Judge’s Hearing & Denial Of Retrial Motions Delays Merritt’s Sentencing

By Mark Gutglueck
The much-anticipated sentencing of Charles “Chase” Merritt that was to take place today was delayed until next Tuesday, as the sole remaining member of his legal team put on a tour de force in the form of a set of legal motions intended to rescue his client from eventual execution which was carried out under the most exacting of circumstances, not the least of which was Merritt’s effort in the midst of the proceedings to have him terminated as his counsel.
Ultimately, the effort by defense attorney Raj Maline to have the judge who heard the case, Michael A. Smith, make a determination that Merritt’s nearly six-month-long trial last year was marred by prosecutorial misconduct and the ineffective assistance of counsel provided to Merritt by Maline’s former law partner failed, and Judge Smith refused to grant Maline’s motion that Merritt be granted a new trial.
The day had dawned with the victims’ survivors, the defendant’s family members, prosecutors, Merritt himself and his defense team and the rest of the world anxiously awaiting word on whether Judge Smith would confirm the death penalty recommended by the jury or impose instead a sentence of life without the possibility of parole on the 62-year-old seven months after he was convicted of the 2010 murders of all four members of the McStay family. That anxiety was ultimately extended to next week as the hearings on Maline’s two defense motions and then the mind-bending request by Merritt to fire the individual who represents the last impediment between him and the death chamber ate up most of the day.
In the course of the proceedings, Judge Smith made a finding that the jury had a sufficient factual foundation based upon the evidence presented at trial to back up the guilty verdict it had rendered in the case. Even more pointedly, Judge Smith stated that he, in the role of the “13th juror” necessitated by his acting as the arbiter of the motion for a new trial, was himself convinced beyond a reasonable doubt that Merritt was guilty of the murders.
The proceedings kept the rapt spectators packed into the San Bernardino Justice Center’s largest courtroom in place until after the normal 5 o’clock closing of the courthouse. At that point Judge Smith, against the wishes of multiple attendees who in a departure from the decorum that normally attends the courtroom atmosphere had made open and shouted declarations that they were prepared to remain within the premises at least until 10 p.m so that the sentencing could be carried out, adjourned the hearing until Tuesday morning, January 21 at 8:30 a.m. While the official fate of Merritt will not be known until what is anticipated to be a few hours after that, there were indications that suggest Judge Smith is leaning toward confirming the jury’s finding that the imposition of the death penalty is appropriate.
On June 10, 2019, the jury hearing the allegations of murder against Merritt found him guilty on four counts of first degree murder in the February 2010 killings of Joseph McStay, his wife, Summer, and their two children, four-year-old Gianni and three-year-old Joseph Jr. The jury made an additional finding of special circumstances, specifically the commission of multiple homicides, which opened the way for the potential application of the death penalty against Merritt.
The prosecution team, consisting of lead prosecutor Supervising Deputy District Attorney Britt Imes as well as Supervising Deputy District Attorney Sean Daugherty and Deputy District Attorney Melissa Rodriquez, alleged that Joseph McStay, displeased with the quality of Merritt’s work and convinced that Merritt was embezzling from the company McStay owned, Earth Inspired Products, in early 2010 was purposed to terminate Merritt as the primary manufacturer of Earth Inspired Products’ line of goods, large scale water features, primarily fountains and decorative artificial waterfalls. Prosecutors convinced the jury that Merritt, motivated by greed and anger over the imminent loss of gainful employment his firing would entail, after a meeting with Joseph McStay on the afternoon of February 4, 2010 in which McStay confronted him about the embezzlements, that evening drove to the McStay family home in Fallbrook where he bludgeoned them with a three-pound sledge hammer. The prosecution then asserted and the jury accepted that Merritt then took the family’s corpses to the desert area between Victorville and Oro Grande where in a wash off a rarely-used dirt road used for utility facility maintenance he interred them in two shallow graves on February 6, 2010, and two days thereafter, on February 8, 2010 ditched the McStay family’s vehicle, a 1996 Isuzu Trooper, in a shopping mall parking lot a half mile away from the Mexican border in San Ysidro, action by which he intended to mislead investigators into thinking the family had fled south of the border.
Merritt was arrested in November 2014, one year after the family’s remains had been found in and strewn about the desert gravesite after animals had disinterred the body of the youngest child, Joseph McStay, Jr., and the three-year-old’s skull cap had been found by a motorcyclist who came across it while riding in the desert on Memorial Day 2013.
Merritt had remained in custody for four years, during which time he had twice fired his court-appointed attorneys while endeavoring to represent himself. At last he accepted the services of Raj Maline, whose reputation as a dedicated and passionate defense attorney precedes him, and those of James McGee, a longtime prosecutor, who only relatively shortly before had gone into the private practice of criminal law, as well as McGee’s partner Jacob Guerard. After jury selection in late 2018, Merritt’s trial commenced in January 2019.
During the prosecution’s phase of the trial, Imes, Daugherty and Rodriguez, utilizing information compiled by investigators with both the San Diego County and San Bernardino County sheriffs’ departments, connected Merritt to events and circumstances relating to what they characterized as troubled business dealings with Joseph McStay and the events seemingly relating to the family’s demise.
Through a series of speculative assertions that resonated with the jury, the prosecution team assembled a circumstantial case against Merritt. That case consisted of cell phone records which showed that on February 4 between 5:48 p.m. and 9:32 p.m., which corresponded to the timeframe during which the prosecution claims the murders took place, Merritt’s cell phone had been turned off, masking his whereabouts. The prosecution used those cell phone records to further demonstrate that on February 6, 2010, Merritt or whoever was in possession of his phone was somewhere in the 240-square mile environs of the Victor Valley, an indication he was at the grave site that day, disposing of the bodies. Perhaps the strongest evidence against Merritt put on by the prosecution consisted of a series of checks totaling more than $20,000 on the account for Joseph McStay’s business, Earth Inspired Products, that Merritt had apparently written to himself in the days just prior to, the day of and over the four days following the family’s disappearance. The prosecution maintained that Merritt had first stolen from Joseph McStay out of financial desperation brought on in part because of his gambling addiction, and that he then murdered McStay and his family after his thefts were discovered to cover up his larceny and prevent Joseph McStay from reporting it to law enforcement authorities. Those checks embodied certain specific anomalies, such as an atypical lack of capitalization in the names of the payees to whom the checks were made out or in the checks’ memo lines, as well as all of those checks drafted after the family’s disappearance being backdated to February 4, 2010. Based upon those differences in the way Joseph McStay drafted the checks written against the Earth Inspired Account, the prosecution asserted that Merritt had been engaged in embezzlement from the company. When Joseph became aware that Merritt was pilfering from the company, the prosecution alleged, it precipitated the February 4 confrontation between McStay and Merritt that occurred at a Chick-fil-A fast food restaurant in Rancho Cucamonga not too distant from the apartment complex Merritt lived in with his family.
The prosecution maintained that Merritt had driven from his home in Rancho Cucamonga to Fallbrook the night of February 4 to carry out the murders, relying upon gaps in Merritt’s cellphone activity that night and brief and grainy footage from the front yard security video camera of one of the McStay family’s neighbors on Avocado Vista Lane, Jennifer Mitchley, showing the lower portion of a vehicle, at 7:47 pm, pulling out of the McStay family driveway, to support that claim. The prosecution adamantly claimed the vehicle was Merritt’s work truck, while the prosecution’s own original expert witness on the matter, Dr. Leonid Rudin, considered to be one of the world’s leading photogrammetrists, and the expert for the defense, Gregg Stuchman, said there were features of both vehicles that conclusively demonstrated the vehicles could not have been one and the same. The prosecution then jettisoned Rudin as its expert witness and went across the international border to Canada to bring in a second measurement-and-photographic-analysis-and-comparison expert, University of Toronto professor Eugene Liscio, to state that he could not rule out the possibility that it was Merritt’s truck depicted on the security video.
The defense subjected virtually every element of the prosecution’s case to some level of contradiction, vigorously cross examining the prosecution’s witnesses and then, after the prosecution concluded the presentation of its case, putting on a defense that lasted 10 weeks, one week longer than the prosecution’s presentation.
After the jury returned with its guilty verdict and a finding of special circumstances on June 10, there followed penalty phase hearings, after which further jury deliberations concluded on June 24 with the panel recommending that for killing Joseph McStay, Sr., Merritt should serve out the rest of his life in prison and that the penalty to be exacted upon him for his murders of Summer McStay, four-year-old Gianni McStay and three-year old Joseph Jr., should be death by lethal injection in each case.
Merritt was scheduled to be sentenced by Judge Michael A. Smith, who had presided over the trial, in September. Under the law, Smith’s only sentencing options are to confirm the jury’s recommendation or to substitute, in the case of the murders of Summer, Gianni and Joseph, Jr., life in prison with no possibility of parole for the jury’s death penalty recommendation. By September, even though Maline, McGee and Guerard were assiduously maintaining the innocence of their client, the relationship between Merritt and McGee had soured, largely because of disagreements Merritt had with McGee over how the defense had chosen to contest the allegations of the prosecution relating to the cell phone data and how it had allegedly placed him proximate to the gravesite on February 6 as well as putting him in transit from the McStay home to his own home in Rancho Cucamonga on the evening of February 4 and in the late morning of February 8, times when the prosecution alleged Merritt was murdering the family and returning from having abandoned the Isuzu Trooper near the U.S./Mexico border. McGee and his partner Guerard consequently sought to be relieved as Merritt’s counsel, which entailed a delay in sentencing while Judge Smith considered the matter. Ultimately, Judge Smith in November allowed McGee and Guerard to substitute out. Thus, representing Merritt at his sentencing today fell exclusively to Maline, who first sought a further delay to allow him to prepare motions or writs with regard to the pending sentencing or in request of a vacating of the jury verdict and a retrial. After Judge Smith denied the extension request, Maline prepared one motion to be considered by Judge Smith today that was filed in a timely manner and then a second motion that was not lodged with the court until this morning.
One of those motions was a petition for a new trial. Another was one seeking a ruling from Judge Smith that Merritt’s defense had been hampered by ineffectiveness of counsel on McGee’s part, particularly as related to the inadequate controversion of the prosecution’s allegations relating to Merritt’s cell phone records which were used against Merritt at his trial.
A delay in the day’s proceedings, which were scheduled to being at 8:30 a.m., ensued while Judge Smith, who agreed to consider Maline’s motion filed that morning despite it not being filed in a timely manner, remained in his chambers to read the 91-page brief that accompanied it.
Once Judge Smith took his place on the bench, he permitted Maline to make an oral presentation of the material contained in his motions and their accompanying briefs. Judge Smith did not, however, allow Maline to put the defense’s cell phone technology expert, Vlad Jovanovic, on the witness stand to testify. Nor did Judge Smith allow Jovanovic to make a PowerPoint presentation he had prepared relating to the cell phone records, cell tower placement and what he considered to be the prosecution’s misinterpretation of the evidence which was presented to convince the jury of Merritt’s presence at several places critical to the prosecution’s case. Though Jovanovic was on the defense’s witness list, during the trial McGee had elected not to call Jovanovic as a witness because he believed he had successfully refuted the prosecution’s assertions relating to Merritt’s location at critical times within the prosecution’s narrative through his cross examination of the prosecution’s cell phone data expert, FBI Agent Kevin Boles. Judge Smith said he would not indulge Maline by allowing him to question Jovanovic at this point as part of today’s hearings, but would allow Maline to submit Jovanovic’s PowerPoint presentation and other documentation he had provided relating to his analysis of the cell phone data into the record of the proceedings, which is likely to prove of significance during the inevitable appeal of the conviction that is to follow.
In the presentation Judge Smith allowed him to undertake, Maline on behalf of Merritt asserted that the cell phone data did not place his client near the gravesite on February 6, 2010 as the prosecution had alleged. The most compelling element of the prosecution’s case, indeed the only evidence tying Merritt to the murders of the family, Maline asserted, was what amounted to a falsified or misrepresented interpretation of Merritt’s cell phone pinging off the Quartzite Mountain cell tower, which is located 1.92 miles west from the gravesite. “That was pretty powerful evidence,” Maline said in sizing up the degree to which the assertion that the cell phone data placing Merritt at the gravesite on February 6 furthered the prosecution’s case. But that “powerful evidence,” Maline said, was a chimera that more exacting scientific analysis of the sort that Jovanovic had carried out would reveal as false and inaccurate. In actuality, Maline said, a determination of the direction of communication between the tower and Merritt’s cell phone placed Merritt in a sector that was north or northeast of the tower, which corresponded to the residence of Merritt’s sister, Juanita, who lived just off the National Trails Highway near Oro Grande, rather than placing him at the gravesite, which was east of the cell tower. During his interrogations by sheriff’s department detectives in 2014, Merritt had insisted he had either not been in the High Desert on February 6, 2010 or had no recollection of being there, and that if he was in the High Desert on that day or anytime in the 2009 and 2010 time period, then it was to visit his brother who lived in Hesperia or his sister who lived in Oro Grande. A more accurate interpretation of the cell phone data and Merritt’s consistent insistence that if he was in the area north of Victorville it had been to see and take care of his sister, who was infirm at that time, significantly undercuts the prosecution’s case, Maline told Judge Smith.
Maline said the prosecution had misled the jury as to the meaning of the evidence by ignoring that the calls made from Merritt’s cell phone that day had initially locked onto the Quartzite Mountain cellular tower, which is located on prominent high ground at an elevation of 4,522 feet, but that the calls were then transferred over to cell towers in the Victor Valley or High Desert area other than the one on Quartzite Mountain before they concluded. The direct line-of-sight the Quartzite Mountain tower has to virtually every spot within its 240-square mile coverage area, Maline suggested, explains why Merritt’s phone initially locked onto it. Moreover, Maline asserted, Agent Boles, as a member of the FBI, had access to a national cell tower data base that he had not disclosed in his testimony or the documentation he prepared to augment his testimony, and the prosecution withheld that data from the defense, which constituted prosecutorial misconduct in that exculpatory evidence had not been provided to Maline, McGee and Guerard at the time of the trial. Neither was it disclosed to the defense that the cell towers had six rather than three antenna, which, Maline suggested, reduced their sectors of coverage by half, and that this supported the proposition, given the antenna that Merritt’s cell phone had linked up with, that he was not east of the tower at or proximate to the gravesite on February 6, 2010, based upon the available cell phone data as the prosecution had implied.
Maline further maintained that there were malfunctions of the cell phone and cell tower equipment and errors in the recording of cellular phone data that lent themselves to further misinterpretation that were unjustly used to convict his client. The prosecution’s assertion that Merritt’s cellphone making contact with the Quartzite Mountain cell tower was something the jurors “could sink their teeth into” to assume his client was at the grave site and assign guilt to him, Maline said, but a more logical and accurate interpretation of that evidence was that Merritt was “northbound on the 15 Freeway,” which was a route to his sister’s home, the lawyer said.
“The jury never had a chance to hear that there is good explanation to Mr. Merritt hitting those towers, which was consistent with what Mr. Merritt was saying all along,” Maline said, namely that he was visiting his sister at the time.
Testimony presented by FBI Agent Kevin Boles relating to a connection between Merritt’s cell phone and a tower along the I-15 Freeway between 1 p.m and 2 p.m. on February 8, 2010 was used by the prosecution to suggest that earlier that day Merritt had been in San Ysidro where he left the McStay family’s Isuzu Trooper near the international border, Maline said. Boles’ testimony in that regard also lent itself to the prosecution’s narrative which held that after abandoning the Isuzu Trooper Merritt had returned northward to Rancho Cucamonga eventually by means of the 215 Freeway, possibly stopping at the McStay home in Fallbrook in northern San Diego County to clean up or eliminate evidence of the murders that had taken place there nearly two days before. What was left out of Boles’ testimony and an exhibit he had prepared for that testimony, Maline said, was that just a few minutes before the connection between Merritt’s cell phone and the tower along the I-15 had registered, Merritt’s cell phone had connected with cell towers along the 91 Freeway. According to Maline, that taken together with the testimony of another prosecution witness who placed Merritt mid-to-late morning of February 8 at the Metro Sheet Metal foundry in Azusa where the water features manufactured for Earth Inspired Products were fabricated puts Merritt in the environs of the greater Los Angeles area that day, what would be at that time of the day at least a two-hour drive from south San Diego County. This entirely obliterates the prosecution theory that it was Merritt who drove the McStay family vehicle to San Ysidro, Maline said.
Maline propounded that “Not one thing they [the prosecution] argued was correct.” Maline said, “Certain critical evidence was misrepresented by the prosecution” and he asserted that the prosecutors on the case “outright lied. There’s no evidence linking Mr. Merritt to these murders. None. Most of the [assertions] the People put forth in this case are not true. There is nothing that we cannot face and give the court the right explanation for.”
At times, Judge Smith appeared to be growing impatient with Maline, and he was resistant to Maline’s attempt to enlarge the scope of the hearing to make an exhaustive review of the evidence presented during trial.
“We could spend days in arguing all the issues,” Judge Smith said with regard to ground Maline was seeking to cover, and he upbraided Maline for having filed the motion “alleging what you believe are the insufficiencies of the evidence 15 minutes before the hearing today.“ Judge Smith said he would conduct the hearing in a way that would focus on the most salient points Maline was seeking to reference in the motion, “even though it was not timely filed.” Maline apologized for his tardiness but pointed out that his motion for a time extension had been denied. Judge Smith observed “most of the issues were raised in previous arguments and in previous motions.”
Maline retorted that “There is no evidence linking Mr. Merritt to the crime” and he charged that the prosecution “manipulated the evidence.” Maline suggested that the judge may not have known about or recognized the manipulation, asserting that he, McGee and Guerard “didn’t know that at the time they were making it because it was too much material.” The prosecution had foisted on the jury, Maline said “things that are not accurate. The way they argued it had a big impact. They [the prosecution] aren’t allowed [to inculcate in the jury] false things.”
Judge Smith countered that with “You argued all of that in your closing [arguments] in the trial.”
Maline countered that what the prosecution had engaged in was “a pattern” of “prosecutorial misconduct,” which was not the same argument he made at the time of final arguments at the closing of the trial, in that what he was attempting to bring up today consisted of information that has been provided to him or which the defense discovered after the trial had concluded. “You don’t have all that information,” Maline said. “That doesn’t mean it didn’t happen. I think we have a right to [bring the information relating to information hidden by the prosecution during the trial discovered since the trial’s conclusion], if they lied to you.” Maline said the problem was that Judge Smith would only use the incomplete information available through the trial “as part of your analysis.” He said it was crucial that Judge Smith see for himself and understand that “prosecutorial misconduct” had taken place. “How do you know it rises to that level if I cannot point that out?” Maline asked.
Judge Smith said that Maline “had seven months since the verdict,” to lay out the arguments he was making that morning and that the seven months now past was “plenty of time for you to present it in a timely manner.” He told Maline that for what he was attempting to do “a better vehicle would have been a writ of habeas corpus.”
Judge Smith asked Maline how much time he would need to make the case he was asserting existed and Maline replied he wanted to “point out the pattern [of prosecutorial misconduct] for as long as you’ll give me.”
Remarking that the noon hour had been eclipsed, Smith adjourned for lunch.
Upon the resumption of the proceedings after an abbreviated lunch break, Maline announced that Merritt wanted to fire him as his attorney. There were audible gasps from around the courtroom, which included more than 30 Merritt and McStay family members and their supporters as well as four of the jurors who had rendered the verdict in the trial. At that point, Merritt and Maline accompanied Judge Smith into his chambers alone other than a sheriff’s department bailiff who escorted the defendant. Roughly a half hour later, they emerged, at which point Judge Smith announced that he was not granting Merritt’s motion to relieve Maline as his defense counsel.
The hearing resumed with Maline carrying on in his efforts on behalf of his client as if no challenge to his representation or status as Merritt’s attorney had occurred.
There was a degree of irony to this, as the next issue dealt with in the proceedings was Maline calling McGee, with whom he had arduously labored in representing Merritt in an exhaustive effort to prepare for litigation and during a marathon trial that included jury selection in 2018 and a presentation of evidence that spanned from early January until June, to the stand in order to elicit testimony from him that would establish McGee had rendered ineffective assistance of counsel during the trial.
In his questioning of McGee, with whom he was once in a partnership, Maline angled his questions to elicit from McGee why he had not more aggressively challenged FBI Agent Boles, and then had not put the expert witness they had consulted with, Vlad Jovanovic, on the stand to counteract what Maline maintained were misrepresentations of fact and interpretation propounded by the prosecution.
Maline suggested that McGee after wringing from Boles during cross examination an acknowledgment of the FBI agent’s limited technical expertise with regard to cellular systems, failed to follow that up with more exacting questions that would have illustrated to the jury the unreliability of Boles’ testimony during his direct examination by the prosecution which had proven so damaging to their client. McGee had likewise failed to drive home to the jurors the errors contained in AT&T cellphone and cell tower records by pointedly questioning Boles on that issue as well, Maline sought to illustrate.
Maline asserted that Boles essentially had inadequate knowledge and expertise to make adequate location determinations extrapolated from cell phone data, and McGee did not dispute the assertion. Maline then asked McGee why he had not renewed a motion that was previously denied by Judge Smith to exclude testimony and evidence provided by Boles with regard to Merritt’s location based upon cell phone data after McGee had established that Boles lacked that expertise.
“I did not consider renewing the motion after the fact,” McGee said. “One, I did not think it would be successful and two, if it was successful, the jury still heard it anyway. So, unringing that bell is really hard.”
Maline asked, “Did you think that circumstance in and of itself would be a strategic reason to then bring up all the anomalies in the state’s case in the phone records?”
“Well, after Boles testified, we did talk to Jovanovic about his testimony and whether or not he should [testify],” McGee responded. “We both agreed it would be probably be more counterproductive for him to testify. So, both he and I decided it would be better if he stayed off the stand. The main reason is what we were trying to establish we achieved better than we ever hoped with Boles. So, any testimony from Mr. Jovanovic about some issues, it would be hampering the presentation as a whole.”
The prosecution told Judge Smith he should dispose of Maline’s motions and get on with condemning Merritt to death.
“We could sit here today and argue until we’re blue in the face over the interpretation of every piece of evidence in this case,” Supervising Deputy District Attorney Britt Imes said. “As the court indicated, we could be here for days hearing testimony and rehashing exhibits. A reinterpretation of the evidence is not new evidence, and in this case that reinterpretation of the evidence does not undermine the evidence that the jury heard over the course of six months in order to render their verdict. There are many misstatements as to the accuracy of the evidence that was received. However, the record speaks for itself. The jury was presented with a full and complete picture of the cell phone evidence, and I cite for the record that the court already knows on both February 25 and February 26 of 2019 Mr. McGee spent almost his entire cross examination talking about the efficacy of those records, the importance of the findings from them, including the beginning cell tower and the ending cell tower.”
Imes said Judge Smith should reject any suggestion that he and his colleagues carried on inappropriately during the trial.
“Once again the People are assailed with baseless attacks of misconduct,” Imes said. “When they were raised, this court addressed them. I think the court is well aware of the progress of this trial and those incidents. The court did its best to address and ameliorate those instances. We do not have affidavits from any jurors that in fact their deliberations or verdicts were affected at all by the behavior of counsel from either side. There is no evidence it had any effect whatsoever before this court.”
Judge Smith moved the proceedings on to his rulings with regard to Maline’s motions. In doing so, Judge Smith did a walk-through of the case, giving an encapsulation of what had been presented to the jury over the January to June timeframe upon which it had based its verdict and sentencing recommendations. Thus, Judge Smith provided his reading of the evidence, revealing that in the predominant number of instances, he personally found the prosecution’s theories and presentation of evidence to be more convincing and compelling than those of the defense.
In one significantly notable respect, Judge Smith’s reading of the evidence clashed head-on with the theory propounded by the prosecution, that being the presentation of evidence and testimony relating to the prosecution’s attempt to establish Merritt as being at the McStay residence on the evening of February 4, in particular the prosecution’s assertion that the Mitchley video captured moving images of Merritt’s truck leaving the McStay residence’s driveway at 7:47 p.m. In an interpretation 180 degrees contrary to the prosecution’s assertion that the video proves that Merritt was both at the home and that he perpetrated the murders there, Judge Smith reached the opposite conclusion. If the video indeed shows Merritt leaving the home at 7:47 p.m. when other evidence shows that there was ongoing activity involving the family during the next 41 minutes inside the house, Judge Smith said, that establishes Merritt’s innocence. Judge Smith did not dwell on this interpretation at length, and he did not deal with Merritt’s repeated insistence to investigators that he had not been at the McStay home that evening.
On another relatively significant point, that relating to whether the murders of the family occurred inside the McStay residence, the Judge dissented from the prosecution’s version of events. He also indicated his belief that the defense had made some headway in establishing that the alternative perpetrator of the murders they identified, another of Joseph McStay’s business associates named Dan Kavanaugh, had a motive to kill Joseph McStay in the same way that the prosecution alleged Merritt had such a motive. Kavanaugh, however, the judge maintained, did not have the means or opportunity to carry out the slaughter of the family as he believed the prosecution had established in the case of Merritt. Motive must be married up with means and opportunity to constitute a provable case of actual homicide, the judge said.
In nearly all other respects, Judge Smith said the prosecution’s case was compelling and a reasonable interpretation of the known facts relating to the deaths of the McStays as established at trial.
In the preamble to his rulings, Judge Smith said he relied on the two California Supreme Court cases of People vs. Pope and People vs. Fosselman, as well as the U.S. Supreme Court ruling on Strickland vs. Washington for guidance.
“The standard that needs to be met to establish a new trial on the basis of ineffectiveness of counsel is the defense has the burden to establish that the attorney failed to perform with reasonable competence and performed at a level below an objective standard of reasonableness under prevailing professional standards, and that resulted in prejudice to the defendant, in that it is reasonably probable a result more favorable to the defendant would have occurred absent the deficiencies of counsel,” Judge Smith said. “All those cases [Pope, Fosselman and Strickland] further indicate that an informed tactical decision by counsel does not constitute ineffective assistance of counsel even if other attorneys may disagree with the tactical decision.”
Judge Smith said that McGee testified “he not only reviewed all the information from their expert but he was in constant consultation with his expert in preparing for the cross examination of Mr. Boles, both before the cross examination and during the course of the cross examination. After the testimony of Mr. Boles was concluded, he had discussions with the expert as to whether or not to call that expert as a witness, and he indicated that both he and the expert agreed that the expert’s testimony at that point would be ‘counterproductive.’ And the reason it would be counterproductive was that through Mr. McGee’s consultation with the defense expert, they were able to achieve far more in the cross examination of Mr. Boles than expected or, frankly, that they ever hoped to achieve. So, it’s clear that, number one, Mr. McGee was certainly aware of the information. If he testified and said, ‘You know what? I didn’t know about all of this stuff,’ that would be different. If he said, ‘Yeah, I knew about it, but I didn’t really understand it. I ignored it,’ that would be different. He reviewed it. He clearly understood it. He utilized it, and then further had discussions about whether or not the expert should be called. He and the expert agreed it would be counterproductive to do so. That is not only an informed tactical decision, but it is a decision made in the best interest of his client. I understand that Mr. Merritt may disagree with that informed decision and the experience of Mr. McGee and the expert. That, of course, is not the standard. Mr. McGee did address the issue of the terminating points of the phone calls as well as the beginning points with Mr. Boles on cross examination.”
Judge Smith continued, “Mr. Maline argued that Mr. Boles utilized the additional phone company records that law enforcement is able to access to make all of his maps, and the defense didn’t have that. That also is not true. Mr. Boles testified that he utilized the call detail records of Mr. Merritt from AT&T, which both sides did have, to make those maps. He consulted the data base he was able to access simply to see if those were correlated with each other, or if it was demonstrating any grave problem, and he indicated they did not. Mr. McGee also cross examined Mr. Boles about what it was in those additional records that he accessed. Agent Boles indicated that it was still three sectors or antennas, they were still 120 degrees, but there were two frequencies for each of the sectors, which meant there were really six sections, but they were still in 120 degree quadrants. Most importantly, Agent Boles testified that did not change or affect the azimuth that was reported either as the originating or terminating cell tower or cell point.”
Judge Smith said, “So, with regard to the issue of ineffectiveness of counsel, it is abundantly clear that Mr. McGee had a commanding knowledge of the cell tower technical data and was able to utilize that to bring out various factors [and] the phone may not have been where the prosecution was claiming. Mr. Boles never testified that Mr. Merritt was right at the gravesite. The effect of all of that testimony was never to say, ‘It proves the defendant was right at the gravesite,’ but only to show that on February 6, a day-and-a-half after the family disappeared from Fallbrook, the defendant was in the general area where the bodies were buried. On February 6, Mr. Merritt was in that general location and he denied being in the upper desert. The investigators when they interviewed him asked him if he had been in the upper desert at that time, and he said, ‘No.’ Then they said, ‘Well, if you had been in the upper desert at that time, where might you have gone?’ And he said, ‘Well, if I were in the upper desert, I either would have been at my sister’s or at my brother’s.’ But he was clear, all the way through, that no, he wasn’t there. When his sister Juanita was interviewed in 2014 by investigators, she was asked about whether or not Mr. Merritt had visited her there. In 2014 she’s not going to specifically remember the date of February 6, 2010, more than four years earlier, but generally asked, ‘Did he come up and visit you there?’ her answer was, ‘No,’ that he hadn’t been there for more than five years, that anytime she wanted to see him, she would have to come down to Rancho [Cucamonga] to see him, that he did not visit her in the Oro Grande area.”
Judge Smith pronounced, “The court finds, number one, there was not ineffective assistance of counsel. To the contrary, Mr. McGee’s representation on that issue, on all of the issues, was at the higher end of representation. He demonstrated a high level of knowledge and command of the subject matter, and he was very forceful in his presentation of the evidence, arguing forcefully that the evidence he was bringing forward demonstrated that the position of the prosecution was inaccurate or wrong. Ultimately, of course, the jury reviewed that, along with all of the other evidence, and ultimately decided that evidence did prove guilt beyond a reasonable doubt. The court finds that the representation was not ineffective. The court also finds that there were were additional records that were accessed by the prosecution, by Mr. Boles. That the defense did not have access to and that was the basis for all of the maps, as I indicated, that was not true. The defense ultimately was given access to the information for the critical date of February 6. They had the opportunity to discuss that with their expert and did, in fact, utilize that information in the cross examination of the expert. So the court finds no discovery violation and no due process violation.”
Judge Smith said, “There are some additional things that by themselves would be inconsequential but when considered with the other evidence tends to be part of the totality of circumstances that does indicate guilt. The defense did present a very vigorous defense and did challenge all of the issues that I just discussed.”
The Judge continued, “The second prong of the defense evidence was to attempt to show that Mr. [Dan] Kavanaugh was at least [in the] same position and had the same motivations that the prosecution alleged that Mr. Merritt had. Mr. Kavanaugh had set up the web page for the business. He was doing web page work and maybe getting a percentage of the profits, and Joseph was also phasing out Mr. Kavanaugh, just as he was phasing out or intended to phase out Mr. Merritt, and after the disappearance of the McStays, Mr. Kavanaugh benefited financially from some of the subsequent work that was done. And significantly, ultimately it was Mr. Kavanaugh who sold the business and retained the profits, the proceeds from the sale of the business. So, a compelling case was made that Mr. Kavanaugh had at least the same motivations, was at least in the same position as Mr. Merritt. However, there was no credible evidence connecting Mr. Kavanaugh to the commission of the crimes. There is no credible evidence connecting Mr. Kavanaugh to the McStay residence on February 4 or 5. There was no credible evidence connecting Mr. Kavanaugh to the gravesite. There is no credible evidence connecting Mr. Kavanaugh to the Trooper at the border. And there was additional evidence that indicated that in fact Mr. Kavanaugh was in Hawaii at the time of the homicides. So the evidence did not indicate or did not suggest that Mr. Kavanaugh was likely the killer, and did not, in the court’s view, raise a reasonable doubt as to whether it was him or Mr. Merritt who was the killer. That evidence still served an important point in the defense, which was a valid point, because that evidence demonstrated the presence of motive alone is not sufficient to prove guilt. The evidence did show that Mr. Kavanaugh was basically in the same situation as Mr. Merritt in terms of the finances, and yet the evidence was clear that there was no connection of Mr. Kavanaugh to the crimes, and that he was likely in Hawaii. So, the presence of that motive was insufficient to demonstrate Mr. Kavanaugh could have been involved in the crime. That was important for the defense to be able to say ‘Even if you buy the prosecution’s argument as to the financial motivations’ – even though they disagreed with it, but if you accept it – ‘that’s not enough to prove guilt.’ And that’s true. It’s not. It takes the additional evidence to connect the defendant to the commission of the crimes.”
In reviewing the evidence in the case Judge Smith said he recognized that science has essentially deemed three levels or categories of DNA presence, those being what is left by a major, a minor and a trace contributor. In discussing Merritt’s DNA being in the Isuzu Trooper, Judge Smith acknowledged that Merritt’s DNA presence fell in the trace category, and that he had said and there was evidence to suggest he was a passenger in the vehicle several weeks prior to the disappearance of the McStay family. The judge also acknowledged that according to some experts, if Merritt had been the last person to drive the Isuzu Trooper when it was left near the Mexican border in San Ysidro, he could have been a major DNA contributor.
Nevertheless, the Judge said, Merritt’s DNA presence in the vehicle was in some fashion indicative or supportive of the prosecution’s theory. And he was dismissive of the defense’s suggestion that the DNA found on the steering wheel qualified as contact or transfer DNA, which would have been put there as a consequence of Joseph McStay having touched Merritt as perhaps in shaking hands with him when they parted during their meeting in Rancho Cucamonga in the afternoon of February 4, 2010.
With regard to the “trace showing” of Merritt’s DNA in the vehicle, Judge Smith said, “There are few actual cases – forensic cases – where transfer DNA is noted and has been demonstrated. There’s a lack of any foundation to support transfer DNA,” the judge said, though he said the defense had made an “argumentive inference” to suggest that had occurred.
Judge Smith further stated that DNA gathered from the graves holding the family was insufficient to produce a usable DNA profile for the purposes of determining the identities of the contributors of those DNA fragments, even if they were, as the defense suggested, the actual killers.
Judge Smith then iterated his theory in the one area wherein his reading of the evidence departs radically from that of the prosecution.
“Much was made of the Mitchley video of a truck leaving the McStay residence around either 7:15 or 7:45 p.m. and whether that was Mr. Merritt’s truck or not,” Judge Smith said. “The Mitchley video is of limited significance. The Mitchley video is not a complete surveillance of all of the activity that might have been in that area from February 4 and February 5. It only shows a few segments. Significantly, it does not show the truck arriving. It doesn’t show any other vehicles, either before or after the truck. So, it’s of relatively limited significance. If it is the defendant in his truck leaving the house at 7:45 [p.m.], and if the evidence is that the McStays were still in the residence until 8:28 [p.m.], that evidence would be exculpatory, but the defense claimed it was not his truck. And if it was not his truck, and a truck not his truck is leaving the area before the McStays are killed or they were still in the residence with activity going on in their residence after that truck leaves, the fact that it is not his truck does not have any significance.”
With regard to whether the vehicle seen on the Mitchley security video pulling out of the McStay residence driveway and leaving is Merritt’s truck, Judge Smith said, it is Dr. Leonid Rudin, arguably the world’s leading photogrammetrist who had started out as a prosecution witness and eventually rendered a professional opinion at odds with the prosecution’s theory that the image on the Mitchley video matched Merritt’s truck, who offered the “best evidence,” which was that the truck was excluded as being a match for Merritt’s truck.
Judge Smith said, “The defense brought up various holes in the prosecution’s case, various unanswered questions. The defense pointed out that the cause of death was multiple significant blunt force trauma to the skull of each of the victims and that would have resulted in significant bleeding of each of those victims, which would have resulted in a very bloody crime scene. And certainly, at the McStay residence there was no evidence of such a bloody crime scene. There was no evidence of a cleanup and although people can make superficial attempts at cleanup, it is rarely if ever successful in being complete. So, that leads to a conclusion that those blunt force traumas causing that extensive bleeding would not have been inflicted inside the residence. That then raises the question, if that didn’t happen inside the residence, when and where did it happen, and there was no answer to that. Clearly, that is a potential hole in the prosecution evidence. It is an unanswered question. Then, of course, there was the additional issue: If they were taken and killed on February 4 or early February 5, or just taken late February 4/early February 5 but not buried until February 6, which is the prosecution evidence based on the cell phone data of Mr. Merritt being at the gravesite area on February 6, where were they kept between that timeframe? Again, there’s no answer for that. Those are significant questions. Those could be considered significant holes in the prosecution’s case, and without knowing that, a jury could say that was sufficient for reasonable doubt and vote not guilty, or the court, sitting as the 13th juror could say that raises a reasonable doubt. The jury, however, after reviewing the totality of all of the evidence, found that the evidence convinced them beyond a reasonable doubt that the defendant was guilty, despite not having the answers to those questions. As I indicated, the court has independently examined and weighed the evidence. The court in its independent judgment after having independently examined and weighed the evidence finds that the evidence that I’ve outlined is substantial evidence to support the jury’s verdict of guilty. Further, the court after its independent examination of the evidence has come to its independent conclusion, sitting as the 13th juror, that the evidence that I have discussed is sufficient to prove guilt beyond a reasonable doubt. The court does not have a reasonable doubt as to Mr. Merritt’s guilt. Therefore the motion for a new trial on the grounds of the insufficiency of the evidence is denied.”
By the time Judge Smith had made his rulings, five o’clock had been eclipsed. He said he believed it inadvisable given the lateness in the day to try to slog through the items yet needing be dealt with, including considering an automatic motion for a reduced sentence and hearing victim-impact statements before moving on to the decision of following or deviating from the jury’s recommendations in pronouncing sentence. When Smith brought up continuing with the process until 6 p.m., that prompted Joseph McStay’s brother, Michael, to yell that he did not care if the proceedings continued until 10 p.m., followed by a cacophony that the sheriff’s department bailiffs in the courtroom were obliged to dampen. Deputy District Attorney Melissa Rodriguez informed Judge Smith that there were individuals who had made a special effort to travel to the courthouse that day to provide those statements. Judge Smith then consented to allow Patrick McStay, Joseph McStay’s stepfather, to make his presentation because he was scheduled to leave California on Saturday.
“You have been convicted of brutally killing my oldest son, my daughter-in-law and my two innocent little grandsons,” Patrick McStay said from a lectern facing the front of the courtroom that was placed behind and slightly to the left of where Maline and Merritt were seated at the defense table, which also faced the front of the courtroom. “Joey, Summer, Gianni and Joey, Jr. did nothing to you. They welcomed you into their lives and home. My son Joey did nothing but help you and your family.”
As Patrick McStay continued with his comments and it became clear that he was being directly addressed, Merritt pushed back from the defense table and turned slightly to his left to half-face the father of the man he is convicted of killing.
“What did you do in return after all the help Joey gave you and your family throughout the years, including to make sure your children and their mother would not go hungry and could pay bills while you were in jail twice in 2009?” Patrick McStay asked, and then answered, “Joey gave the mother of your children, Catherine Jarvis, money to buy food and pay bills, make sure your family didn’t have to suffer because of your actions which put you in jail. Joey accepted the responsibility, something it seems you never did. He did everything he could to help your family and you. And how did you repay him? By brutally killing him, his wife Summer and his defenseless infant sons, four-year-old Gianni and two-year-old Joey Jr. So, because of your actions, and no one else’s actions, you destroyed the lives of many other family members and friends. I believe this to be because of your own narcissism and psychotic actions, thinking of no one but yourself and not caring who you hurt or destroy. You had no concern for my son Joey, his brother Michael, his mother Susan, aunts, uncles, cousins and many other family members, along with countless friends and associates. You also certainly had no thoughts, cares or concerns for your own daughter and son when you made your daughter and son the children of a ruthless mass murderer, something your children will never escape and they have to live with and think about for the rest of their lives. Your own children are just more innocent victims, adding to the many others whom you place yourself above and you have no regard for. You and no one else can be blamed, as you have proven this to the world.”
Patrick McStay said, “I hope you burn in hell, but I will pray for your family and your children, as they are to me all just more innocent victims, of which there are many, that you have absolutely no regard or caring for when you murdered my family and caused such pain and suffering that will last forever.”
The proceedings, including further victim-impact statements, a ruling on the mandatory sentence reduction motion and Judge Smith’s ultimate imposition of sentence, are to resume in Department S-1 of the San Bernardino Justice Center at 8:30 on Tuesday, January 21.

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