Joining With Jury, Judge Sentences Merritt To Death In McStay Family Murders

On Tuesday, January 21, more than a year after his trial in the 2010 murders of the McStay family began, Charles, “Chase” Merritt following a series of interminable delays was handed a death sentence, which included being consigned to life without the possibility of parole for the killing of his business partner and three sentences of death for the murders of his business partner’s wife and two children.
Before pronouncing sentence, Judge Michael A. Smith first denied a motion by Merritt’s attorney, filed that morning, calling for the judge to remove himself from the case based on what was alleged to have been his bias in the case.
Merritt’s sentencing was originally scheduled four days previously, for the morning of January 17, Friday of last week. But his attorney, Raj Maline, had filed a motion for a new trial based on prosecutorial misconduct in the weeks prior to that hearing and on Friday morning had augmented that filing with another, one that sought a new trial based on ineffectiveness of counsel by Maline’s one-time law partner, James McGee, who had represented Merritt in conjunction with Maline and McGee’s associate, Jacob Guerard, during the nearly six-month long trial that was staged before the jury from January until June of 2019.
On June 10, 2019, the jury had returned guilty verdicts in the killing of Joseph McStay, his wife Summer McStay and the couple’s two sons, four-year-old Gianni and three-year-old Joseph, Jr. On June 24, 2019 the jury recommended sentences of life without the possibility of parole for the killing of Josrph McStay and the death penalty in the killing of the Summer, Gianni and Joseph, Jr.
Thus the near capacity crowd that had assembled on January 17 in Department 1, the largest courtroom at the 11-story San Bernardino Justice Center, had to wait patiently throughout the earliest part of the morning while Judge Smith read the 91-page brief that accompanied Maline’s latest motion, and then sit patiently while Maline presented an oral argument in favor of the motion for a new trial based on prosecutorial misconduct that extended itself into the noon hour. After an abbreviated lunch break, the courtroom spectators returned, at 1 p.m., upon which they learned as the proceedings picked up once more that Merritt wanted to fire Maline on the spot. There ensued what could only have been a very intense exchange between Maline, Merritt and Judge Smith in the latter’s chambers. After this further delay, all three returned to the courtroom and Judge Smith denied Merritt’s motion, whereupon Maline reassumed the attitude of a defense attorney dedicated to his client, putting his former law partner, Jim McGee, with whom he had represented Merritt during the marathon five-month-and-three-week-long trial proceedings last year, on the witness stand and subjecting him to a round of questioning that was angled toward suggesting that McGee had been remiss in failing to fully explore the degree to which the prosecution and one of its witnesses, FBI agent Kevin Boles, had misrepresented the technical precision of cell phone data relating the cell phone Merritt was using in 2010. The prosecution alleged, and Boles testified, information gleaned from Merritt’s cell phone activity suggested that Merritt was at the McStay home in Fallbrook on the night of February 4, 2010, when the victims disappeared and when the prosecution maintains they were murdered. Merritt’s cell phone data was further used to place him on December 6, 2010 in an area of the High Desert proximate to where the bodies of the family were later discovered to have been crudely interred in two shallow graves near a wash not far from a rarely used dirt road used for utility line maintenance.
Following that testimony, Judge Smith ruled on both of the motions for a new trial, dismissing them. By that point, the hour had reached five of the clock, an almost unheard-of extension of the business day at the courthouse, particularly on Friday. With many of the McStays’ extended-family members in the court clamoring for the judge to continue the hearing into the evening and render sentence that night, Judge Smith said he was constrained from imposing on court staff to remain that long after hours, but he did consent to allowing Joseph McStay’s adoptive stepfather, Patrick McStay, the opportunity to make his victim witness statement before he was scheduled to take a return flight to Texas the following day.
What remained as a substantial crowd involving both McStay and Merritt family members, sheriff’s department officers involved in the investigation of the McStay family deaths and a sizable media contingent was again the courtroom Tuesday morning following the Martin Luther King Holiday extended weekend. With the crowd anticipating that the hearing would very rapidly move to the crux of the hearing, they were again met with the delay Maline’s motion to disqualify Judge Smith entailed, which again required that he repair to his chambers to read the entirety of the motion and analyze it from both a factual and legal standpoint. That done, Smith returned to the bench, where he took up Maline’s motion to disqualify the court and prevent it from ruling on the remaining issues.
“The only issue that the court can rule on at this point with regard to the motion to disqualify the court is whether or not the motion is timely filed,” Smith said. “Under CCP [Code of Civil Procedure] Section 170.3 C1 the court does have the authority to strike such a motion if it is not timely filed. If it is timely filed, then the procedure is that the court will file a written statement in opposition or denying the allegation within five days. That then goes to the judicial council, who would then appoint another judge to rule on the motion. So, that would obviously take some time. The only other thing, the only issue this court can rule on now is whether or not the motion to recuse or disqualify this court from the remaining motions is timely filed. In that regard, the section 170.3 C1 and California Supreme Court case of People vs. Scott state that the motion to disqualify a judge must be filed at the earliest practical opportunity once the grounds for the motion are discovered or known by counsel. Here the primary allegation alleged to disqualify the court are the fact that the court allowed counsel to meet with the jurors in the jury room after the jurors had returned the final verdict in the penalty phase and the court was also present for that, and then when the bailiff notified the court that the McStay family wished to come in and thank the jurors the court allowed the McStay family to come in and thank the jurors. Mr. Maline complained about the atmosphere that existed during the time that jurors and the McStay family and the court were present. So, the question is whether the motion at this point is timely. Clearly, it is not timely. That occurred seven months ago. All of that was known to the defense literally from the time it occurred. Although Mr. McGee and Mr. Maline were not present, defense investigators, Alexandra Hailey, and Mr. McGee’s second counsel was also present so they were certainly apprised of whatever occurred at that point in time. Since then, as I said, seven months have transpired, and during that seven-month period Mr. Maline requested additional time to file motions for a new trial. At least one of the motions for a continuance was granted. Subsequent motions were denied. Mr. Maline then filed motions for a new trial. We spent an entire day discussing and ultimately ruling on some of those motions. Then, apparently, Mr. Maline alleges he was unhappy with how the court ruled on the motions and the manner in which the court ruled on the motions. He alleges that as an additional grounds for disqualifying the court. Obviously, counsel’s disagreement with the court’s ruling on the motions and the manner in which the court ruled on the motions is not a ground to disqualify the court. So, those allegations can be stricken as not constituting grounds for disqualification. The fact that seven months had elapsed from the time that the primary allegations counsel now alleges as disqualification had elapsed and that counsel in the interim had requested continuances, actually filed motions for a new trial and participated in a day-long hearing on motions for a new trial clearly indicate that counsel did not file the motion to disqualify the court at the earliest practical opportunity once council was aware of those events. So, the court based upon that strikes the motion to disqualify on the grounds that it is not timely. Suffice it to say that if we were to reach the merits of the issue, the court would file a written statement denying the nature of the allegations and explaining in the court’s view what did in fact and did not occur during the meeting in which the jurors, prosecution attorneys and the McStay family were present. The defense counsel of course was invited to be present for that. I think the record indicates the court’s comments at the time were if the jurors wished to speak with the attorneys, the attorneys would be available shortly and that’s when the attorneys had the opportunity to go back and talk with the jurors. Since the court is striking the motion for disqualification on the grounds of timeliness, this is not the appropriate time or manner to address the issues alleged in the motion, so the court will not do so at this time.”
Smith made note that in conjunction with another of Maline’s motion for a new trial based on the cumulative misconduct of the prosecution team ruing the trial, Maline had provided him with a notebook with six exhibits, including videos of certain elements of the proceedings. Judge Smith said he would not view those exhibits but consented to them being designated as exhibits and becoming part of the record to be considered by the appellate court.
Objections to those alleged instances of misconduct were not brought up in their immediate aftermath during trial. In response to Maline’s assertion in his motion that the defense had not made issue of that alleged misconduct at the time of the trial because Judge Smith had denied earlier motions relating to the defense’s allegations of prosecutorial misconduct and McGee and Maline thus believed the judge would not rule in favor of the defense if it had lodged such complaints during the trial, Judge Smith said was not a justification for filing an untimely motion relating to such matters at this late of a stage.
In response to Maline’s assertion that he had been insensitive to prosecutorial misconduct as evinced in his rejection, last Friday, of the defense’s motion for a new trial based on prosecutorial misconduct, Judge Smith said he had reviewed the transcript of the trial notes with regard to prior defense motions relating to allegations of prosecutorial misconduct. “I am satisfied after reviewing all of those that, number one, there was no prosecutorial misconduct, number two, there was no prejudice in reviewing the totality of all of the alleged instances of misconduct, [and it] did not rise to the level of prejudice to the defendant. As I indicated during the trial and as I indicated on Friday, it is my experience that when counsel conduct themselves inappropriately, that does not aid them or their case but is to their detriment in the jury’s view, and I expressed that to counsel during the course of the trial. In any event, the court finds there was no misconduct. There was no prejudice to the defendant as a result of any of the complained misconduct by counsel, and therefore the motion for a new trial on the grounds of prosecutorial misconduct and the cumulative effect of the totality of the prosecutors’ conduct is also denied.”
With the motions for a new trial denied the court then took up the automatic motion to modify the sentence to life without the possibility of parole.
Maline said his arguments were made without conceding guilt as it was yet the defense’s position Merritt had not committed the crimes, so there was no plea of mitigation to lessen the sentence. He did say, however, “We would still like the court to consider the insufficiency of the evidence because at the end of the day, there is no evidence linking Mr. Merritt to these brutal murders. The fact remains the February 4 circumstance of events  cannot be explained with Mr. Merritt as the perpetrator in any way, shape or form. In whatever mental gymnastics one wants to undergo, it would exclude Mr. Merritt as the perpetrator.”
Maline reminded the court that it was the defense’s contention that Merritt was not at the McStay home in Fallbrook on the evening of February 4, 2010, but even if one accepted the prosecution’s assertion that it was Merritt’s truck driving away from the home at 7:47 p.m. that night, there was yet documentable proof that there had been activity on computers inside the McStay family home involving the family in the 31 minutes after that, which oversets the prosecution’s theory of Merritt’s guilt as it stands. Maline said the prosecution had engaged in a “lot of name calling in the trial,” particularly in seeking to prejudice the jury against his client by drawing attention to his proclivity for gambling  “That dominated and had an effect on an already-receptive jury,” Maline said, “who of course – who would blame them – want to give justice to the [McStay] family, who had waited so long. But if you look at the evidence, there’s nothing there. Whatever the prosecution said about any given fact or any given circumstance, it was taken out of context. This led to the atmosphere in which the jury could find Mr. Merritt guilty, when you talk about greed, when you talk about all of the nonsensical things they did. How do you counteract something when they are just name-calling? You can’t do it. And that’s the atmosphere that permeated the trial.”
Supervising Deputy District Attorney Britt Imes countered Maline.
“The one thing that is clear on the merits, the defense’s position is to impugn not only the credibility of the jury now but also the court, and that is not a basis to reduce the verdict,” Imes said.
Imes then sought to make an issue of Merritt not having     confessed to the crimes or having acknowledged, despite his conviction, that he was the perpetrator.
“I think the court can also take into consideration the defendant’s lack of remorse,” Imes said. “I think that has been abundant and apparent from the day one of this investigation, through his attitude to investigators in interviews, his statements to investigators, his statements to the family through today.”
Imes called the conclusion the jury had come to “a deliberative verdict,” citing in doing so that that the jurors had recommended that the judge mete out life without the possibility of parole for the killing of Joseph McStay  and the death penalty in the deaths of his wife and two children.
Judge Smith said, “The standard that the court is required to utilize in reviewing a verdict of death by a jury in considering the statutory motion to reduce that verdict to life imprisonment without the possibility of parole is that the court must independently examine and weigh the evidence regarding the aggravating and mitigating circumstances and then the judge must make an independent judgment as to whether or not the totality of the weight of that evidence supports the jury’s verdict of death. The court does not render its own or de novo penalty decision. The court has independently examined and weighed the evidence… as it relates to the aggravating and mitigating factors.”
Judge Smith then summarized the evidence relating to factors in aggravation and in mitigation he considered most significant.
Judge Smith addressed Maline’s characterization of the evidence against Merritt as “flat out false or out of context.” The judge said there indeed  was a conflict in the evidence presented by the prosecution and the defense. “The prosecution evidence says one thing” Judge Smith said. “The defense evidence says that evidence is wrong, it is taken out of context, it’s false, here’s why it’s false. That creates a conflict in the evidence. The jurors had the opportunity to see the arguments on both sides to evaluate those conflicts in the evidence, and the jury resolved that conflict against the defense and in favor of the prosecution. In the court’s independent judgment, after weighing all of the evidence, the court’s independent judgment was and is that substantial evidence supports the jury’s verdict in resolving those conflicts in the evidence. With regard to the motion to modify the verdict, the court has independently examined and weighed the evidence of aggravating and mitigating circumstances.”
Judge Smith said that in considering the circumstances of the crime, “The extremely aggravated nature of the crime certainly carries significant weight.”
If Merritt had killed Joseph McStay alone, the judge said the application of penalty would not have been death. “What  makes the circumstances here more aggravated is that the defendant went to the victims’ home where he knew Joseph’s wife and young children were and any confrontation there would result in both Summer and the children being present. The additional killing of not only Summer but two children is extremely aggravating. There really isn’t much that can be more aggravating than the intentional murder of two children and the manner in which that was done.”
Judge Smith said the extremity of the violence added to the aggravating circumstances of the crime. Moreover, Judge Smith said, Merritt inflicted tremendous suffering on the McStay family’s survivors.
Merritt, Judge Smith said “knew he had a brother, knew he had a mother. He knew the loss that would be created for the family.”
There was a further aggravating factor in that, Judge Smith said, the “victims were vulnerable” and they knew and trusted him and had no reason to expect violence on his part.
The judge did cite some factors in mitigation, including that he had not history of violence and that he had been, at least intermittently, a good father, and possessed a “creative streak” and “positive work ethic.”
Judge Smith said Merritt’s close and strong relationship with his daughter “reflects positively on Mr. Merritt and the values she attributed to him.”
Judge Smith said in a circumstantial case there is always some room for lingering doubt.
“The court will acknowledge there is a possibility of lingering doubt and that is a mitigating factor to take into consideration in determining the appropriate penalty,” Judge Smith said. “The court does not consider that a strong mitigating factor or attach significant weight to it.”
Judge Smith rejected Imes’ assertion that Merritt’s failure to admit his guilt or express contrition for the crime of which he stands convicted was a factor in aggravation.
“The prosecution argues lack of remorse is an aggravating factor,” Judge Smith said. “The court does not consider lack of remorse in this case to be an aggravating factor. The defendant’s position throughout the trial is he is not the person who committed the crime. So, a defendant asserting his innocence I don’t think can be considered a factor in aggravation. The court does not consider lack of remorse where the defendant is steadfast in his assertion he is not the responsible party to be a circumstance in aggravation.”
In sizing up the formula he was applying in his evaluation, Judge Smith said, “In order to sustain a verdict of death, the aggravating factors must outweigh the mitigating factors, and the aggravating factors must be so substantial in comparison to the mitigating factors that death rather than life in prison without the possibility of parole is the appropriate sentence. The jury so found that with regard to the murder of Summer, Gianni and Joseph, Jr. that the aggravating factors did outweigh the mitigating factors, and that the aggravating factors were so substantial in comparison to the mitigating factors that death was the appropriate verdict for those three offenses. After independently examining and weighing all of the evidence of all of the aggravating and mitigating circumstances, it is the independent judgment of this court that the totality of the weight of the aggravating evidence overwhelmingly supports the jury’s verdict of death.”
Judge Smith reasoned “the extreme violence and savagery of the killings, particularly of two small children, far outweigh the totality of all of the mitigating evidence. For those reasons, the motion to reduce the jury’s penalty verdict of death as to the murders of Summer, Gianni and Joseph, Jr. to life in prison without the possibility of parole is denied.”
The court heard victim-witness statements. While each of the six spoke, Merritt, who was seated at the defense table facing the front of the courtroom, turned his chair to face, as best as the narrow confines between the defense table and the prosecution table behind it allowed, those speaking.
Tracy Russell, Summer McStay’s sister, in her statement navigated between statements to Merritt directly addressing him and to the court. She said that the “trial has been excruciatingly painful.” She and her family, Russell said are “scarred for life,” and that “for almost ten years our family has already been given a life sentence of death over again.  Never again in our lives will we hear their voices. Never will we see their smiles. Our children won’t grow up together. My sister walked with a purpose and passion. She was brave, smart, funny and, yes, territorial. She is none of the horrible things she was made out to be over all these years. It kills me in my soul we will never have them in our lives again. You took their lives so violently. You sit there with no remorse or accountability. There is no justification or comprehension for what you have done. Your actions have devastated and destroyed my mother. You have sentenced her to a life of grief. You left my beautiful nephew Jonah fatherless. There is a hole in his heart that none of us will ever be able to fill. He still hasn’t admitted what he has done. He hides behind attorneys. Knowing what I do will hurt me for the rest of my life.”
Susan Blake, Joseph McStay’s mother called Merritt a “despicable, evil monster… a lowlife coward and baby killer. You deserve the verdict the jury came to.” She said she was grateful to the prosecution team and the jurors “that worked so hard to put you behind bars.”
Summer McStay’s first husband, Albert Lagara addressed the court, directing many of his comments toward Merritt after thanking the jury and reminiscing about his ex-wife and recollecting what he felt when he first learned of the family’s disappearance and deaths.
Lagara at several junctures taunted Merritt. “Divine intervention is beautiful, Chase,” he said. Lagara alluded to testimony at trial indicating that Summer McStay had taken a dislike to Merritt from soon after she met him.“Her judge of character was spot on,” Lagara said, “as it was back when we were young.” He then repeated, “Her judge of character was spot on when she met you, Chase, Charles. I guess she didn’t like you, right? I don’t believe she was mean-spirited. She had a need to keep people at arm’s length.”
Lagara said, “When I thought of what to say to you, I thought about being vulgar to you, but you would expect that. You would just sit there looking at me like you were watching TV, still disconnected from what you have done. Then I thought, because of my heart, that I would kill you with kindness, and make a statement that I forgive you. But I’m not able to do that. I don’t forgive you. So, instead I want to psychologically mess you up. Human beings compartmentalize trauma, and I want to wake up that suppression in you. Every time you hear a sound in prison, or in a movie, that is similar to the sounds you made that day when you murdered the family, I hope it rings loud in your ears, and that those sounds haunt you, Chase. I want those sounds to trigger a memory to the point that you are unable to suppress it.”
Banging the side of the lectern violently, Lagara said, “Come on, Chase! Aren’t you tired, man? Aren’t you tired? Just stop all the appeals, all the shenanigans. Don’t worry. Your fate will be way less tragic than that of the family you murdered. No one will cause you the physical pain you caused Joseph or Gianni or Joe, Jr. No one is going to beat you or break your jaw the way you beat Summer and broke her jaw, my ex-wife. No one is going to beat you. You will just slip into unconsciousness. Be brave. Ask for forgiveness from the only entity that can give it to you, and that is God, Almighty.”
Michael McStay, Joseph McStay’s brother said, “November 13, 2013 left a mark. That was the day Sergeant [Ryan] Smith and Detective [Joseph] Steers told me they had found the box [i.e., bodies]. The jury has spoken and even though the darkness in this man tried to overcome my family, the light will always overcome the darkness.  My family – my mother – lost a son, a daughter-in-law and two grandsons. Having to watch my mother bury them [is] so unnatural. Not natural causes. There was intent here. It was disturbing, devastating. My nephew had to grow up without a father, though he had one heck of a stepdad. It didn’t just mark me that day. It marked my kids. They were stolen from us. This world was robbed of four beautiful souls. I looked up to my brother. I’ll never get another conversation with him. No more surfing. No more anything. This whole thing is a bad deal. I’m not a gambler, but this is a pretty poor exchange rate. We lost four beautiful souls for one to remain, a man that is heartless, that is the face of evil. He’s unrepentant. He lacks a conscience. He is conscience-deprived. He is unapologetic. He is merciless. He was a lifelong criminal, but I won’t waste any more time on him.”
Pointing to the four members of the jury that were present in the court room, Michael McStay said, “They have spoken,” and then appealed to Judge Smith, “I’m asking you not to reduce the sentence.”
Michael McStay’s wife, Ellen McStay, saying she was speaking as the wife of Michael McStay and as “an unashamed follower of Jesus,”  lamented “what could have been because of the choice you, Chase Merritt, made to brutally murder my husband’s family. We are forced to live in the continuous what-could-have-been state of loss.
There is really no way to explain the impact the horrendous violent crimes the murders of the family has had on our lives and lives of all of our family.”
She lamented “the gruesome and brutal details of the crimes you committed. It is not just a Netflix documentary to us. The details are shocking and nauseating to sit through.”
She said Merritt was a “coward. Being in your presence in this courtroom caused great anxiety for me. I’ve never been exposed to such an evil person in my presence. You brought evil into our world.”
Jonah McStay, Joseph McStay’s son by his previous marriage, told the court that he had “lived in the shadow of losing my father, stepmother [and] two little brothers. Sometimes just seeing another boy with their dad reminds me of the tremendous loss I have endured. I fight each and every day to mend the wounds left by someone who instead of healing, sought to destroy others for their own personal gain.”
For the first time in trial other than in response to questions that had been posed to him at times by the judge with regard to his assent to waivers or other procedural issues, Merritt spoke. Though audio recordings and video recordings of his statements during his interrogations by sheriff’s detectives from both the San Diego County and San Bernardino County sheriffs’ departments had been heard during the trial, his pre-sentencing statement provided his most extensive and direct participation in the proceedings that ended with his conviction and consignment to death. At times, his emotion nearly overcame him, and he was lachrymose during much of his oration, which consisted primarily of his reading from a narrative he had previously prepared, which he twice seemed to briefly depart from. Much of his statement consisted of remarks made directly to Susan Blake, Joseph McStay’s mother, and Michael McStay, Joseph McStay’s brother, both of whom testified at the trial.
“I would like to say I am so very sorry for Joseph’s, Summer’s, and Joseph Jr.’s family, and Gianni’s,” Merritt said. “No mother or dad should have to bear the pain of losing their son or daughter. No brother or sister should be deprived of their lifelong relationship with their sibling. Their family lost so much that is unmanageable. In this setting, in which the loved ones’ feelings in which they finally found justice, I’m conflicted in addressing the issues that I have to here. After hearing your statements and knowing you feel justice was done here, part of me wanted to just stay silent, at least for a while. The thing that is bringing you this solace is ending my life, ending my life for a crime I did not commit. I loved Joseph. He was a big part of my life, and my family’s life. I would never have hurt him in any way. I would never raise my hand to a woman or a child. I did not do this thing. I know you do not believe this, and that’s what kills me. But I believe if you were to look deep into what has happened here, in this courtroom in the last five years, you’d have to recognize that something, something is amiss, something is wrong. This prosecution team without any care whatsoever has used you and others to accomplish their goal. They convinced you I did this thing. I know that, and honestly, if I lost a son, brother or daughter, grandchildren to such a cowardly act and genuinely believed what the detectives and prosecutors were telling me, that we have the man who did it, I would likely do as you have.  But Miss Blake, Michael, the things you told the jury, they were untrue. They were not unconsequential. They helped get me convicted. I hope someday you can ask yourself, someday, the question: ‘Why would the prosecutor need these false statements from you if indeed they had the evidence proving my guilt?’ What you witnessed throughout this trial was fabricated. And, as I said, I can’t feel angry for your participation in my conviction. If I were in your shoes, I might have done the same. I do, however, have the utmost disdain for the people who put us all in this courtroom. This prosecution team without concern of the consequences systematically manipulated the evidence in this case to unrecognizable and malicious assault I never would have thought possible, and in doing so knew the person or people responsible for this heinous act are still free, all to simply get a win. Their theories throughout trial have been a target that moves opportunistically when confronted by contrary evidence, like when Mr. Imes [lead prosecutor Supervising Deputy District Attorney Britt Imes] stated, ‘I believe the family was murdered in the house and to not believe that you’d have to ignore the evidence.’ And the next day, the following day, Miss Rodriguez [Deputy District Attorney Melissa Rodriguez] stated, ‘We never said they were killed in that house.’ These prosecutors resorted to inflammatory rhetoric, brought out prejudicial and inadmissible statements in the guise of questions, suborned perjury, misled witnesses, including you, Michael [McStay], and you, Susan [Blake]. They did these things to keep consistently before the jury the assumption of damaging facts, which they knew could not be proven, which they knew were false. Then, of course, there’s the court, who let this misconduct permeate the trial. A judge who was so set on ending the trial, abdicated his role by telling counsel on both side he could not stop the trial and have hearings on misconduct because, ‘I’m going to… I’m going to let the next court deal with it.’ What is most troubling, however, is that after my penalty phase verdict was read, the judge still had to decide my fate as to whether I live or die, entered the jury’s chambers with Joseph and Summer’s family and had intimate contact with them. This, prior to deciding my fate in the motion for a new trial, as the 13th juror. Indeed the jury room was full of high-fives, hugs and congratulatory remarks. When I was told of this behavior, which included the court as well as prosecutors, it reminded me of a story I once read of a photographer who photographed soldiers flashing thumbs up behind a pile of their victims. As he looked on, he said, it was so jarring that for a few seconds he took it for a montage. But yet, there was something familiar about that scene. Then he remembered the last time he had seen a scene like that was in photographs of lynchings. I’m sure this is not the first time anyone or all of these prosecutors egregiously committed fraud upon this and other courts. They are professional liars and likely have been for the better part of their disreputable careers. Your Honor, there are no second acts. Do what is right. Give me the hearing I deserve. I can show you where this trial has failed. Allow me to show the family just what these prosecutors have done. What’s happened here is wrong. It’s taking me from my family, a family that does not deserve this. I may deserve a lot of things. I don’t deserve this. I did not do this. And as God is my witness, I will be back here and prove to everyone that is true.”
Judge Smith said that independently considering and weighing the evidence he had come to the same conclusion as the jury. Signaling that he was ready to pronounce sentence, Judge Smith asked Maline if there was any reason why he should not proceed.
Maline said, “It is our position that there is still legal cause as to why judgment should not be pronounced. Even though the court denied the motion, we still feel that this court should not be sentencing because there is a bias that was pointed out in our moving papers.”
Judge Smith disagreed, saying there was “no legal cause why judgment should not be pronounced.”
Judge Smith then proceeded.
“For the offense of the first degree murder of Joseph McStay, pursuant to the jury’s penalty verdict of life in prison without the possibility of parole, the court will sentence Mr. Merritt to the sentence of life in prison without the possibility of parole for the murder of Joseph McStay,” Judge Smith pronounced, continuing, “The jury having found Mr. Merritt guilty of the first degree murder of Summer McStay and the first degree murder of Gianni McStay and the first degree murder of Joseph McStay, Jr., and the jury having found the special circumstances of multiple murder to be true as to each of the first degree murders as to Summer, Gianni and Joseph Jr., and the jury determining the appropriate penalty verdict to be death for each of the murders of Summer, Gianni and Joseph, Jr., and before having denied the motion to modify the verdict from death to life imprisonment without the possibility of parole, it is therefore the judgment and sentence of this court that for the first degree murder of Summer McStay and for the first degree murder of Gianni McStay and for the first degree murder of Joseph McStay, Jr. that the defendant, Charles Merritt, be sentenced to death, that the penalty be carried out in San Quentin State Prison in the manner then prescribed by law, and at a time to be fixed by this court in a subsequent order of execution after the defendant’s appeals are exhausted, all in accordance with Penal Code Section 3605.”
-Mark Gutglueck

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