Kill Merritt Prosecutors Tell Jury In Penalty Phase As Defense Reviews Evidence

By Mark Gutglueck
This week prosecutors told the jury that found Charles Merritt guilty of the 2010 murders of the McStay family that they should not shrink from recommending that he be executed, while Merritt’s lawyers reiterated their belief in his innocence and asked the jury to make an unemotional review of the evidence they say brought the panel to an erroneous verdict.
In the week following the jury returning first degree murder verdicts against Merritt augmented by a special circumstances finding that he had engaged in multiple homicides, which opens the way under California law for the convicted to be subjected to the death penalty, the proceedings more fully moved into the penalty phase. Last week, the mother and brother of Joseph McStay – Susan Blake and Michael McStay – testified as victim impact witnesses as part of the prosecution’s effort to convince the jury to recommend that Merritt be put to death by legal injection.
Merritt, 62, was convicted June 10 of first-degree murder in the deaths of his former business associate Joseph McStay, his wife, Summer,  and their two children, Gianni, 4, and Joseph Jr., 3. After a five-month presentation of evidence by both the prosecution and the defense, jurors found unanimously that Merritt had murdered his business associate, Joseph McStay, as a consequence of a set of circumstances and a series of events that prosecutors alleged came to a critical head in on February 4, 2010 and involved Merritt’s embezzlement from McStay’s company, Earth Inspired Products. Earth Inspired Products sold and delivered high end water features – water fountains and artificial waterfalls – customers ordered from Joseph McStay and which Merritt constructed. It was the prosecution’s theory that Joseph McStay discovered those thefts, which entailed Merritt writing fraudulent checks against the Earth Inspired Products bank account, and when McStay threatened to report the thefts to law enforcement authorities Merritt reacted by killing McStay and his family in an effort to prevent himself from being subjected to prosecution and a lengthy prison sentence.
This week, two members of Summer McStay’s family, her sister Tracey Russell and her brother Kenneth Aranda, testified remotely by electronic means – the first from Greece and the second from Hawaii – offering their victim impact statements.
After those statements were concluded, Supervising Deputy District Attorney Britt Imes, the lead prosecutor on the case, offered the first installment of the prosecution’s final appeal to the jury.
“When a family of four disappears off the face of the earth, when a family of four is murdered, it tears a hole in the fabric of society,” Imes said. “It tears a hole that must be mended, so that the families and society can move forward, knowing that there was some resolution to why they were brutally murdered.   In the State of California, that’s the one opportunity we put forth to jurors, to make that decision.” While acknowledging it was a “daunting decision” Imes said it was “rightfully put to members of society to rectify that torn fabric of society.”
Imes said, “Your job in returning a judgment of death, each of you individually… must decide that, determining whether or not the aggravating circumstances outweigh the mitigating circumstances in such a substantial manner to make death the appropriate verdict.”
Imes conceded  “Now that you’ve heard the entire guilt phase and now that you’ve heard the entire penalty phase evidence, there are several of those factors from that entire record you heard no evidence of. You heard no evidence of violent criminal activity, prior felony convictions, any type of extreme mental or emotional disturbance, or that the victim participated in a homicidal act or that there was some moral justification or that the defendant acted under some extreme duress or substantial domination of another,  or his capacity was impaired due to mental disease or intoxication or he was an accomplice with a minor level of participation. Really, the evidence leaves you to weigh three factors: the circumstances of the offense, the defendant’s age and what’s called factor K, any other factor, any other piece of evidence, any other feeling or emotion that you believe could mitigate the defendant’s culpability in this case and mitigate his punishment.”
Imes said, “When we talk about age, that can be either a mitigating or an aggravating factor. If someone is so youthful and impetuous and impulsive, that can mitigate their culpability, and mitigate the severity of punishment a jury decides to give them. On the other hand, if the person is of an older age, of a decent intelligence, and has a way in the world, a knowledge in the world, that can be aggravating. What you say and what you weigh from that fact is that they knew better, that they knew the consequences of their actions, they knew the impact that their actions would have on society. In this case, you have a 52-year-old defendant as of February 2010 when all of the events in this case happened. Think of what an average person of 52 years has. Use your common sense. They know right from wrong. They’ve probably been raised right from childhood to know right from wrong. Common sense would tell you that. Over 52 years a person should learn what society expects, what society deems right and what society deems wrong. At some point, we should expect as a society, that a person of 52 years can conform their behavior to those rules, to those expectations. In this case, ladies and gentlemen, the defendant’s age is an aggravating factor. This is a person who was a businessman who interacted with other people, who had a relationship with Joseph [McStay] in a business sense and a personal sense. He had children. That is a person, one with their common sense would operate in a society knowing right from wrong, knowing the impact their actions would have on others.”
Imes said Merritt had the means, motive and opportunity to commit the crimes. He said Merritt had a familiarity with the victims, their home and their animals. He said that signs that there was no forced entry at the McStay home “pointed to someone [who] came in that house willingly, knowingly, acceptingly, someone they had a business and friendship relationship with for a number of years.”
Of Summer McStay, Imes said it was “clear and abundant that she was not only the protective mother of this family but she clearly did not like the defendant and clearly could have been a motivating factor to sideline him from the relationship with Joe. That familiarity with the home, the victims and animals gave the defendant an insight into carrying out his crimes that is more personal. This isn’t a stranger who kicked in a door. This is someone who walked in. That is a circumstance that makes this crime even more  horrific.”
Merritt, Imes said, “had time to accomplish it [the murders] and he was familiar with areas such as where the bodies were buried.  His financial relationship with Joseph in October 2009 drastically changed. His percentage, his payout dropped drastically. He did not want to be sidelined.”
Imes asserted that a part of Merritt’s motive was that “others were being looked at to replace him to do the jobs that maybe he thought he was the only one who could do them. How offended would you be as a person being replaced?  How would it be showing up at your office and all of a sudden there’s a new nameplate at your desk? That type of personal hurt and that personal motivation that drives a person ultimately to kill is an aggravating factor that may not be coming in a random door kick robbery murder by a stranger. He can keep the business and he can keep that gravy train from derailing and not be reported for theft and forgery.”
Imes said the murder of Joseph evolved out of “the ultimate of business disputes that ends in the most horrific way.” Imes asked if the killing of Summer McStay sprung from “a hatred for a strong-willed, outspoken woman who is even willing to criticize how he eats pizza at the table? Is it that strong-willed woman who is protective of her kids? Interfering with his business relationship with his gravy train? That becomes a very personal motive.”
With respect to the killings of Gianni McStay and Joseph McStay, Jr., Imes said, “What possible motive can a human being have to murder a 4-year-old and a 3-year-old? Are they the only people left in that house after killing Joseph and Summer that can identify him? Or is it cold, callous collateral damage? That’s simplistic to look at. If it is cold, callous collateral damage, then it’s evil. What line must be crossed, ladies and gentlemen, to take the life of a defenseless 4-year-old, and a defenseless 3-year-old? What line in our society and in our laws and our human interactions with each other to take their lives? Their is no motive that can be ascribed to the killer of a four-year-old and a three-year-old that passes muster.”
The murders and their brutality were elements controlled by Merritt, Imes asserted. Similarly, Imes said, Merritt orchestrated a set of events and its aftermath in a way that he believed would avoid the detection of his crimes and would insulate him from accountability.
“The circumstances this case sits in were determined by the defendant,” Imes said. “The fact that the remains sat in a grave three years nine months seven days undisturbed except for animal activity and weather created a lack of forensic evidence. The fact that they went unreported, unnoticed as missing for eight nine, ten days leaves us with little forensic evidence in the home. You saw that. That leaves a lot of unanswered questions.”
Despite crucial information about exactly what happened being missing or nonexistent, Imes asserted that an aggravating factor in the murders that could be recognized is Merritt’s “personal involvement, up close and personal with” the victims during murderous acts the case entailed.
Imes contrasted Joseph McStay, whom he idealized as a “giving and compassionate” person with Merritt, who met that compassion with brutality, Imes said. Merritt’s was, Imes said, “a familiar face that was let in that door on the night of February 4, since it wasn’t kicked in and no windows were broken, that turns into a monster of destruction.”
Merritt’s monstrosity, Imes said, consisted of his being “a person that you have a business relationship and friendship with driven… out of greed and selfishness to confront him [McStay] in such a violent manner, face to face… beyond what was really necessary. What exactly happened in the house that night no one can tell you, neither us nor the defense, no[t] law enforcement, not even a psychic. Brutal violence on a four-year-old really needs no more discussion.” Imes said the killing of Joseph McStay, Jr. was an up-close, personal brutal assault on a three-year-old who just wanted to dig up dinosaurs.”
Imes said Merritt deserves to be killed.
“Those circumstances, ladies and gentlemen, warrant a finding of death,” Imes said. That fabric of society must be mended when these four are taken from the face of the earth. None of anything that can be said about the defendant, his business practices or what you can glean from the evidence that is in the record lessens the gravity of this offense. The circumstances of taking and brutally murdering a three-year-old and a four-year-old alone are so egregious that there’s little on this earth that could minimize that gravity. You could simply show mercy. And they [the defense team] may ask you for that. ‘Show mercy.’ What Mercy was shown to Gianni? What mercy was shown to Joseph, Jr., let alone Summer and Joseph? To receive mercy, you should give mercy. The actions of the defendant for the crimes of which he has been convicted deserve no mercy.”
Any appeals the defense makes with regard to lingering doubt, Imes said, “is to call into question those resolutions you came to. Your convictions were appropriate. [Defense] Counsel is going to ask you to doubt that judgment, doubt your wisdom, doubt your common sense when you convicted the defendant of murder. There was no doubt. You made the right decision to convict because you believe it was proved beyond a reasonable doubt.”
Whatever doubt could be said to have existed in the case was attenuated, Imes said, by the consideration that Merritt “was in control of any evidence that was left behind after their murders,” and it was he “who hid those bodies in a remote location where they sat undetected for three years nine months seven days” so that he “covered his tracks, his greed and his violent reaction.”
Imes asked the jury to “return collectively the appropriate judgment of death.” He said the jury needed to set aside whatever compassion it might feel for Merritt’s family, make a comparison of the aggravating and mitigating circumstances the case presents and see that “the aggravating [element] is so substantial that it leaves you really only one just choice alone. The circumstances of the case, the brutality of the crime, the motive for the crime and all of the totality of that evidence that you saw justifies only one verdict, and that is death. The death penalty is an appropriate sentence, punishment for this defendant. The gravity of the offense so substantially outweighs any possible mitigation, any possible mercy you could show, that the only true and just outcome is death.”
Supervising Deputy District Attorney Sean Daugherty acknowledged that the decision the jury was being called upon to make with regard to Merritt’s appropriate penalty was a “solemn” one.  The concept of accountability, he said, required that such a decision be made unflinchingly.
“The decision you make in this phase centers around accountability,” Daugherty said. “Accountability gives meaning to life. When a crime is so terrible it tears at the fabric of society, when it’s so enormous, it’s so brutal, when it’s so horrible and it’s so senseless, the only right decision is to remove the person who made that tear from society. Make no mistake about it. I’m asking you to do that in this case without hesitation. This is that kind of case. The death penalty is meaningless if it’s not imposed in this case.”
Of the jury’s verdict and the defense’s appeal to the concept of lingering doubt, Daugherty said. “”They [the defense team] are saying you got it wrong. Each of you know beyond a reasonable doubt that’s the murderer,” Daugherty said, pointing to Merritt.  “You all agreed ten days ago or a little more, he did it. The decision now is what’s appropriate, what’s appropriate punishment. Make no mistake about it. You’re not in this position because of bad prosecutors. You’re not in this position because of bad police. You’re not in this position because of the DA’s ego or the police’s ego or pride or anything else. You are here because he murdered four people. You’re here because of his actions, because of his greed, because of his choices. To suggest otherwise, to suggest you are here because of our ego or our pride is irresponsible. It’s not true, and you know it.  We’re here because of him,” Daugherty said, indicating Merritt. “You’re here because of him.”
Daugherty said that though the crime occurred more than nine years ago, “impacts are still felt today. The family members are still feeling the effects.”
Utilizing the courtroom’s overhead visual monitors to play homemade videos the McStay family had made which featured the playful banter of the family, Daugherty dramatically shut off the video. “Those voices will never be heard again because he murdered them,” Daugherty said.
Daugherty warned the jury that the defense team would “pretend to make up lingering doubt” concerning Merritt’s guilt. “Those voices were silenced at the hands of Charles Merritt,” he said.
“To not give a death verdict is an injustice in this case,” Daugherty insisted. “The death penalty is meaningless if it is not given in light of these factors in aggravation. A verdict of death brings meaning and dignity to those lives and the lives that are still affected by this.”
The penalty phase of a capital case provides both sides, the prosecution and defense, the opportunity to offer testimony and evidence for the jury’s consideration. In the case of the prosecution, that testimony generally consists of victim impact statements, offered by the family or friends of those killed. The defense is entitled to put on character witnesses for the convicted defendant in an effort to instill with the jurors an understanding that the individual they have convicted has redeeming qualities that weigh against him being condemned to execution by the state.
Merritt’s defense team, consisting of James McGee, Rajan Maline and Jacob Guerard, elected to forgo the opportunity to both cross examine the prosecution’s victim impact witnesses and offer character witnesses and mitigation evidence on Merritt’s behalf. Instead, the defense sought to use the opportunity to have the jury revisit the evidence presented to them during the trial that convinced them of Merritt’s guilt, in essence reframing the defense case made during the guilt phase of the trial, and appeal to any “lingering doubt” the jurors might yet have. By this strategy, the defense team hopes to convince at least one of the jurors that the application of the death penalty against Merritt might not be morally justifiable. As in the guilt phase, where a unanimous verdict of guilt was needed to convict the defendant, in the penalty phase the jury must unanimously recommend putting Merritt to death for that punishment to be meted out to him.
“I’m not going to pretend we are not disappointed in the verdict,” Maline told the jury on Thursday. “We are. To say we are just disappointed would be an understatement. Having said that, we accept it. We have to. That’s our system. Contrary to what you heard yesterday, we respect your work, because we know how long its been, what you’ve had to go through. We disagree [with your verdict]. Because we disagree, there is this concept called ‘lingering doubt.’ Lingering doubt isn’t there to just say, ‘You got it wrong’ or ‘You are mistaken.’  Lingering doubt is a concept that is used because of the nature of trials and the nature of deliberations.”
Calling deliberations a “collaborative effort,” Maline told the jury, “Whenever there’s a collaborative effort, some people may be more assertive and some people may not be. Some people may have a personality that says, ‘I am afraid to speak out’ or ‘I may not be as smart as them’ or ‘They sure as heck know what they are talking about. I don’t want to say anything.’ So, sometimes people in a collaborative effort remain quiet, but they also have their own individual opinion. Lingering doubt allows those folks to be heard in their own way. Lingering doubt is an individual decision. When you go back there [into the deliberation room] now, it’s different. It’s not a collaborative effort. You don’t have to ask people what the evidence was. It’s a vote. You don’t have to tell anybody. Nobody has to know, and you can express your opinion that way.”
Maline then moved into his assault upon the validity of the prosecution’s case.
“From the very beginning, this case screamed ‘Doubt,’” Maline said. “[The] San Diego [County Sheriff’s Department] was involved three years and there was no progress. [The] San Bernardino [County Sheriff’s Department] was involved for almost a year. Nobody had answers to the fundamental questions in this case.”
As early as during jury selection, Maline said, “My biggest fear in this case was the human emotion part of it, that when you have a family that is killed in the brutal way that his family was killed, it’s going to be very difficult to set that aside and say ‘This family doesn’t deserve some type of closure, some type of justice.’ That pull on everybody to somehow make it right for them finally after so long, we knew that was going to be strong. Of course you have the presumption of innocence and all of that, but we’re human beings, too. So, my biggest fear was, ‘Gosh, can they forget that?Can they forget their human nature to bring closure to this family?’  Lingering doubt gives you the ability to make a decision without consultation from fellow jurors. It allows you to make a decision to respect the sanctity of life, because this decision is not based on revenge. I heard what counsel [the prosecution] had to say yesterday and their anger is justified. Their anger about this family is justified. But that’s not the law. The law isn’t revenge. The mitigating factor I’m talking to you about today is lingering doubt. Doubt is unanswered questions. That’s what it is. When you don’t know the answer to a question, you have to have doubt. This case is filled with unanswered questions, the same unanswered questions that existed when this family disappeared in February of 2010. And I would submit to you, ladies and gentlemen, we’re no closer today to finding out what happened in February of 2010.  Where did this crime happen? When did it happen? And how did it happen? Who was in the house at 8:05 pm [February 4, 2010] making checks, not checks, but a check alignment page, between 7:55 and 8:05 pm on February 4th [2010]? Who made a call from Joseph’s telephone at 8:28 pm from Fallbrook?  Who drove the car to San Ysidro, the Trooper? And who do these three allele lists [DNA readings] belong to? Who are they? There’s certainly enough characteristics there for a human being.”
Maline’s reference was to trace amounts of DNA that were found on a cord that was used to bind Joseph McStay and which was yet wrapped around his carcass in the grave in which he was buried, as well as trace DNA on one of the cups of Summer McStay’s bra found at the gravesite. A scientific analysis sourced that DNA to three different yet-unidentified males, none of whom matched Charles Merritt, Joseph McStay, Gianni McStay or Joseph McStay, Jr.  Maline suggested that the prosecution was based on an incomplete investigation and analysis, which was demonstrated by the refusal of the sheriff’s department and the prosecution to run the DNA results taken from the material gathered from the cord and the bra through a data base of DNA profiles of those convicted of felonies and other known criminals throughout the United States that is kept by the FBI.
“That white cord bound Joseph,” Maline said. “If those allele [DNA component] lists are just nothing, then why not just run them? Why not just run them and see what it is? This is touch DNA on the white cord that bound Joseph. Why would someone’s DNA be on that? Wouldn’t that person having something to explain?”
Maline continued cataloging the unanswered questions in the case.
“Who was in the house [the McStay residence] on February 8th [2010] between 2 and 4 am?” he asked. “These are all unanswered questions. The why, the when and the how. That’s the meat and potatoes of any crime. So in this case, the where. We thought the theory from the very beginning for the last four years was they were killed in the house. That’s what we prepared our defense on and that’s what the investigators said. They [the prosecution] went back and forth. They teased you with it happened on the fourth [February 4, 2010] with statements such as ‘Mr. Merritt went off the grid, giving him enough time to clean up the crime scene.’ They’re referring to the house. Fresh paint in the house, teasing you again that this crime happened in the house, but no evidence of it. Where did this happen,  in the house or somewhere else? Were they abducted? Were they abducted on the 4th or were they abducted on the 5th, in the early morning hours when there was breakfast food out?  All of these unanswered questions change the time line.”
Maline said, “[San Diego County Sheriff’s Department Homicide Detective Troy] Dugal back in San Diego in 2010 indicated there was no evidence – he said it on the stand – no evidence that a crime had been committed in that house – a crime, not just a murder but a crime, abduction, anything.”
Detective DuGal’s extensive search on February 19, 2010, pursuant to a warrant he obtained and using cadaver dogs turned up no evidence of a crime at the house, Maline said,
Maline pointed out that there was confusion and disagreement among law enforcement personnel with what had been touted by the prosecution as a major piece of evidence, brief footage of a vehicle leaving the McStay home’s driveway at 7:47 pm in the evening on February 4, 2010. San Diego County authorities assumed the vehicle to be the McStays’ 1996 Isuzu Trooper. San Bernardino investigators rejected that assumption and, after Merritt surfaced as a suspect, themselves assumed it was Merritt’s truck.
“But that’s anything but clear,” said Maline.
Maline moved on to February 6 in the prosecution’s timeline. “What happened on February 6th in the desert?” he asked. “Initially the theory was he buried the bodies on the sixth. That’s what [the] San Bernardino [County Sheriff’s Department] alleged, that Mr. Merritt buried the bodies on the sixth. But that changed when [FBI agent Kevin] Boles took the [witness] stand. It changed in mid-trial because the records that Agent Boles reviewed, the [cellphone] call data records. Based on his new training, it’s the beginning call that provides location data, not the ending. He had to change everything.  Those changes, as you saw, changed the whereabouts of Mr. Merritt and where he was pinging from and whether or not he was mobile.” Thereafter, Maline said, the prosecutors dropped their insistence that Merritt had buried the bodies on February 6.
Maline referenced the consideration that there were two different sets of vehicle tracks at the gravesite.
“How did this crime occur?” Maline asked. “Was it one person? Was it two people? The theory that the prosecutors have gone with since the beginning was it was one person. It was Mr. Merritt. And he killed them in the house and he loaded up the bodies in his truck and then buried them on the sixth. Did anyone ask how it would be possible for one person to do? Did anyone ask in the jury room, ‘Hey, wait a minute, there’s two different vehicles?’ There’s two different size tracks [at the gravesite]. There’s 73 inches and 76 inches. And that’s their [the San Bernardino County Sheriff’s Department’s and the prosecution’s] measurements. Actually, Mr. Liscio [an expert witness called by the prosecution] said it [the width of the wheel track on Merritt’s vehicle] was 71.5 inches. That doesn’t match Mr. Merritt’s truck. Those are two different measurements.”
“There’s not one single shred, speck, molecule – you name it of evidence, blood or otherwise, that ties Mr. Merritt to this crime,” Maline said. “Not one. That’s the state of the evidence in February of 2010 and that’s the state of the evidence today.”
Maline then played a clip of Imes’ closing statement in which he was heard saying that in order to obtain a conviction, the burden of proof on the prosecution “does not require us to prove where. It does not require us to prove when. And it does not require us to prove how.”
“Oh really?” Maline said. “What have they been doing for the past four years? That’s what we based our defense on, to combat the things that they said. Every time they put out a theory, we would provide a defense to it. So they changed.”
Maline continued. “With regard to where, when and how,” he said, “They don’t have proof beyond a reasonable doubt. You have the who. They pointed the finger at Mr. Merritt and called him a bunch of names. ‘Greed.’ Shouting, ‘Greed, greed,’ over and over again. It’s interesting to note that no matter how many times he [Imes] shouted it, he didn’t produce one witness, they didn’t produce one witness that said Mr. Merritt did a bad job on any job. They didn’t produce one witness who said his work was poor or that he didn’t complete a job. You saw how many jobs they were doing and the hundreds of thousands of dollars worth of business they were doing each year. But they shouted it: ‘He’s greedy. He steals. He does this. He does that.’ Under the authority of, for lack of a better word, the law, the police, whom we all respect, law enforcement, these prosecutors wear these little badges. And we all say, ‘They must have some authority. They must know something. If he’s shouting it, the louder he’s shouting, it must be true.’ But he didn’t produce any evidence Mr. Merritt stole anything, he did bad work. He just shouted it. They shouted it.”

Maline vectored the jury’s attention to FBI Agent Boles’ testimony that Merritt’s cellphone data did not place him at the gravesite as the prosecution said and established only that Merritt was somewhere in the High Desert on February 6.  “Agent Boles never said he was at the gravesite,” Maline said.
In presenting evidence and testimony, Maline said, the prosecution left out information that controverted its theory of guilt, “That’s dirty pool,” Maline said.
Maline reminded the jury that Merritt, contrary to what the prosecution said, voluntarily subjected himself to the questioning of the  San Diego County Sheriff’ Department shortly after the family’s disappearance in 2010 and went voluntarily to an interrogation by  San Bernardino County Sheriff’s Department investigators looking into the murders four-and-a-half years after their occurrence,  and gave truthful answers to the questions asked him. That Merritt or anyone would not know his precise whereabouts on a day four-and-a-half years previously is entirely understandable, Maline said. That Merritt was unable in October 2014 to give a strict and entirely accurate accounting of where he was on February 6, 2010 was not suspicious, as the detectives implied in the application of their interrogation technique against him, Maline said, but rather an indication of innocence. Had Merritt given ready answers to such questions, four-and-a-half years later, Maline suggested, it would have been a more credible indication that his client was involved in the murders.  “It was a no-win situation to go into that interview, so that these prosecutors could make hay out of anything he said. But they shout it from the rooftops, ‘He lied.’ And then they play half the clip. ‘He lied.’  And they say it loud and convincingly with their badges, ‘He lied and we want justice for the family.’ So, we say, ‘Okay! He lied.’”
Maline then played a clip of Deputy District Attorney Melissa Rodriguez’s closing statement in which she stated that the prosecution had not alleged Merritt buried the bodies in the desert on February 6. “Nobody’s ever sat here and told you the bodies were buried on February 6th,” Rodriguez was seen and heard saying.
Maline then used evidence and testimony presented by the prosecution to deconstruct the prosecution’s timetable relating to Merritt’s departure on February 4, 2010 from Rancho Cucamonga to the McStay home in Fallbrook in north San Diego County to commit the murders. He started with a phone call from Joseph McStay that was placed to Merritt as the 6 pm hour was approaching that Thursday evening. Cellphone records show Merritt was at or near his home when he took the call. “Their theory is that Mr. Merritt drove there after 5:48 [pm],” Maline began. “Remember, that’s the call’s at 5:48. He’s in Rancho [Cucamonga]. He pings in Rancho, at his house and then, according to the prosecution theory, he drives down to Fallbrook. So, let’s assume we are going to start our timeline at 5:48, because we know he’s in Rancho. He pings off his home tower at that time, at 5:48 and then, according to the prosecution, he heads down to Fallbrook to kill the family. So let’s give a couple of minutes to get into the vehicle, the truck or whatever, to go down to Fallbrook. Let’s say he leaves at 5:50. We’re talking about a Thursday afternoon. It’s 70 miles according to [San Bernardino County Sheriff’s] Sergeant [Joseph] Steers and you have to travel south on the [Interstate] 15. I don’t know if any of you know about the 15 or been on the 15. I would suspect, even Detective-now-Sergeant Steers indicted, that there’s going to be traffic, so it’s not going to be 70 miles at 60 miles per hour. It is going to be delays. So, what time does that place Chase in Fallbrook, if he left right at 5:50 and headed down there? Could he get there in an hour and ten minutes like Sergeant Steers did with no traffic? I doubt it. Let’s add 15 minutes. I think Sergeant Steers said that was a reasonable – 15 minutes, even 30 minutes – was reasonable to assume traffic. So that would get Chase in Fallbrook at 7:15 or 7:30. Now, there’s a problem with that.”
Maline then played a video clip of the testimony of Jennifer Mitchely, who lived just up and across the street from the McStay family in February 2010, and whose security video camera captured grainy footage of the lower portion of a vehicle pulling out of the McStay family’s driveway at 7:47 pm on February 4. Under questioning, Mitchley testified that her security video system recorded and stored the video footage from that camera in one hour blocks and that she had reviewed the footage from the 7:00 pm to 7:59 pm time period for February 4, 2010 in its entirety.
“The video doesn’t start at 7:47, ladies and gentlemen,” Maline said. “The video starts at 7:01. There’s no car pulling into the driveway, backing into the driveway, because remember, the vehicle that comes out at 7:47 comes out with the headlights first. Miss Mitchley would have seen a vehicle. She watched it. Not only did she watch that hour before, but she watched hours and hours of it. There’s no vehicle coming in, backing into the driveway. So, what time? If Chase drove there and left his house at 5:50 he would have had to have gotten there before 7:01 to not be captured on the video. And that was just not possible. He could not have arrived there at that time, given the time of day. With no traffic whatsoever, maybe, maybe he would have made it, but Thursday at 5 pm. 5:30, 6 o’clock traffic, there’s no way. His vehicle is surely not shown pulling into that driveway. She watched hours and hours of it, before and after, and there’s no indication that Chase’s vehicle or any other vehicle backed in in that fashion.”
Maline continued, “We do see a vehicle leaving at 7:47. If you go with the theory that they were killed in the house and loaded up and then the vehicle pulls out at 7:47, how is that possible? How is it possible for one person to do that? Then they [the prosecution team] told you, and they glossed over this, and rightly so if they’re going to try and convince you, a check alignment page is accessed, sent to the print spooler from 7:55 to 8:05.  How is that possible if Chase left at 7:47? How was that possible, ladies and gentlemen? What was their theory on that? Did he double back? They’re the ones who said it was Chase who did that. How? Did he drive back? It’s not on the Mitchley video, driving back. Did he park down the street and walk back and leave dead bodies in the truck? Or live bodies? How did that happen?”
Maline asked, “So who did that check activity, that check alignment page at 7:55 and 8:05 pm? Is it reasonable that it’s Joseph?  Their theory about the checks after the meeting on the fourth was that Chase did that at home. So, why would he double back and write checks on the [McStay] home computer or try to write a check, and really it’s a check alignment page, why would he do that if he knows he can write the checks at home? Wouldn’t the killer want to skedaddle and get the heck out of there?”
Maline contested the prosecution’s allegations that the checks that Merritt wrote to himself on the Earth Inspired Products account in the early days of February 2010 constituted embezzlement. He pointed out that the prosecution maintained that Merritt’s claim that the checks were intended to pay for work on two artificial waterfall projects, one commissioned by a customer in Saudi Arabia and another ordered by Paul Mitchell studios, was false. He said the prosecution made this accusation against Merritt while maintaining that there was no evidence that deposits toward either of those projects to initiate the work had come in to Earth Inspire Products. Maline then played a video, displayed on the courtroom’s overhead monitors, of a portion of Imes’s closing statement in which he referenced a check made out to Merritt for $2,495 with a memo line indicating it was intended as going toward the Saudi Arabia project. “What is interesting to note, there is no indication that full deposits had been received for the Saudi Arabia project,” Imes was seen and heard saying on the video.
Maline then showed two separate records for Joseph McStay’s account for Earth Inspired Products documenting that on January 22, 2010, a  $30,735 wire transfer was made into the account from a customer in Saudi Arabia.
“So, what Mr. Imes told you there in that argument was not true,” Maline said. “I beg to differ with him. The interesting part about that scenario is not that the deposit wasn’t received as Mr. Imes said. The interesting part about it is he knows that’s not true.”
Maline then displayed on the courtroom’s monitors a copy of a $16,000 check that Earth Inspired Products had received from the Paul Mitchell Salons’ parent company together with bank records to show the check was deposited into the Earth Inspired Products bank account on January 26, 2010.
“That’s the $16,000 check they received from Paul Mitchell,” Maline said. “These are now pending credits for Chase. They got the deposits. Chase is going to go do the work and he’s going to be paid the money. That’s the way they did their business for three years prior. So the Paul Mitchell deposit had already been received and now they’ve got to go do the work. And that’s why checks are generated, not to steal them, to do the work. The premise on the theft was they hadn’t even received the money from these deposits, and that’s simply not true.”
Maline said the prosecution’s assertion that Joseph McStay’s call to Union Bank on February 4, 2010 constituted a report of theft from his account perpetrated by Merritt was demonstrably false. He pointed out that the call was made directly to the phone number of Jerome Belen, a financial services officer at the Union Bank’s San Clemente branch, most likely in conjunction with Joseph having opened an account for Merritt with the bank the previous day, February 3, as evinced by the consideration that McStay had written a $100 check to Merritt to serve as an initial deposit into that account to create it. The prosecution would have called Belen as a witness, Maline said, if he could have testified to having received a call from Joseph McStay relating to fraudulent activity on the Earth Inspired Products account.
Maline controverted Imes’ suggestion that Joseph McStay had not driven to Rancho Cucamonga to meet with Merritt on the afternoon of February 4, 2010 for a discussion with regard to ongoing business, using multiple grounds, including conflicting statements from Supervising Deputy District Sean Daugherty, another prosecutor assigned to the case, as well as FBI Agent Kevin Boles, all of which indicated that the meeting had taken place.
Maline called into question the prosecution’s allegations that Merritt had driven the McStay family’s Isuzu Trooper to a mall parking lot in San Ysidro something less than a half mile from the Mexican border on February 8, 2010, where he abandoned it. Using information gleaned from Merritt’s cellphone which placed him in other locations throughout the day, Maline asserted it would have been impossible for Merritt to have driven to the southernmost portion of San Diego County and back within the timeline the prosecution specified.
“In order for Mr. Merritt to have driven the Trooper to the San Ysidro border, Mr. Merritt would have had to have dropped it off by 11:30 [am] at the very, very latest,” Maline said. “Why? Because at 1:30-ish, he’s on the 91 Freeway traveling west in Corona, the western part of Corona, and he then travels from that time, 1:30-ish up from that time up to the Rancho Cucamonga area and his phone pings for the rest of that day in Rancho Cucamonga. So, in order for the 8th [February 8] to work in their timeline, he had to have dropped the car off at the San Ysidro border at the latest at 11:30, and then book it as fast as he could to get to the 91 at that time. Anything after 11:30 is not possible.”
The problem with that, Maline pointed out, is two-fold. In the first place, the Isuzu Trooper was not noticed by the security detail working the mall parking lot until much later in the day, with one of the security guards, James Murray,  noting its presence on the record at 9:18 pm. Moreover, Carmen Garcia, who worked at Metro Sheet Metal, the foundry in Asuza where fabrication work on the Earth Inspired Products waterfalls was carried out, saw Merritt there in the mid-morning of February 8.
Maline brought into question a central element of the prosecution’s case.
“They wanted to suggest to you that there was a bad business relationship, that there was some type of problem between them [Merritt and McStay],” Maline said. “There’s no evidence of that, yet they argue it to you. They were doing great things together They were looking forward to 2010 to expand their business.”
The prosecution had mischaracterized routine issues with Merritt’s cellphone connectivity such as spotty reception, shutting the device down for the evening or a depleted battery, interpreting them in sinister terms, Maline said.  “The prosecution [used] phrases like ‘off the grid,’” Maline said. “You and I, when we go to bed, we put our phone next to us or we go to a location where there’s no reception or we turn off our phones for whatever reason or we run out of battery like I frequently do, that’s what happens in life. Not with Chase Merritt. He’s ‘off the grid.’ Off the grid so he can go clean the killing mess in Fallbrook. It’s all nonsense, and there’s no evidence of it.”
Maline said, “They can point the finger at anybody. They’re skilled lawyers. Surely they can do it and make up anything they want around it. It sounds chilling. When you say somebody’s greedy and they’re a thief and they’re this and that, and we’re going, ‘Yeah.’ And you have a grieving family. We want to do something for that family. So, we’re receptive to those words, especially when they’re barked out so loud and so convincingly.”
Maline vectored the jury’s attention to Joseph McStay’s missing laptop.  He presented photographic and digital information from other computers in the McStay household as well as the digital data analysis done by the defense’s computer forensic analyst, Bryan LaRock, to demonstrate the device existed, despite skepticism about it expressed by the prosecution. “So what happened to this laptop?” Maline asked. “Where is it? What information is on that laptop? Does it have information about checks? Writing checks? What’s on it?”
Maline took issue with the prosecution’s out-of-hand dismissal of the evidence found in the grave relating to the DNA of three unidentified individuals. The prosecution downplayed the validity of the probabilistic genotyping the defense’s technical expert, Dr. Mark Perlin, used in drawing his conclusions. “Technology has advanced,” Maline said. “Probabilistic genotyping is what is used because many times you have molecular and microscopic portions of DNA that are analyzed on a routine basis, including in this county.”
The DNA found on the white cord wrapped around Joseph McStay in the grave pointed to the real killers of the McStay family, Maline said. The prosecution had to find a way around that evidence to get a conviction of Merritt, Maline said.
“They chose an effective way, which is to ignore it, and hope that you will, too,” he said.
Maline told the jury it had been stampeded and buffaloed into returning guilty verdicts on the multiple charges of murder against Merritt, but that once the rush was over, they would be able to make a more contemplative analysis of what they had done and see the error they had made.
He told the jury that there was “gavel-to-gavel coverage” of the trial “on the internet  You can actually watch it. This is going to be probably the first time a jury in a death penalty case can have coverage gavel-to-gavel” and review its work in granular detail. “When you are free form the restrictions of the trial, you can go and watch it,” Maline said. “You’re not only going to be able to see the trial, but you’re going to be able to see the motions, everything that you guys had to wait outside for, you’re going to see it all. It’s all on the internet, everyday. You’re going to see that these prosecutors sold you a bill of goods You’re going to see that this family is not getting justice. Now as a group, deciding on it, especially while you respect one another, it’s hard to tell your fellow juror, ‘No, that’s not right.’ But maybe a month from now or maybe two months from now, maybe a year, at some point you’ll reflect on this, and maybe you will watch that gavel-to-gavel coverage, and you’ll say, ‘There was no evidence.’ There was a lot of barking, and a lot of screaming and a lot of shouting, but there was no evidence. There was never a theft, ever.”
Maline, who had addressed the jury from behind a podium set up directly in front of the jury box, closely read the panel’s body language, collectively and individually, throughout his presentation.
“It’s hard for me to say these things to you, and it’s hard for you to listen to me, I can tell,”  he said.  “Being the realist I am, I understand that many of you have tuned me out, and will continue to tune me out,  and that’s okay, because I know there’s a few of you who understand what I am saying and agree with at least the premise that you may have been sold a bill of goods. You don’t know it now, because you can’t have access to anything. You will know it soon. But to those few of you, you can go and vote with the confidence that you don’t have to answer to anyone. No one has to know what your vote is. You can just go do it. Mr. Merritt is entitled to, and the law says he is entitled to and the judge read you an instruction that said Mr. Merritt is entitled to, your individual opinion.”
Earlier in the week, Kenneth Aranda, Summer McStay’s brother, testified via a Skype video hook-up from Hawaii. He called her a “great sister” who was “very strong, very smart” and who “always read books. Education and family were very important to her. She was very much an intellectual and she was always trying new things,” he said.
He said he remained in contact with his sister despite a permanent move he made to Hawaii in 2003, and that he returned to stay with her and his brother-in-law, Joseph,  and eventually  their children as they came along, every year. “We were very close,” he said.
He said he surfed and snowboarded with  his brother-in-law, whom he referred to as “Giuseppe.”
He recalled being at the McStays’ apartment in San Clemente when his nephew Gianni was born.
Aranda said that as a mother, Summer was very devoted to her children, saying she “never left their side, tended to their needs” and was “very protective.”
He said the family’s murder had affected his life “drastically.”
Daugherty asked him if he had “seen a change in your mother since Summer went missing and since the discovery the remains?”
Aranda said the ordeal had resulted in his mother having “mental breakdowns. She’s just not mentally there anymore, and it completely wiped her out physically.”
Tracey Russell, Summer McStay’s sister, testified that she was close to her sister and that “Summer always expected and wanted the best out of all of us, my brother and myself.”  As a child, she said, she “played dolls” with her sister and got from her “sisterly advice.”
She said of Joseph McStay that her sister told her she “adored him and finally met someone she could start a family with.”
She described her brother-in-law as “Jovial, kind, free-spirited, always laughing, always joking, silly” which was a counterpoint to her sister who was somewhat “strict.” Of Joseph, she said, “We hit it off pretty quickly.”
Of the McStay family, Russell said, “They were always together. Joey worked out of the house, so they did everything together, parks and bikes, crafting. They were always together, inseparable.”
Russell testified that the deaths of her sister and her sister’s family were hard on her mother, Blanca Aranda, who had a  mental breakdown as a consequence of what had happened. She said her mother has delusional conversations with her sister.
Russell said her children were robbed of their relationships with their cousins.

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