-Detective Daniel Hanke had conducted an interview with Dan Kavanaugh on September 20, 2014 in San Diego, where Kavanaugh was then residing.
Maline asked Bachman if in January 2014, well prior to that interview with Kavanaugh, he had authored an affidavit and application for a search warrant to obtain Kavanaugh’s cell phone records.
“I did,” Bachman said.
Kavanaugh’s whereabouts at the time of the family’s disappearance has grown into a major consideration in the trial. There is contradictory evidence relating to this issue. Purchases on an account or accounts associated with Kavanaugh were made at multiple commercial establishments in Hawaii in the January through mid-February 2010 timeframe and an airline ticket was purchased in his name from Hawaiian Arlines, which seems to suggest Kavanaugh was indeed in the Aloha State at the time of the murders. But no boarding passes for Kavanaugh relating to his flights from California to Hawaii or from Hawaii back to California have ever been produced to prove he was in fact in Hawaii, and there is evidence to suggest that Kavanaugh’s credit card was in the possession of his then-girlfriend, Lauren Knowles, who was in Hawaii. Investigators never verified Kavanaugh’s claim that he was in Hawaii on the relevant dates by speaking with the individual, Larry Haynes, at whose residence Kavanaugh said he was staying when he on the island. More significantly, activity that took place on Kavanaugh’s computer originating at his IP (internet protocol) address in the San Diego area in January and February 2010 indicates he was in California, in an area relatively proximate to the McStay family home in Fallbrook in northern San Diego County, at the time of the murders.
Maline inquired if Bachman knew in January that Kavanaugh had gone to Hawaii.
“Correct,” Bachman responded. “Well, based off the cell phone records, correct.”
“When you authored the search warrant in January 2014, you had a question as to the dates that Mr. Kavanaugh was actually in Hawaii, is that correct?
“Yes sir,” Bachman said.
“Did you do anything after you authored the search warrant to confirm the dates that Mr. Kavanaugh was in Hawaii?” Maline asked.
“I believe Detective [Jose Armando “Mando”] Avila did,” Bachman said. “He followed up with Hawaiian Airlines, I believe it was, to try to confirm the dates Mr. Kavanaugh traveled.”
“At the time I authored the warrant for Mr. Kavanaugh’s phone records I authored numerous warrants for other people’s phone records to try and get kind of a baseline for anybody that we could see if we could provide alibis for or getting investigative leads for,” Bachman said.
“So when Mr. Kavanaugh indicated he was in Hawaii, that would be an alibi, right?” Maline asked. “He was saying, ‘I’m in Hawaii, at least in the beginning of February, so I’m not around.’ So your job, or as part of the homicide detail would be to verify that or not, correct?”
“Yes,” Bachman said.
“You had questions about the dates?” Maline asked.
“We were trying to verify the dates that Kavanaugh was in Hawaii, correct,” Bachman said.
“So, after you authored the search warrant in January of 2014, you said Detective Avila followed up, is that correct?” Maline asked.
“Yes,” Bachman said.
“And was that something you guys discussed as a group?” Maline asked.
“I don’t know that we necessarily discussed it as a group,” Bachman said. “There was follow-up that Detective Avila did to try and verify the dates that he traveled.”
“The information you put in your affidavit would be from Detective Avila, correct?” Maline asked.
“Not necessarily,” Bachman said, but then stated, “Yeah. It would have been something that I obtained from him or something that was discussed at some point.”
“So, again, my question would be what he was able to do or not do with his follow-up would be something that you would have discussed, correct?” Maline asked.
“More than likely,” Bachman said.
“So, other than checking with Detective Avila, what else did you do to confirm Mr. Kavanaugh’s alibis?” Maline asked.
“Are you talking later, after we interviewed him?” Bachman asked.
“Whenever,” Maline said.
“We followed up with Lauren Knowles who was the female he was in Hawaii with,” Bachman said.
“Did you ask her for any boarding passes or plane tickets or anything like that?” Maline asked.
“You’d have to talk to Detective [Daniel] Hanke about that,” Bachman said. “He was the one who interviewed her.”
“Well, you’re the case agent,” said Maline. “Did you ever come across a ticket or a boarding pass or anything like that?”
“Not to my knowledge, no,” Bachman said.
“You yourself never contacted any airline or any airport authority or the TSA [Transportation Safety Agency] or anything like that?” Maline asked.
“I did not,” Bachman said.
“So, Lauren Knowles, his girlfriend,” Maline said, enumerating one base the investigative team had covered. “Anything else that you did to check the alibi?”
“Obtained his phone records,” Bachman said.
“What is it about his phone records that would provide an alibi for him?” Maline asked.
“Based on the fact that he says he’s there, his phone records indicate he’s calling local establishments there in Hawaii, along with Lauren Knowles’ statement and photograph that she provided, we’re pretty confident he was in Hawaii at the time the McStays went missing,” Bachman said.
“So his phone records show calls to Hawaii numbers, is that what you are saying?” Maline asked.
“I believe so, yes,” Bachman said.
“So would that require Mr. Kavanaugh to be in Hawaii, to make calls to Hawaii numbers?” Maline asked.
“You asked me that on Thursday,” Bachman said. “I said no.”
“So other than check his phone records, did you do anything else?” Maline asked.
“Not that I can recall offhand, no,” Bachman said.
“The name of Larry Haynes: does that ring a bell?” Maline asked.
“I believe that’s the name that Kavanaugh said they stayed with on their trip,” Bachman said.
“And did you ever contact him?” Maline asked.
“I personally did not,” Bachman said. “I don’t recall if other detectives did or not.”
“At the time you interviewed Mr. Kavanaugh in September of 2014, you were aware that Joseph had owned Earth Inspired Products, right, that was his company?” Maline asked.
“Yes,” said Bachman.
“And during the interview with Mr. Kavanaugh, he indicated to you…” Maline started.
“Objection; calls for hearsay,” Supervising Deputy District Attorney Britt Imes interjected.
“Sustained,” Judge Smith said.
“Do you know whether or not the subject of EIP [Earth Inspired Products] came up in your interview?” Maline asked.
“Objection; calls for hearsay,” Imes said.
“Overruled,” Judge Smith said. “He can answer.”
“I’m not sure,” Bachman began, and then said, “I’m sure we talked to him about the status of the business after the McStays went missing.”
When Maline proffered Bachman a transcript to refresh his recollection, Imes again launched a hearsay and relevance objection, which Judge Smith overruled. Maline provided Bachman with the transcript of the September 20, 2014 interview with Kavanaugh. After Bachman looked at pages toward the end of the transcript, Maline asked, “Does that refresh your memory?”
Bachman said, “Yes, sir.”
“So, the topic of Mr. Kavanaugh selling the company, did that come up in your interview?” Maline asked.
“It did,” Bachman said.
“So, since you had information, since you knew that was Joseph’s company at the time you interviewed Mr. Kavanaugh, did you ever confront Mr. Kavanaugh in this interview and say, ‘How the heck did you sell Joseph’s company without his permission…”
“Objection; relevance; argumentative,” Imes said.
“Sustained, as phrased,” Judge Smith ruled.
“Did you ever ask Mr. Kavanaugh how it was that he was able to sell Joseph’s company without Joseph’s or his family’s permission?” Maline asked.
“Objection; relevance,” Imes said.
“Overruled,” Judge Smith said.
“Based on the information that’s in there, at that portion of it there it didn’t look like we confronted him regarding that,” Bachman said. “There were a lot of questions, obviously, because we’d never talked to Mr. Kavanaugh before. So without speaking to Mr. Kavanaugh –  at that point we still hadn’t spoken to Mr. Merritt – so, Mr. Kavanaugh provided information that Mr. Merritt deleted the accounts, also, that he thought was a concern.”
“Objection; non-responsive; move to strike,” co-defense counsel James McGee said.
“Overruled,” Judge Smith said.
“So, you didn’t confront him, in at least what you’re looking at in the transcript, correct?” Maline asked.
“In the portions of the transcript of the interview, no,” Bachman said.
“And do you ever recall going back after September 20th at any time and asking Mr. Kavanaugh, ‘How was it that you were able to sell EIP without Joseph’s permission or his estate’s permission…”
“Objection; relevance and argumentative,” Imes said.
“Overruled,” Judge Smith said.
“I didn’t re-interview Mr. Kavanaugh after that,” Bachman said.
“Did anyone in the homicide detail interview him on that subject?” Maline inquired.
“Detective Hanke may have done some follow-up talk with him,” Bachman said. “He was the one who kept in communication with Kavanaugh for any additional information that we needed, but I wasn’t part of the interviews on that.”
“Are you aware of any such questioning of Mr. Kavanaugh as the case agent in this case?” Maline asked.
“Objection; lacks foundation,” Imes said.
“Overruled,” Judge Smith said.
“I don’t believe so,” Bachman said. “I think we looked into the folks he talked about selling the business to.”
“You, as the case agent, never requested Mr. Kavanaugh’s PayPal records or know of any other person in the homicide detail that would have requested Dan Kavanaugh’s PayPal records?” Maline asked.
“Objection; it’s compound and the second part calls for hearsay,” Imes said.
“Sustained, as compound,” Judge Smith said.
“Did you ever request Dan Kavanaugh’s PayPal records at any time?” Maline rearticulated.
“The PayPal records I believe were looked into,” Bachman said. “Part of the stuff you’re asking me to go over is 80,000 pages of discovery, so I haven’t looked over every piece of everything. The PayPal records I believe were looked into. I’m not all that familiar with [that], but I’m sure there are detectives that are that could come up to testify to that.”
“The topic of PayPal records and PayPal withdrawals came up during your interview with Mr. Kavanaugh, correct?” Maline asked.
“It did,” said Bachman.
“And actually, Mr. Kavanaugh told you in a manner…” Maline began.
“Objection; calls for hearsay,” Imes interrupted him.
“Sustained,” Judge Smith said.
“Did you ask or did Detective Hanke ask while you were sitting next to him how much money did Dan Kavanaugh take, withdraw, from Joseph’s PayPal account?” Maline asked.
“Objection; relevance, which leads to hearsay,” Imes said.
“Overruled,” Judge Smith said.
“At which point are you asking?” Bachman said, seeking clarification. “When did he withdraw the money?”
“At any time prior to your interview, so from 2010 to September 2014,” Maline said.
“I think he said he had taken that,” Bachman said. “Again, without listening to the audio from the interview… I didn’t prepare the report with regard to his interview.”
“Is it that you don’t remember?” Maline asked.
“I know he said he did take money out of the accounts,” Bachman said. “He never personally offered or signed a check. I recall him saying that, but I don’t remember an actual figure of the amount he withdrew from the account.”
Maline had Bachman review the interview transcript once again.   After reading through several pages of the report, Bachman said, “He said it could be anywhere between…”
Simultaneously, Imes and Deputy District Attorney Melissa Rodriguez echoed in chorus, “Objection… Objection; hearsay… hearsay.”
“Sustained,” ruled Judge Smith. “So, he did give a figure, is that correct?”
“He did,” Bachman said.
“Okay,” Judge Smith said.
“The figure that he gave you, you knew that it was incorrect, didn’t you?” Maline asked.
“Objection; lacks foundation,” Imes said.
“Overruled,” Judge Smith said. “He can answer.”
“We knew that it was incorrect?” Bachman answered the question in a way that by its inflection was more of a question than a statement.
“Right,” Maline said.
“How so?” Bachman asked. “I’m not sure that I follow.”
“Objection; calls for hearsay,” Imes said.
“You knew the amount he told you he took from PayPal, from Joseph’s PayPal account, was not correct…” Maline began.
“Objection; assumes facts not in evidence and lacks foundation,” Imes said.
“Overruled,” Judge Smith. “He can answer whether that was their understanding at the time.”
“At the time sir, I don’t know if we knew exactly how much money was withdrawn from the account,” Bachman said. “I know we had financial records back, but as I sit here today I don’t recall how much money we knew was taken out of the account at that time.”
“Well, you had Joseph’s PayPal records, correct?” Maline asked.
“Yes,” Bachman said.
“Did you ever verify the amount that Mr. Kavanaugh told you he took and just match it against Joseph’s PayPal records?” Maline asked.
“I’m sure we did,” Bachman said. “Again, the focus of the PayPal portion of the investigation wasn’t something that I was responsible for. We split different parts of the investigation up. Part of the PayPal records –  There’s a detective that could testify as to what they looked into with that, but just because I was the case agent doesn’t mean I was completely savvy on everything, every little nook and cranny of the case.”
“What about the times that Mr. Kavanaugh accessed Joseph’s PayPal records after the family disappeared?” Maline pressed. “Would that be important as part of the investigation?”
“Yeah,” Bachman said.
“So, do you know when Mr. Kavanaugh first accessed Joseph’s PayPal account to…” Maline started.
“Objection; lacks foundation based on his previous answer that he is not familiar with this line of inquiry,” Imes said.
“Overruled,” Judge Smith said. “He can answer.”
Bachman asked for the question to be repeated.
“Do you know when it was that Mr. Kavanaugh accessed Joseph’s PayPal account?” Maline asked.
“No, I don’t know,” Bachman said.
“…in relationship to the disappearance of the McStay family?” Maline tacked onto the end of his previous question.
“I believe it was within a week after they went missing,” Bachman said.
“Did you ever confront him about the timing of his withdrawals from PayPal?” Maline asked.
“Again, without listening to his interview or reviewing it, I don’t know exactly when we confronted him,” Bachman said. “I know we spoke with him for at least a couple of hours. I know we did address a lot of the issues there, but not all. I didn’t listen to the audio from the recording, from the interview.”
“So, did you review the Pay Pal records? You would know whether or not Mr. Kavanaugh had ever gone into Joseph’s records to withdraw money, you would know…” Maline started to ask.
“Objection; calls for speculation; lacks foundation,” Imes broke in. “He said he didn’t review the records.”
“Sustained,” Judge Smith said.
“I thought you said you reviewed Joseph’s PayPal records,” Maline said.
“I know we had records at the time,” Bachman said. “I don’t know that I personally went through his records.”
“Did you ever approach the subject of Dan being bought out by Joseph?” Maline asked.
“Yeah, we did ask him about that,” Bachman said.
“Isn’t it true that Mr. Kavanaugh indicated…” Maline began.
“Objection, calls for hearsay,” Imes said.
“Sustained,” Judge Smith said.
“Based on your interview, do you know how Mr. Kavanaugh felt about the buyout?” Maline asked.
“Objection; calls for hearsay,” Imes said.
“Objection sustained as calling for speculation and conclusion,” Judge Smith said.
“Did Dan Kavanaugh have animosity toward Joseph McStay regarding the custom business he was doing with Chase?” Maline asked.
“Objection, calls for speculation and hearsay,” Imes said.
“Sustained,” Judge Smith ruled.
Further questioning of Sergeant Bachman was put on hold while excerpts of an interview turned interrogation of Merritt conducted by Bachman and then-Detective and now-Sergeant Daniel Hanke on October 22, 2014 were being extracted from the video of that exchange and were being prepared for display to the jury. Maline intends to resume his questioning of Bachman at that point with regard to what occurred during that interrogation. Technical difficulties in making those extractions from the video ensued, and so the playing of the edited video of the interrogation and the completion of Maline’s examination of Bachman was suspended until next week.
Called to the witness stand thereafter was San Diego County Sheriff’s Department Homicide Detective Troy DuGal. On February 15, 2014, DuGal took up the matter as a multiple missing persons case upon being summoned to the McStay residence in Fallbrook by then San Diego Sheriff’s Department Deputy Michael Tingley, who had accompanied Michael McStay, Joseph McStay’s brother, to the home because of the latter’s expressed concern about the family’s prolonged absence. Though there was no overt indication of foul play at the home, DuGal previously testified that his instincts as an investigator were that the matter was more than a missing persons case, which is how the investigation was characterized officially.
In response to Maline’s questioning, Detective DuGal acknowledged having retrieved 25 voicemails from Joseph McStay’s cell phone account in 2010. He said he documented the 25 voicemails in a report, which contained a synopsis of what each message consisted of. DuGal said that Summer’s phone account had 31 voicemails intact on it.
Joseph McStay’s and Summer McStay’s cell phones disappeared with them and were never recovered. The last phone call placed from Joseph McStay’s phone was at 8:28 pm on February 4, 2010, a phone call to Charles Merritt that went unanswered. Evidence indicates that incoming messages to Joseph McStay’s phone on the days following the family’s disappearance were deleted remotely from some other device, most likely another Sprint phone, as no call was made from Joseph McStay’s phone after the 8:28 pm February 4 call.
According to DuGal, while he was yet investigating the matter as a missing person’s case in 2010, through a warrant he gained access to the McStays’ cell phone accounts. In response to Maline, DuGal said the voicemails that were extant on Joseph’s phone started on or after February 15. To a question by Maline, DuGal acknowledged that the second voicemail referenced a report about the family being missing that appeared in the San Clemente Times. DuGal deduced from that the messages had to have come in from February 15 onward.
“Were you aware that when you interviewed Michael he said that he called and left messages for his brother?” Maline asked, his reference being to calls that had been placed at least as early as February 9 and on the days thereafter.
“I do remember him saying that,” DuGal said.
“They weren’t on his voice mail box, were they?” Maline asked.
“They weren’t annotated in my report, so no,” DuGal said.
“And what about Susan Blake [Joseph McStay’s mother]?” Maline asked. “She also called and left voicemails for her son, correct?”
“I don’t specifically remember Susan’s statement,” DuGal said.
“And what about Dan Kavanaugh?” Maline asked. “Did he call and say that he left messages?”
“Objection, calls for hearsay,” Supervising Deputy District Attorney Sean Daugherty said.
“Overruled,” Judge Smith said.
“I don’t specifically remember what Dan told me,” DuGal said, indicating that he was on a first name basis with the man defense team considers to be the actual murderer in the case. “I obviously talked to Dan Kavanaugh, about that specific incident, but it’s not in this report. I did not have any preparation for this testimony.”
“So you did not really get into the issue of whether or not voicemails were erased then,” Maline said. “That was not something that you remember.”
“I didn’t do any forensics on the answering machine or voice messages other than obtain these,” DuGal said.
DuGal told Maline that he had learned from San Diego County Sheriff’s Deputy Mike Tingley on February 15 the Isuzu Trooper had been impounded from a mall lot in San Ysidro. DuGal said that he spoke with security guards at the San Ysidro Mall and detailed some of his peers to get any surveillance video from the mall they could find relating to the time period when the Isuzu Trooper was known to have been left in the mall parking lot. DuGal also testified that he sought to retrieve video of the international border crossing at San Ysidro in the 24 hour period around the time the Trooper was found.
DuGal said that he also spoke with one of the security guards, James Murray, working at the mall when the Isuzu Trooper was found there on February 8, 2010. He said he also secured whatever security video footage was available from the mall. “I don’t remember exactly what time period I gathered [the available video footage] from there,” DuGal said when asked how far in advance and how far after the  9:18 pm February 8, 2010 first sighting of the Trooper noted in Murray’s documentation relating to the towing of the vehicle. “I don’t know if it was tighter than 24 hours.”
DuGal said he had traveled to the mall, where he met with Murray and another security guard working there at the time, David Jackson. One of the two told him approximately where the Isuzu was parked and DuGal said based on what he had been told his report contained a rough sketch of the two spots where the Trooper could have been parked in front of a store in the mall called the Pink Zone.
“You collected surveillance film starting at the time that Mr. Murray would have told you the Trooper would have been there, correct?” Maline asked.
“I did it by logic to when – the time period I wanted surveillance video to what he said,” DuGal said. “I would have gone before and after the tow.”
“So, if you collected the surveillance video from five o’clock to 11 pm, 5 pm to 11 pm at the shopping center, does that sound about right?” Maline asked.
DuGal said he did not recall the precise times the video footage he requested covered. After he was told that his previous testimony had indicated the 5 pm to 11 pm timeframe, he conceded that was roughly correct.
“You didn’t just pick that timeframe out of the air,” Maline said. “You based that on what you were told, correct?”
“Sure,” DuGal said. “That’s the way an investigation works.”
Establishing that the McStay family’s Isuzu Trooper was not abandoned until late in the day on February 8 is of consequence to the defense, as Merritt’s cell phone records indicate that he was in the Rancho Cucamonga area on February 8 beginning early in the afternoon until late into the evening, which casts doubt on the prosecution’s assertion that it was Merritt who drove the Isuzu Trooper to the border and abandoned it there.
Maline questioned DuGal about an interview with Merritt that he and another homicide investigator with the San Diego Sheriff’s Department, Suzanne Fiske, carried out in Rancho Cucamonga on February 17, 2010 while they were in the early stages of carrying out the missing persons investigation relating to the McStay family. In that interview, which was played for the jury during the prosecution’s presentation of its case earlier in the trial, a cooperative Merritt fills the two detectives in on a host of details with regard to the McStay family and his business and personal relationship with Joseph McStay in an apparent effort to guide the investigators toward information that might be helpful in finding the missing family. At one point during the interview Fiske noted, as did prosecutors later in presenting their case against Merritt, that during the interview, he occasionally referred to Joseph and the other members of the McStay family in the past tense. That, the prosecution contends, shows that Merritt knew the missing family was dead, something only the murderer would know with any certainty at that point, and is thus an indication of Merritt’s guilt.
Maline made references to the forms of the questions that had been posed to Merritt during the February 17, 2010 interview to demonstrate that the detectives – DuGal and Fiske – were themselves using the past tense, and thereby conditioning responses that were likewise in the past tense.
Using the transcript of the interview, Maline gave a demonstration of Fiske using the past tense.
“Is there any reason why Detective Fiske would have used the past tense when referring to Joseph’s credit cards?” Maline asked.
“Objection; calls for speculation,” Imes said.
“Sustained,” said Judge Smith.
Maline, who had approached the witness stand with a notebook containing the transcript of the interview and had placed it on the edge of the witness box so that DuGal had a close perspective on it, then leafed through the transcript of the interview to find questions posed by DuGal during the interview of Merritt. Locating one on page 33 of the transcript, he first attempted to verify with DuGal that it was his question. Pointing to it, he asked, “Is that you there? Is that your question?”
“Yes,” said DuGal.
“So you asked Mr. Merritt, ‘Did he usually meet with you at Chick-fil-A or did he usually come to your house?’’ Maline said.
“Yes,” DuGal confirmed.
“Why didn’t you ask him, ‘Does he usually meet you there’ as opposed to…” Maline began.
“Objection; argumentative and meet is in the present tense,” Imes said.
“Sustained,” Judge Smith said.
Maline leafed further. “On page 36, is that you as well?” he asked.
“Yes,” DuGal acknowledged.
“You asked Mr. Merritt, ‘Does Joseph often [visit Jonah] and what did Summer say about Jonah?’, correct?” Maline said.
Jonah was Joseph McStay’s child by a previous marriage.
“Objection; relevance and argumentative,” Imes said.
“Sustained,” Judge Smith said.
“Would it be fair to say those questions are in the past tense?” Maline asked.
“Objection; argumentative; relevance,” Imes said.
“Sustained,” Judge Smith ruled.
Again leafing through the transcript of the interview, Maline came to another page and asked, “You asked about the relationship between Summer and her mother also using the past tense, is that correct?”
“Objection; relevance; cumulative; argumentative,” Imes said.
“Sustained,” Judge Smith said.
“Would you agree that in reviewing this transcript and the interview, since you did review it, that many of the questions that are asked by you and Detective Fiske were in the past tense?” Maline persisted.
“Objection; assumes facts not in evidence as to many,” Imes said, anger rising in his voice.
“Overruled,” Judge Smith said. “He can answer.”
“Could you ask again?” DuGal asked.
“Would you agree, and you can take a look at the portions I highlighted,” Maline said in reference to the transcript, “that many of the questions you asked of Mr. Merritt were in the past tense, referring to Joseph in the past tense or Summer in the past tense?”
“I would say generally I’m asking in the past tense because I don’t know any of these people, so yeah, I’m referring to the past,” DuGal said, an acknowledgment that virtually all of the questions to Merritt about Joseph McStay or the McStay family in general were posed in the past tense.
“So, you would understand – and the prosecution brought this up – that ‘Joseph was my best friend,’ when someone gives an answer like that, if you’re asked in the past tense, and this is Detective Fiske, and I don’t know if you were still…” Maline started to formulate a question.
“Objection; argumentative,” Imes interrupted.
“Sustained,” Judge Smith said.
Maline found another question in the transcript that had been posed by DuGal’s partner, Detective Fiske, in which she asked Merritt, ‘Were you also friends’ or if they were merely business partners.
“Were you present for that question?” Maline asked.
“I don’t know,” DuGal said. “It’s Fiske’s question. It’s not my question.”
“Would you agree that the question she’s asking of whether or not Mr. Merritt is friends with Joseph was in the past tense?” Maline asked.
“Objection,” Imes said. “Relevance, argumentative; calls for speculation.”
“Overruled,” Judge Smith said.
“I would once again say that as an investigator, she too didn’t know any of these players, so when we questioned, it’s going to be past tense because we’re talking about relationships, past tense, what have you experienced with your family member,” DuGal said. “In the questions of Mr. Merritt, his answers are much more defined to any use of the past tense.”
“But is there any reason you couldn’t have asked, ‘Are you friends with Joseph?’ as opposed to ‘Were you friends with Joseph?’?” Maline asked.
“Objection; argumentative,” said Imes.
“Sustained,” Judge Smith said. “It would also call for speculation and conclusion.”
“You also mentioned the border crossing video,” Maline said. “Just to clarify the date of that: That was February 8 [2010], correct?”
“That’s correct,” DuGal said.
The reference was to video footage of what appeared to be a family of four, consisting of a man and a woman, each holding the hand of a young child, as they cross from the American side to the Mexican side of the international border. From their stature, the children look to be about the ages of four-year-old Gianni and three-year-old Joseph, Jr. The woman was wearing a light colored jacket with dark trim and a pair of Ug Boots similar to items of apparel in Summer McStay’s wardrobe.
“And what time was the actual time that the family that you believed at the time was the McStay family had…” Maline began.
“It’s not my belief,” DuGal said, somewhat severely in interrupting the question and then correcting Maline. “It’s an investigation where the family – some of the family members – had some belief it was possibly their family. I don’t know the McStays, so it’s not my belief.”
“But you did rely on that border video,” Maline said. “You indicated in many portions of your reports that – you didn’t say definitively that it was them – but it was a reasonable likelihood it was them. That was the term you used, is that not correct?”
“That’s correct, based on the family’s statements to me after viewing the video,” DuGal said.
“So, that was on the 8th, and what time approximately did that family cross…”  Maline began.
“Objection; lacks foundation,” Imes inserted himself between Maline and the witness.
“Overruled,” Judge Smith said. “He can answer if he knows.”
“19:00 or 7 pm,” DuGal said.
Maline asked how far it was from the Pink Zone store to the border.
“I know that because it’s in my report,” DuGal said. “I had someone walk it. Just from memory, it’s ten minutes, a ten minute walk.”
Maline also took up with DuGal an email from Joseph McStay to Merritt that was sent on February 1, 2010, three days before the family disappeared. The email’s contents pertain to several ongoing Earth Inspired Products custom waterfall jobs, and how much income is to be derived from them, as well as two previous jobs that Earth Inspired Products had completed, including one with a cost of $34,000, but for which the customers were refusing delivery and were seeking refunds on their deposits or had canceled payment altogether. Because deposit payments on those projects had been turned over to Merritt so he could purchase the materials needed to complete the waterfalls, McStay had listed those in the email as a $19,000 overpayment and an $8,800 overpayment to Merritt, together with an accumulated overpayment of $15,045 on other jobs such that there was at that point a total overpayment sum of $42,845 that had gone to Merritt. Characterizing this $42,845 as an arrearage, the prosecution has sought to suggest that this was a contributory factor to Merritt’s motive for killing Joseph McStay. The defense, however, has dismissed that accusation as entirely trumped up, asserting that the nature of the way in which the Earth Inspired Products operation conducted business over the years showed a constant flow of money back and forth between McStay and Merritt as orders for water features came in, were worked on, delivered and paid for. To emphasize this, Maline elicited from DuGal testimony that 16 days after McStay had sent the email to Merritt, Merritt had provided it to DuGal and Fiske along with a ledger showing the jobs Earth Inspired Products was engaged in and payments for that work that had been coming in. By demonstrating that Merritt had shown it to the two homicide detectives on his own volition and without reservation, Maline’s intent was to dispel the prosecution’s suggestion that Merritt had killed McStay to get out from paying a debt he owed him.
DuGal confirmed that when Merritt met with him and Detective Fiske on February 17, 2010, Merritt had provided him with the February 1 email from Joseph McStay as well as a ledger relating to the financials pertaining to Earth Inspired Products jobs that were ongoing at the time. Detective DuGal had no in-depth specific memory of the documents, calling them “vaguely familiar, only because I know Mr. Merritt did provide us with some financial documents, and this is basically a ledger of clients and money paid out, but, do I remember this specifically? No,” DuGal said. DuGal said he believed Merritt had provided the documents together to him and Fiske on February 17, 2010.
Gary Robertson, a former police officer with the San Bernardino Police Department for 35 years including 14 years as a homicide detective and four years as the department’s homicide division sergeant who has been working as a private investigator since 2016, testified Wednesday about his efforts on behalf of Merritt’s legal team to locate Kavanaugh.
Before Robertson took the stand, however, an evidentiary hearing was held in which Judge Smith went over the prosecution’s efforts to prevent him from testifying. Smith denied the prosecution’s motion to keep Robertson off the witness stand.
“I think they’re entitled to show that there are logical witnesses suggested by the evidence that they might have called, and I think they are entitled to put on evidence to show, ‘We tried to locate them to get them here. We were unsuccessful,’” Judge Smith said.
Judge Smith did grant the prosecution’s request to limit the scope of the questions to be posed to Robertson and what ground he could cover in his testimony. The defense was prevented by Judge Smith’s ruling from exploring why Kavanaugh could not be located. Smith also ruled that the defense, in its closing arguments, would be precluded from referencing the prosecution’s failure to call a logical witness, and the defense would not be allowed to allege that Kavanaugh is hiding, running or displaying consciousness of guilt by not being available to testify. Nor was Robertson to be permitted to testify, Judge Smith ruled, that as a private investigator he lacked the full range of search tools that are available to public law enforcement agencies that could be brought to bear to find Kavanaugh. In particular, the prosecution succeeded in getting Smith to rule that the defense would not be able to elicit from Robertson that Kavanaugh had originally been on the prosecution’s witness list and that the prosecution had not called him.
On the stand, Robertson said he had been working on the Merritt defense since April 2016 and that he was given the assignment of serving a subpoena duces tecum in August 2017 for Kavanaugh to produce documentary evidence in the form of paperwork. He said he went to two locations looking for Kavanaugh at that time, including one in Escondido, and was not successful in locating him.
Robertson testified that he was given another assignment to locate Kavanaugh in “middle to late February of this year, 2019” and serve him with “a subpoena to appear in court.”
In making that attempt, Robertson said “I went to seven different locations,” which he said included several specific places in San Diego as well as Irvine, Lemon Grove and San Clemente. He said he initiated his search on February 23 and that he utilized information provided to him, social media leads, Kavanaugh’s known associates, and informants he had himself developed in the course of that effort. Robertson said he also checked jail custody databases to see if Kavanaugh had been arrested,  which availed him no information. Robertson said he had staked out one of what he thought would be Kavanaugh’s likely haunts but Kavanaugh did not show up while he was there.  At one point, as Robertson was on the verge of stating that his resources as a private investigator were less inclusive than those available to law enforcement, an objection by Supervising Deputy District Attorney Sean Daugherty foreclosed his answer.
Robertson said he had requested from the district attorney’s office its most current address for Kavanaugh on March 3, 2019 and was given an immediate response of 131 West Fir Street in San Diego. Maline asked Robertson if he went to that location to see if he could locate Kavanaugh.
“I did not, and the reason I didn’t was because I had already been there previously in February, and it was a bad address,” Robertson said.
“Did you get any other addresses from the district attorney’s office?” Maline asked.
“No, I did not,” Robertson said.
Robertson was unable to get any up-to-date employment location for Kavanaugh, he said.
“As of today’s date have you been able to locate or get any leads on where Mr. Kavanaugh is?” Maline asked.
“No,” Robertson said.
During her cross examination of Robertson, Deputy District Attorney Melissa Rodriguez established that Robertson was also involved in investigating other aspects of the Merritt case beyond those relating to locating Kavanaugh.
Using Robertson’s report, which referenced his effort to locate Kavanaugh to appear as a witness in the trial as beginning in February 2019, she disputed Robertson’s statement that he had begun looking for Kavanaugh in August of 2017.
“So, your report says you didn’t actively start looking for Kavanaugh until mid-February 2019,” Rodriguez said. “Is that an error?”
“Well, I started looking for Mr. Kavanaugh back in August 2017,” Robertson said. “In regards to this case, for a subpoena it was February 2019.”
“Okay, so you started looking for him in 2017, but you didn’t actually start looking for him in regards to this case until February of 2019?” Rodriguez asked.
“For the subpoena service, correct,” Robertson responded.
“And so, were you aware when this trial actually started?” Rodriguez asked.
“Yes,” Robertson said.
“When did this trial start?” Rodriguez asked.
“Early January 2019,” Robertson said.
“And so prior to that, you had not actually gone down to San Diego to look for him, right?” Rodriguez asked.
“That’s correct,” Robertson said.
“And so you started looking in mid-February of 2019, but I see you didn’t actually go anywhere until February 23rd of 2019, is that correct?” Rodriguez asked.
“That is correct,” Robertson answered.
“So that would be more clearly the end of February 2019, correct?” Rodriguez pressed.
“Yes,” Robertson said.
Rodriguez established that Robertson was actively looking for Kavanaugh, that is physically going to locations, on four days in February and March, the last being on March 21.
“At that point the defense had already started their case, right?” Rodriguez asked.
“I don’t know when they started their defense,” Robertson said.
“And then you looked again on the Twelfth of April, right?” Rodriguez asked.
“Yes,” Robertson said.
“And then again on the fourteenth, is that correct?” Rodriguez said.
“Yes,” Robertson said.
“And you didn’t look anywhere in Hawaii, did you?” Rodriguez asked.
“Did I look in Hawaii?” Robertson asked.
“Yes,” Rodriguez said.
“No,” Robertson said.
“But you looked at information and had been given information related to this case that Mr. Kavanaugh had previously been in Hawaii, right?” Rodriguez said.
“All I knew was he was allegedly there during the disappearance of the family,” Robertson said.
Rodriguez asked if Kavanaugh’s social media postings placed him in San Francisco.
Robertson said he had not checked that out.
With Rodriguez having opened the door with regard to Robertson not initiating his latest search for Kavanaugh until February of this year, Maline in his redirect examination of Robertson asked him, “Counsel asked you about the start date of the trial, right?”
“Yes,” Robertson said.
“And you said you took direction from the defense team, is that correct?” Maline asked.
Robertson acknowledged that was the case.
“Did anyone from the defense team ask you to go subpoena Mr. Kavanaugh prior to January?” Maline asked. “Not subpoena duces tecum, which is for documents, but to actually subpoena the person to show up?”
“No,” Robertson said.
“And you’re getting information from the defense team,” Maline said. “There was a witness list provided by…”
“Objection; relevance; argumentative; violates the court’s evidentiary ruling,” Imes interrupted.
“Overruled, in light of the cross examination,” Judge Smith said.
“You got information regarding the witness list that the prosecution provided, which had Mr. Kavanaugh’s name on it, is that correct?” Maline asked.
“Yes,” Robertson said.
“So, would it be fair to say in discussing that with the defense team, we relied upon the prosecution…”
“Objection; speculation,” Imes interjected.
“The objection is sustained as calling for hearsay,” Judge Smith ruled.
“You were told by one member of the defense team…” Maline began.
“Same objection,” Daugherty said.
“Sustained,” Judge Smith said.
“Did myself or Mr. McGee tell you…” Maline began.
“Objection; hearsay,” Imes said.
“What he was told?” Judge Smith repeated the mode of the question out loud. “Sustained as hearsay.”
“Did myself or Mr. McGee tell you…” Maline tried again.
Imes interrupted once more, “Objection; hearsay,” he said.
“Well,” said Judge Smith.
“It’s a question,” Maline said.
“Let me hear the question,” Judge Smith said.
“Did Mr. McGee or myself talk to you about Mr. Kavanaugh being on…” Maline said.
“Objection!” Daugherty fairly boomed, and then said, softly, hearsay; relevance.”
“You already brought out the fact that Mr. Kavanaugh was on the district attorney’s witness list,” Judge Smith said, cutting to the heart of the matter. “So, I think that answers the question as to when the parties started to look for him.”
After an absence of nearly two weeks, Merritt’s defense co-counsel, Jim McGee was in the courtroom on Tuesday. Since the last week of April he has been suffering with an undisclosed ailment. He attempted to participate in Tuesday morning’s proceedings, and did at one point lodge an objection to an answer provided by Sergeant Bachman as unresponsive, but was later overcome with fatigue and left the courthouse. In his absence, Maline has handled all of the questioning of witnesses that McGee was earlier scheduled to do. A key witness yet to be called by the prosecution is Dr. Leonid Rudin, an expert witness retained by the district attorney’s office who was not called to the witness stand by the prosecution as was earlier anticipated. McGee has the background in the area in which Dr. Rudin is expert, and both he and Maline want McGee to carry out the examination of Rudin. This has caused a delay, but Judge Smith, over prosecution objections, agreed to schedule Rudin’s appearance for May 21 to give McGee adequate time to recover and elicit what the defense says will be crucial testimony. If McGee is not able to do so at that time, Rudin’s examination will be done by Maline.
The prosecution team expressed irritation at the delays, and suggested that McGee is malingering as a ploy to benefit Merritt by provoking a mistrial. The prosecution also suggested that the defense overall was engaged in sleazy tactics, which included using the third party culpability defense relating to Kavanaugh, which it insisted should never have been an issue in the trial, given Judge Smith’s pretrial rulings.
Rodriguez accused the defense team of ignoring the guilt of its client and instead seeking to “point the finger at somebody else, which is what they’ve done the entire trial.”
She said that once the third party culpability “bell has rung” it is impossible to undo the damage that represents to the prosecution’s case. “The defense in this case has repeatedly violated this court’s order with respect to third party culpability,” she said.
Maline retorted by accusing the prosecution of “violating court orders on a daily basis.”
Daugherty weighed in, saying, “This is just delaying everything. At this point, all we’ve done in the last two weeks is reiterate everything that the jury already knows.”
When Judge Smith indicated he agreed, Daugherty said “So, if you agree, can you please stop it? This is cumulative.”
Maline lamented that the prosecution had continuously assailed the defense and used pejorative terms about it for pursuing a thorough and methodical defense of its client.  He said that was “impeding” the defense, which was contributing to the delays.
Judge Smith said, “I’ve allowed both sides to say things and do things that were improper and make allegations that were either partially true or not true at all. We can certainly sidetrack the whole trial and have a trial just on the conduct of counsel. That, of course, would be to the benefit of the defense, because we’d never finish the trial. So, I’m not going to do that. I’m just going to focus on the trial and let others deal with the misconduct of counsel at a later point.”
Imes accused the defense of “deliberate stall tactics where you don’t have experts completing work until the night before they testify, even though they’ve had the case for three, four or five years.”
Judge Smith then decried the constant bickering between the attorneys. “Every issue that comes up you say, ‘They did this and they did this and they did this, so we should get to do this.’”
That did not prevent Imes from personalizing things further.
“I happened to be at a social event with Mr. McGee on Saturday, where he was perfectly fine, drinking and dancing,” Imes said. “I’m starting to question that this unpreparedness with video, getting a witness here, repeating fact after fact after fact that is cumulative to the People’s entire case in chief and the defense’s cross examination of it is starting to appear like stall tactics, intentionally done, not that it’s a preparedness issue. I think the court, at Mr. Daugherty’s urging needs to control the proceedings a little bit because we’re going to start losing jurors, and we will end up in a mistrial because of that.”
Maline shot back, “Every time, the three of them [Imes, Daugherty and Rodriguez] get up, and like cackling schoolgirls, go through this thing that we’re engaged in some type of misconduct, and the court allows it to occur on a regular basis. So, should we sit down and just not say anything?”
At that point, Judge Smith, taking on the aspect of a junior high school principal before a room full of incalcitrant 7th and 8th graders, said, “It seems to me that both sides are more interested in attacking opposing counsel than they are in representing their respective clients. I think both sides, if given the choice of furthering evidence to support your side or attack opposing counsel, your first choice has been to attack opposing counsel and then try to work in the evidence. I guess you think that’s effective with a jury. I question that tactic, but if that’s the tactic, then so be it. I’m trying my best not to get drawn into that because again, I’m trying to keep the focus on the trial and not constant hearings to address the misconduct of counsel during the course of the trial.”