After an eight-week effort in which teams sifted through more than 6,500 tons of garbage, investigators on Tuesday called off their search of the Victorville Landfill in the so-far unsuccessful attempt to recover the body of 6-year-old Duke Flores.
Investigators have made extremely strong statements to indicate the boy, who has not been seen or heard from since April, is dead. Both his mother and aunt have been in custody for two months and were charged shortly after their arrests with murder. Nevertheless, no positive proof to establish the child is dead has publicly emerged.
The son of Jose Flores and Jackee Contreras, Duke did not cohabit with his farther, but rather lived with his mother and his mother’s twin sister, Jennifer Contreras, at a home in the 22000 block of Cherokee Avenue in Apple Valley.
On Thursday, April 25, 2019, Duke’s grandmother, Jose Flores’ mother, requested that the sheriff’s department make a welfare check on the child. That evening, at approximately 10:06 pm, deputies from the San Bernardino County Sheriff’s Department stationed in Apple Valley as members of that town’s police department responded to the Contreras residence. Shortly after their arrival, the deputies were told by Jackee Contreras that she had not seen her son for approximately two weeks. Deputies immediately began a search of the area. Jackee Contreras was arrested, transported and booked into the High Desert Detention Center for child neglect, stemming from her delay in reporting her son missing. She was later transferred to the West Valley Detention Center in Rancho Cucamonga, where she was booked on suspicion of murder.
There is a report, the provenance and reliability of which is unknown, that Duke Flores was actually seen in the front yard of his mother and aunt’s home earlier in the day on April 25. The sheriff’s department, however, in order to protect the integrity of its investigation, has released relatively few details about what deputies and detectives have learned from their inquiries. The department has neither denied nor confirmed the claim with regard to the April 25 sighting.
Some details are known.
On Saturday, April 27, following interviews with family members, detectives arrested Duke’s aunt, Jennifer Contreras. She was booked for murder.
According to the department, “Through investigation, detectives had reason to believe that Jackee and Jennifer hold responsibility for the disappearance and death of Duke Flores. They think the sisters discarded the boy’s body in a dumpster near the family home on Cherokee Avenue in Apple Valley.”
Shortly after 7 am on Monday, April 29, a crew involving an unspecified number of homicide detectives, sheriff’s department volunteers and landfill personnel were actively searching the landfill in Victorville for the body of Duke Flores.
By 1 pm that day, the search team had swelled to four homicide detectives, 36 sheriff’s department volunteers, three canines, and 17 additional sheriff’s department members as well as landfill personnel. The primary area searched was approximately 70 feet by 70 feet by 10 feet in depth, involving some 600 tons of material.
The search resumed on the morning of April 30. Also that morning, Jackee Contreras and Jennifer Contreras were brought before Superior Court Judge Lisa Rogan for arraignment in Victorville Superior Court. With more than a dozen of Duke Flores’ family members present, they each entered a single not guilty plea to one count of murder. Judge Rogan set their bail at $1 million each.
Intensified searches at the landfill continued thereafter.
Following their arrests, no further statements from Jackee Contreras or Jennifer Contreras have been obtained to assist in the location of Duke Flores, either alive or dead.
A release from the sheriff’s department on Tuesday stated, “The search at the Victorville Landfill began on April 29th and continued until June 21st; the recovery effort ended with no remains found.” The release continued, “Numerous homicide detectives, deputies throughout the department, sheriff’s department volunteers, canine units, coroner Investigators, district attorney Investigators, and personnel from the landfill dedicated 8 weeks to the search.  The initial search area of approximately 70 feet by 70 feet by 10 feet in depth was expanded to 75 yards in length, 60 yards in depth and 20 feet in height.  An estimated 6,500-to-7,000 tons, 13-to-14 million pounds of material was searched.”
“This is not the outcome we had hoped for, but we knew going into this search that there was a chance we would not locate Duke,” Sheriff John McMahon said. “I am extremely proud of the dedication shown by every person who continued to show up day after day, desperately hoping to locate the young boy.”
At the sheriff’s office, the investigation is ongoing, with Detective Narcie Sousa leading efforts by the department’s specialized investigations division relating to Duke Flores.
In the meantime, prosecutors with the San Bernardino County District have been stymied by a body not having been produced. Jackee and Jennifer were due in court this week, on June 26 and June 27, for a pre-preliminary hearing and a preliminary hearing. On June 26, Judge Rogan held the pre-preliminary hearing, which was intended to ascertain if the circumstances warranted going ahead with the preliminary hearing. A determination was made to vacate the June 27 preliminary hearing. Instead, a pre-preliminary hearing was set for July 9 and a preliminary hearing tentatively set for July 10.
The sisters remain in custody.
-Mark Gutglueck

U.S. District Judge George Wu a week ago countermanded action taken relatively early in the Donald Trump administration which was widely perceived as advancing the prospects of the controversial Cadiz water project.
An outgrowth of an earlier failed effort to divert Colorado River water into the East Mojave water table for storage before being pumped to the greater Los Angeles area to augment the water supply there, the Cadiz, Inc. undertaking morphed into a plan to withdraw billions of gallons of water from the water table below the East Mojave Desert and convey it by pipeline for use elsewhere in California. After that project was given go-ahead through a somewhat irregular approval process that involved oversight of the project being removed from local control and a water agency more than 200 miles distant from the wells to be sunk signing off on their drilling, a firestorm of protest and opposition from environmental groups erupted.  In 2015, a decision was made by the Obama Administration-era U.S. Bureau of Land Management threw a wrench into the machinery when it denied Cadiz, Inc. use of the railroad right-of-way along which the company intended to run its pipeline to meet up with the Metropolitan Water District’s existing water conveyance system some 65 miles distant from the water wells it intended to dig.
At issue was the degree to which railroads are at liberty to allow their rights-of-way to be used for non-railroad purposes. A railroad right-of-way can accommodate a water pipeline if the water is to be used by the railroad, but the use of steam engines went out of vogue last century. In 1989, an Interior Department solicitor concluded that an 1875 railroad law allowed railroads to authorize other uses for that right-of-way without Department of the Interior approval. A subsequent solicitor’s opinion altered that conclusion to state other uses had to “derive from or further” a railroad purpose. The Bureau of Land Management office for California later found that “conveyance of water for public consumption is not a railroad purpose.” Anticipating such a contretemps over the right-of-way use issue, Cadiz, Inc. had previously proposed operating an “historic” locomotive on the railroad line along the water conveyance route for its entertainment and historically-informative value as an amenity to the project. Both federal and state government officials within the Obama Administration saw this as a gimmick and illegitimate ploy by Cadiz, Inc. to game federal regulations and stood firm against using the railroad right-of-way for the pipeline.
Just two months after Donald Trump came into office, however, an order was given in March 2017 to Timothy Spisak, the acting assistant director for the Bureau of Land Management’s Division of Energy, Minerals, and Realty Management, to undo any federal roadblocks to the project. Spisak complied, and in very short order he issued a blanket memo revoking the Bureau of Land Management’s 2015 decision to disallow the use of the existing federal railroad right-of-way for the water pipeline Cadiz, Inc. intends to construct. The Donald Trump Administration, for its part, saw the effort to prohibit the use of the span of land paralleling the railroad line for the aqueduct as a gaming of the system by environmentalists, which led it to use its authority to bring about Spisak’s blanket memo.
The Bureau of Land Management reacted to the memo by providing clearance for Cadiz, Inc. to begin construction of the pipeline within the railroad right-of-way. At that point, a coalition of environmental groups resolved to remove the issue into the federal court system, and challenged the agency’s action in a series of lawsuits.  In those suits which were consolidated in 2018, Earthjustice, the Center for Biological Diversity, the Center for Food Safety and the National Parks Conservation Association contended that if the Cadiz water-mining project were allowed to go forward it would drain life-giving springs in the Mojave Trails National Monument and surrounding public lands, killing vegetation and destroying key habitat for a host of desert wildlife, including the threatened desert tortoises, bighorn sheep, Mojave fringe-toed lizards and kit foxes. In the course of the suit, in addition to contesting the misuse of the railroad right-of-way, they cited analyses made by hydrologists from the U.S. Geological Survey which showed that the environmental impact report Cadiz, Inc. commissioned and submitted to the Santa Margarita Water District to obtain project go-ahead vastly overstated the aquifer’s recharge rate and that the project was unsustainable in that it would deplete the area’s water table.
Over the last two years, the pipeline aspect of the project has hung in limbo as litigation, primarily in the form of briefs filed with the court, proceeded. In a decision released Friday, U.S. District Judge George Wu, who sits in the Central District of California, took issue with two elements of the Bureau of Land Management’s 2017 action. The 1875 railroad law, Wu ruled, required that uses of railroad rights-of-way had to be related to railroad purposes and further the operation of the railroad specifically. As such, Wu found, the Bureau of Land Management’s argument that it had the authority to approve any use of the right-of-way if the use did not interfere with the railroad to be inconsistent with the law and previous interpretations of it.
Wu further determined that the Bureau of Land Management offered no legal rationale upon which it made its 2017 reversal of its 2015 finding the water pipeline would not further a railroad purpose and therefore could not be located within the railroad right of way.
“The Court would hold that the BLM had the duty to provide a reasoned explanation for why it disregarded certain facts from the 2015 determination in its conclusion that the component parts of the Cadiz pipeline furthered railroad purposes. Because the 2017 determination provided no explanation for reversal, the Court would find it arbitrary and capricious,” the ruling says.
Federal officials have not commented on Wu’s ruling.
“We’re grateful the court decision will stop the Trump administration’s blatant attempt to do a favor for their corporate friends. The court found that the reversal of Obama-era policies was unjustified and unexplained,” said Lisa Belenky, a senior attorney with the Center for Biological Diversity. “This massive water-privatization scheme is not sustainable. [The] Cadiz [project] will devastate the entire Mojave Desert ecosystem that relies on that water for survival.”
“The court saw right through the Trump administration’s attempt to shoehorn the massive Cadiz pipeline into a railroad easement through Mojave Trails National Monument,” said Greg Loarie, an attorney at Earthjustice who represented the Center for Biological Diversity and Center for Food Safety. “The Cadiz pipeline is designed to facilitate an ill-conceived corporate plan to profit from a public necessity. It has nothing to do with the railroad.”
Cadiz, Inc. Chief Executive Officer Scott Slater shook off the setback Wu’s ruling represented, and confidently stated he “expects no delays to project implementation as a result of Friday’s ruling.”
Slater then went on the offensive, saying the 2015 decision by the Obama Administration’s Bureau of Land Management denying Cadiz, Inc. use of the railroad right-of-way “was marred by controversy. In response to Freedom of Information Act requests, it was disclosed that the principal author of the 2015 BLM position was communicating with project opponents and short sellers in the company’s public securities while the evaluation was ongoing. Several railroad, infrastructure, agriculture and labor organizations, as well as members of Congress from both sides of the aisle, called for a reversal of BLM’s 2015 position, asserting it did not comply with the agency’s own internal review standards and was contrary to 100 years of federal precedent that encouraged the co-location of infrastructure in railroad rights-of-way in order to protect adjoining federal lands from environmental impacts.”
Slater, himself an attorney, said, “The judge’s decision to remand the 2017 BLM evaluation of the pipeline back to agency was based on purely procedural grounds. The decision does not call into question the facts upon which BLM relied in 2017 to conclude the pipeline sufficiently furthered railroad purposes and therefore did not require additional permits from the BLM, nor does it trigger any new environmental review. Although the court believed that BLM applied the correct legal standard in making its 2017 evaluation, Judge Wu sent the evaluation back to BLM to provide the explanation he desired concerning the change in position. While the federal government argued, and the company believes, that the record fully supported the BLM’s 2017 findings “as is,” we are confident that BLM will swiftly prepare an amended evaluation completely compliant with the court’s direction.”
In pursuing the project, Cadiz, Inc. has embittered a cross section of San Bernardino County residents, not just simply because of its effort to commandeer the East Mojave region’s water supply for use elsewhere but by the manner in which it did so.
In the 1990s, Cadiz, Inc. then known as The Cadiz Land Company, sought to interest the Metropolitan Water District in a proposal to convey up to 1.5 million acre-feet of what was referenced as “surplus” Colorado River water to the Cadiz Valley and “store” that water by pumping it into the water table and then extracting the water and conveying it to Greater Los Angeles during “dry years.” Ultimately, however, the Metropolitan Water District rejected that proposal. Litigation ensued, in which the Cadiz Land Company alleged the Metropolitan Water District had backed out of the deal.
A decade later, the Cadiz Land Company had reinvented itself as Cadiz, Inc. and reconstituted its water sale scheme to one that involved drafting the water from the Cadiz and Fenner valleys in the East Mojave Desert and selling it to a host of water purveyors in Los Angeles, Orange and Riverside counties.
Cadiz, Inc. plied then-First District Supervisor Brad Mitzelfelt, who in 2012 was vying for Congress, with $48,100 in political donations to finesse him into having San Bernardino County surrender its authority to consider the project application and determine if it were to be allowed to proceed, and if so, pursuant to what conditions, including the scale of the water diversion. Mitzelfelt, in whose district the entirely of the East Mojave was then located, in contrivance with Cadiz, Inc. prevailed upon his board colleagues to let the board of directors of the Santa Margarita Water District in Orange County, located 217 miles away from the Cadiz Valley, to carry out the environmental certification and approval of the controversial water extraction project in the East Mojave. The Santa Margarita Water District serves the affluent Orange County communities of Rancho Santa Margarita, Mission Viejo, Coto de Caza, Las Flores, Ladera Ranch and Talega. That agency evaluated the environmental impact report for the project, despite the consideration that the water district was entangled in something of a conflict of interest relating to the project since it was to be the largest consumer of the 75,000 acre feet of water the company was proposing to draft annually from the project’s 34 wells which were to be sunk in the Cadiz and Fenner valleys.
The unorthodox approval process for the plan to draft billions of gallons of water from the East Mojave Desert’s pristine aquifer for use in Los Angeles, Orange and Riverside counties, utilizing a governmental entity more than 200 miles removed from the property to be impacted which simultaneously had a financial and operational interest in the project, fueled questions about the integrity and legitimacy of the environmental certification of the project. Ultimately, those questions formed the basis of several of eleven lawsuits which kept Cadiz, Inc. tied up in court for years. Though the company was able to prevail in most of those suits, which it succeeded in having removed to Orange County Superior Court, appeals on some of those suits are yet proceeding, even as Cadiz, Inc. is hoping to at last put those challenges behind it and get on with the project. The company, in both its Cadiz Land Company and Cadiz, Inc. manifestations, has never operated at a profit in its 31 years of existence. It has sustained itself with capital provided by wave after wave of investors. With each successive infusion of capital, the company has intensified its promotion of the project, accompanied by an immediate or gradual rise in stock price. But as the project has continued to languish, the stock price has periodically fallen, only to be revived by further rounds of investment. This perpetual rise and fall of the company’s stock price has sparked comparisons to a Ponzi scheme. With investors becoming increasingly nervous, the company has embarked on an ambitious effort to clear the way for the project to proceed once all of the legal and procedural issues are resolved, and has striven to line up purchasers for the water so it can begin generating revenue to satisfy its stockholders at the earliest opportunity.
Faced with a multitude of both legal and procedural challenges, Cadiz, Inc. at every turn has sought to move the project forward on the basis of whatever means possible, quite often by political means, which has included seeking to bankroll politicians in San Bernardino County, despite its decision nearly a decade ago to bypass having the San Bernardino County Board of Supervisors oversee the project approval. More often than not, those efforts to purchase political support have not only failed, but boomeranged to further retard the project. A case-in-point was the company’s backing of Mitzelfelt. While the provision of money to Mitzelfelt did produce the outcome of removing the project consideration and environmental impact approval process to Orange County, Mitzelfelt’s support of the company severely undercut him politically. Because his term as First District supervisor was set to expire in 2012, he made a choice, buoyed by the infusion of campaign cash from Cadiz, Inc. to run instead for Congress. That choice meant that he did not seek reelection as supervisor. In the 2012 primary election, in which seven other hopefuls along with Mitzelfelt were vying to replace outgoing Congressman Jerry Lewis, his support of the Cadiz project transformed him into ballot box poison and he was able to place no better than fifth in the primary contest, an outcome which effectively ended his political career. The eventual winner in that contest was Paul Cook, who at that time pronounced his opposition to the Cadiz water project. Subsequently, Cadiz, Inc. took to providing Cook with hefty political donations, which in time diluted the Congressman’s opposition to the project. Yet in buying Cook’s support, the company further eroded its reputation with the populace in San Bernardino County and galvanized its opposition.
Dianne Feinstein has proven to be the most prolific and effective opponent to Cadiz, Inc.’s designs on the East Mojave’s water supply. She was the lead sponsor of the 1994 California Desert Protection Act signed into law by President Bill Clinton and she was the sponsor of the California Desert Protection Act of 2011, both of which feature provisions that have been wielded against the Cadiz Water Project. She was the author and sponsor of the California Desert Conservation and Recreation Act of 2015 and the California Desert Protection and Recreation Act of 2017. With Feinstein due to seek reelection in 2018, Cadiz signed on to support California State Senator Kevin de León. D-Los Angeles, one of the foremost of the Young Turks in the Democratic Party in California, in his effort to unseat Feinstein. de León  was from 2014 until March 2018 the California Senate President Pro Tem. At the same time, Cadiz, Inc. moved to support a coterie of politicians close to de León, including Toni Atkins, D-San Diego, the former California Assembly Speaker and currently the California Senate President Pro Tem, and former Assemblyman and former State Senator Richard Lara, who is currently California’s Insurance Commissioner. de León’s U.S. Senatorial bid was ultimately met with defeat in the November race against Feinstein.  As a consequence, the Blue Dog establishment wing of the Democratic Party in California, of which Feinstein is a leading member, is in ascendancy.  The Democrats are in firm control in Sacramento. As such, Feinstein was able earlier this year to call upon two of her allies, State Senator Richard Roth and Assemblywoman Laura Friedman, to introduce Senate Bill 307, an amalgamation of the two legislators’ previous efforts to safeguard desert water, which they had likewise worked with Feinstein on drafting. Friedman’s Assembly Bill 1000, introduced in July 2017, and Roth’s Senate Bill 120, introduced in August 2018, both encountered stiff and ultimately effective opposition as a consequence of Atkin’s, Lara’s and de León’s efforts, together with a program put together by a lobbying firm headed by Greg Campbell, Toni Atkins’ former chief of staff, another lobbying firm headed by Justin Fanslau, who was Atkins’ former legislative director, and Mercury Public Affairs, which employs former Assembly Speaker Fabián Nuñez. With Lara and de León now absent from the California Senate, the prospects for Senate Bill 307 are bright, and even if it does not pass, a determined effort to replace it with another similar bill will be launched.
-Mark Gutglueck

By clicking on the blue portal below, you can download a PDF of the June 28 edition of the San Bernardino County Sentinel.

Sentinel 06-28-19

By Mark Gutglueck
Among the legion of noteworthy and colorful personages in the rich history of San Bernardino County, three of those who occupied positions of prominence during the first century of the county’s existence, Nicholas Earp, Byron Waters and John C. Ralphs, can all be said to hold their own when it comes panache and character.
Each was an alpha male who left an indelible impression on the communities around him, and the greater San Bernardino area was in more ways than one shaped by their temperaments and the forcefulness of their individual wills.
As fate would have it, the three came together on the streets of San Bernardino in the late fall of 1881. Perhaps predictably, this resulted in something of a personality clash. All three survived, though one came out of it something the worse for wear, two sustained a blot on their legal records, and the resultant tiff is something still being talked about in San Bernardino nearly two score and a hundred years later.
On the basis of simply being the father of  legendary lawmen Wyatt, Virgil and Morgan Earp, Nicholas Porter Earp earned his way into American history. But he was remarkable in his own right in a multiplicity of roles throughout his life, including serving as a lawman himself in the roles of a constable and justice of the peace, as well as a farmer, cooper, teacher, bootlegger and wagon-master.
Born in Lincoln County, North Carolina in 1813, he moved with his family soon thereafter to Hartford, Kentucky, where he was raised. Nicholas as a young man served in the Black Hawk War of 1831 and later was a sergeant in the Mexican-American War.
In 1836 he married Abigail Storm in Hartford and she bore him two children, Newton Jasper Earp and Mariah Ann Earp. Abigail and Mariah both died in 1839. On July 30, 1840, while yet in Hartford he remarried to Virginia Ann Cooksey, with whom he had eight children: James Cooksey Earp, Virgil Walter Earp, Martha Elizabeth Earp, Wyatt Berry Stapp Earp, Morgan Seth Earp, Baxter Warren Earp, Virginia Ann Earp and Adelia Douglas Earp.
Prior to his involvement in the Mexican-American War, by 1845 he and Virginia had relocated their family to Monmouth, Illinois, from which at one point in the 1850s they intended to stage a move to California, which was aborted after the death of their daughter Martha. There he farmed and utilized his skill working iron and wood, cutting and shaping timber and heating or steaming it to form fit it into wooden casks, barrels, vats, buckets, tubs, troughs and other staved containers. Fastening wooden handles to some of the items he had created, he fashioned implements and tools such as rakes, hoes and shovels.
After the war, Nicholas’ success as both a farmer and cooper proved uneven as he and his family changed residence from Monmouth to Pella, Iowa and back to Monmouth again, where he successfully ran for the position of Monmouth town constable, serving in that post for roughly three years. Thereafter, however, he found himself on the other side of the law, and in 1859 he was tried for and convicted of bootlegging. He was not sentenced to incarceration but was stiffly fined. Unable to satisfy the fines, he suffered the ignominy of having liens recorded against his property, such that his property was sold at auction in November 1859. Nicholas and Virginia and their brood thereupon left Monmouth for Pella once more.
The advent of the Civil War was for Nicholas a somewhat fortuitous event. He had spent much of 1860 sojourning from Iowa back to Monmouth where he was constantly in court contesting lawsuits pertaining to his unpaid debts and tax evasion. After the war between the states began in 1861, Nicholas Earp found himself back in the military element and ethos of his earlier manhood, which also supplied him with an income. He found himself gainfully employed, recruiting and training local volunteers and inductees, who then became part of the Union’s standing army. His sons Newton, James and Virgil joined the Union Army. Newton and Virgil fought with distinction at several battles in the North’s eastern campaigns. James was severely wounded in Fredericktown, Missouri, but survived, returning home in the summer of 1863.
In May 1864 Earp wangled a set-up as a wagonmaster, to lead a party that consisted of what turned into ten families plus his own, to California. Earp used the opportunity this presented to transplant the remainder of his family then living with him and Virginia at the time, including their children Wyatt, Jim, Morgan, Warren, and Adelia, to the Golden State. They embarked on May 12, with three families from Pella, the Rousseaus, the Hamiltons, and the Curtises, arriving intact in San Bernardino on December 17. At several junctures relatively early along the seven-month, 1,700 mile sojourn, seven more wagons, mostly from Utah, joined the party.
Diaries kept by Sarah Jane Rousseau and some of the members of the party picked up in Utah offer a glimpse of Earp’s overbearing personality. Rousseau depicted him as a single-minded leader who became unhinged at the first hint of disobedience or any expression that contradicted his direction. She wrote that when anyone questioned his authority or instructions, “It made him awful mad and he was for killing. He used very profane language and he could hardly be appeased.” In a November 24 entry, she related, “This evening Mr. Earp had another rippet with his son Warren [about] fighting Jimmy Hatten. And then Mr. Earp raged about all the children, using very profane language and swearing that if the children’s parents did not whip them as he did or correct their children, he would whip every last one of them himself. He shows every day what kind of man he really is. He is such an uncouth and foul-mouthed person I think we made a terrible mistake engaging him and furnishing him horses and provisions to lead this wagon train west.”
Whatever the feelings of those he led, Earp managed to get them safely through some brutally treacherous territory to their destination. In short order, Nicholas leased farm property adjacent to the Santa Ana River near present-day Redlands and moved his family there.
Byron Waters was some 36 years younger than Nicholas Earp, having been born at Canton, Cherokee County, Georgia, in 1849, the youngest son of Henry H. Waters, a self-taught practitioner of the law who became the executive secretary to Georgia Governor Joseph E. Brown before the outbreak of the Civil War and remained not only in the capacity of the executive secretary to the governor in a Confederate state but held the rank of colonel in the Confederate Army, and directed in large measure the military affairs of Georgia, successfully mustering thirty regiments for the rebel cause. Byron Waters was reared to the age of sixteen years in his native state and was afforded the advantages of its best private schools, in which he continued his attendance until the close of the war. With the serious financial reverses the Waters family experienced at the end of the Civil War, Byron took his father’s advice and brought a large store of cotton from the Waters plantation to market and utilized the proceeds to get the hell out of Georgia, leaving the troubles and difficulties of Reconstruction behind him. He headed west to California, where Henry’s brother and Byron’s uncle, James W. Waters, was prospering, arriving in 1867. James Waters was both a Second District and Third District supervisor in the early days of San Bernardino County. James Waters hired his 18-year-old nephew Byron as a cowboy on his ranch in Yucaipa.
Punching cows was not what young Waters wanted to spend his life doing, and in April 1869, he began the study of law in the office of Judge Horace C. Rolfe of San Bernardino. Later he continued his training in the law under the direction of Judge Henry M. Willis, also of San Bernardino. Byron Waters was admitted to the bar in January 1871, and for the next fifty some years he was active in the practice of law in the various courts of the State of California but most predominantly in San Bernardino, retaining high prestige and distinction as one of the ablest members of the California bar as well as one of the most successful.
On December 31, 1872, he married Miss Louisa Brown, a native daughter of San Bernardino and one of the daughters of John Brown, Sr. and Louisa Sandoval Brown. John Brown was the noted hunter and trapper from the Rocky Mountains who later established a toll road at the Cajon Pass.
Byron Waters made his home and had his professional headquarters in San Bernardino. In 1881 he created and organized the Farmers Exchange Bank of San Bernardino, one of the leading financial institutions in the state. He was its first president, and held that office for several years.
An unwavering Democrat, Byron Waters remained loyal to the party even while California and San Bernardino County were dominated by a Republican majority. In San Bernardino County, at the age 28, he was elected in 1877 to the state legislature. At the ensuing session he became a recognized leader of his party in the Assembly, and before the close of the session he stood at the head of the lower house as a member of that body. In 1878 he was elected as a delegate at large to the State Constitutional Convention. In 1886, Waters was nominated as the Democratic candidate for the office of justice of the Supreme Court of the State of California. He was unable to overcome the far greater strength of the Republican party and was defeated by a small majority. Together with his uncle James Waters, Byron Waters was one of the early major developers in San Bernardino. They built both homes and business structures in and around the city, including a brick building on Third Street once used as a courthouse, an Opera House on D Street, two structures for his law offices and three residences, first a cottage on West Fifth Street early in life, later a large brick residence on Fourth Street opposite what was the Elks Club, and later a residence on Bunker Hill, where with his family he was residing in the 1920s.
By the time of his retirement after 51 years of practicing law, Byron Waters’ list of cases presented before the Supreme Court of the state was one of the largest claimed by any member of the bar then active.
John C. Ralphs was 39 years younger than Nicholas Earp and three years younger than Byron Waters, the son of immigrants from England, Richard Ralphs, a potter and also a bricklayer by trade, and Mary Newal Ralphs, who upon landing on the Eastern Seaboard continued moving west. John Ralphs was born in Utah in 1852, while his parents were on their way to California in a wagon being pulled by a team of oxen. Richard Ralphs was able to do well for himself and his family in California by virtue of his skill, with which he built the original Los Angeles Jail. John Ralphs had six surviving siblings, which did not include his older sister who died during the journey to California. Richard Ralphs eventually was able to purchase 239 acres in what was then referred to as “the American District” in San Bernardino that he used primarily for general farming and stock raising, as well as several lots.
John C. Ralphs, after receiving a limited education, went to work in earnest as a farmhand on his father’s estate at the age of ten. He was yet quite young when he first purchased a claim on land next to the Santa Ana River, where he remained for fifteen years before losing the claim. He then purchased twelve acres in the American District, and augmented that property with another 100 acres. He built what was described by historians as a “fine residence” on Mill Street and Mount Vernon Avenue. In 1882, at the age of 29, he married Miss Eunice Roberts, and they had seven children, Mary Angeline, Martha, Richard, George, Ida Belle, Charles B. and John.
Ralphs’ brother, George, made his own mark on San Bernardino County and Southern California as the founder of Ralph’s Markets.
In 1902, John C. Ralphs was elected sheriff of San Bernardino County, and was reelected twice, serving until 1915, at which point he was the longest serving sheriff in San Bernardino County history up to that date. He was something of a traditionalist and a pragmatist. Though the automobile was then coming into its own, there were still very few paved roads in 20,105-square mile San Bernardino County, with many of the existing dirt roads essentially impassible for the cars of the day. Ralphs therefore chose to have his men continue to use horses for patrol in the county’s more wide open environs, and had them rely upon a horse-and-buggy within the more urbanized areas. It would fall to his successor as sheriff, J. L. McMinn, to transform the department from one that was mounted on horses to a motorized vehicle-oriented police force.
Ralphs would garner historic notoriety for two of the last mounted-posse manhunts in the Southwest which occurred after the turn of the 20th Century. In 1906 he and Undersheriff Samuel W. McNabb ventured out into the Mojave Desert and arrested Death Valley Scotty for instigating the Battle of Wingate Pass. In 1909 Ralphs was a central participant in the protracted three-posse effort to run “Willie Boy” to ground.
Twenty-eight years earlier, well across the state line in Tombstone within the Territory of Arizona, another iconic Old West exhibition involving famed lawmen took place, the October 26, 1881 shootout at the O.K Corral.  That event, in which three of Nicholas Earp’s sons – Wyatt, Virgil and Morgan – joined by Doc Holiday, found themselves in a deadly face-off with  five cowboys – Tom McLaury, Frank McLaury, and Billy Clanton,  Ike Clanton, Billy Claiborne, and Wes Fuller, was precipitated in some measure by what had occurred the previous day, October 26, when Ike Clanton was pistol whipped by Virgil Earp, the town marshal, and Frank McLaury was pistol whipped by Wyatt Earp, one of the town’s deputy marshals, both for not complying with a town law that was put in place by Virgil Earp which prohibited anyone other than lawmen from carrying guns.
When the dust and gun smoke had cleared on October 26,  Tom McLaury, Frank McLaury, and Billy Clanton were dead.
Reprisals from the cowboys living in and around Tombstone would follow. Late on the evening of December 28, 1881, Virgil Earp would be ambushed by three assailants as he was walking from the Oriental Saloon to his room at the Continental Hotel in Tombstone. He was shot in the arm, neck and hip, and was hit with buckshot in his side. He survived the shooting but lost his left arm, which had to be amputated. On March 18, 1882, Morgan Earp was ambushed as he was playing pool at the Campbell & Hatch Billiard Parlor in Tombstone. The single bullet tore through his spinal column, gall bladder and left kidney and penetratied through his loin. He died less than an hour after being shot.
Just a tad more than a month after the shootout at the OK Corral, while all of his sons were yet alive and fully intact, Nicholas Earp was in San Bernardino.
On November 27, 1881, Nicholas Earp, who at that point was living in Colton, had gone to the Farmers’ Exchange Bank in downtown San Bernardino. What had started as a discussion between Earp and John Ralphs soon turned into a difference of opinion, whereupon the irascible Earp was heard by anyone within even distant earshot bellowing at his conversant. The heated exchange caught the attention of Byron Waters, a principal in the bank and then a relatively young attorney who was establishing his reputation in the town. Waters came out onto the street and  endeavored to intervene, at one point interjecting himself between the two men who appeared as if they might escalate the confrontation into fisticuffs.
Earp thereupon relinquished his war of words with Ralphs and, according to that day’s edition of the San Bernardino Daily Index, let loose a “torrent of abuse” as he trained his invective toward Waters, using a term that referenced the initial element of procreation in telling the lawyer he should hush himself and devote his mental faculties to his own affairs that had been condemned by the Almighty to hell.  According to the Daily Index, the then-32-year old Waters responded not in word but deed, rendering the 68-year-old Earp “damaged about the eye and badly lamed.”
The event brought the civil authorities in San Beranrdino into the picture and thereafter both Earp and Waters ended up at the San Bernardino Courthouse, where they were given the opportunity to explain their action. Earp was assessed a $5 fine. Waters had to pay $10.
Nicholas Earp carried on in this life until 1907, dying at the age of 93.
Ralphs made it to the age of 79, having run his course by 1931.
Waters died in 1932 at the age of 83.

FBN 20190005196
The following persons are doing business as: LIBERATION FINANCIAL 3085 N. ASHFORD AVE RIALTO, CA 92377 LEN B COOPER 3085 N. ASHFORD AVE RIALTO, CA 92377
Business is Conducted By: AN INDIVIDUAL
Signed: BY SIGNING BELOW, I DECLARE THAT ALL INFORMATION IN THIS STATEMENT IS TRUE AND CORRECT. A registrant who declares as true information, which he or she knows to be false, is guilty of a crime. (B&P Code 17913) I am also aware that all information on this statement becomes Public Record upon filing.
s/Len B. Cooper
This statement was filed with the County Clerk of San Bernardino on: 4/26/2019
I hereby certify that this is a correct copy of the original statement on file in my office.
Began Transacting Business: N/A
County Clerk, Deputy
NOTICE- This fictitious business name statement expires five years from the date it was filed in the office of the county clerk. A new fictitious business name statement must be filed before that time. The filing of this statement does not of itself authorize the use in this state of a fictitious name in violation of the rights of another under federal, state, or common law (see section 14400 et. Seq. Business & Professions Code).
Published in the San Bernardino County Sentinel on 5/24, 5/31, 6/07 & 6/14, 2019.

Sentinel 06-21-19

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.”

By Amanda Frye and Mark Gutglueck
Future Redlands city managers will not get the same luxuriant accommodations on the public employee gravy train as their predecessors were entitled to as a consequence of the increasingly contentious divorce between the city and former City Manager Nabar Martinez.
Since Martinez’s November 6, 2018 firing, the city council and other city officials have learned of a secret, backroom deal Martinez brokered in 2016 with the city’s then- human resources director/risk manager, Amy Martin, that conferred upon Martinez and two of his children lifetime medical benefits.
The city has refused to provide those benefits to Martinez,  his son, Enrique Anatoly Maryshev-Martinez, and his daughter, Marianna Valentina Marysheva-Martinez. Nevertheless, the trio collectively followed up with a $1.5 million claim against the city, indicating they would relinquish their rights to those benefits only upon the city making such a cash payout. The city rejected that claim and Martinez, Maryshev-Martinez and Marysheva-Martinez filed suit against the city and City Attorney Dan McHugh.
The city, represented by the law firm of Best Best & Krieger, is constructing its defense against the suit on multiple grounds, rejecting the suits primary allegation of fraud and negligent misrepresentation, while pointing out that the lifetime coverage was part of a deal worked out by Nabar Martinez and Martin. Martin, who now goes by the name Amy Hagan, left the city over a dispute with Martinez, in which she claimed he was subjecting her to undue, unreasonable and improper demands and pressure. The contract, therefore, is theoretically void given that its terms, which were arrived at by Martin under Martinez’s prompting, were unduly influenced by Martinez. Martinez had direct authority over Martin, and could therefore dictate to her to put into the contract provisions that were inconsistent with the city’s best interest. Martinez, in his role as city manager and Martin’s direct supervisor, was therefore engaged in a conflict-of-interest in either or both dictating the terms of the benefit or ratifying it, according to the city. Under California law, any public contract tainted by a conflict of interest is void. Moreover, Martinez, as the city manager at the time that the deal to provide Martinez and his children with the medical coverage was arrived at, is therefore a party to the fraud and negligent misrepresentation he is alleging, according to the city.
Additionally, the city contends that the plaintiffs failed to allege a specific factual basis in support of the contention that McHugh sought “to deceive, vex, annoy or harm” Martinez or his children.
Additionally, the city maintains through Best Best & Krieger it is not liable for injuries caused by any misrepresentation Martin engaged in by proffering Martinez the medical coverage.
Yet up in the air at this time is whether the defense the city is making in the face of the lawsuit will suffice.  Martinez, Maryshev-Martinez and Marysheva-Martinez are represented by Sanford Kassel, who is anticipated to assert that a deal is a deal when consenting parties are involved, no matter the circumstances or authorities of those negotiating such a contract as long as those parties have standing within the entities they represent and have been duly appointed to those capacities, and that under the principles of contract law, a signed and ratified contract is binding. Also, potentially to be brought to bear in the matter is Martinez’s possession of a so-called “black book,” in which he made a practice of entering detailed accounts of closed door and private remarks and statements by the council, variances between public pronouncements by the council and action taken during closed door votes, miscues by council members individually and the council collectively, as well as both illegal and simply embarrassing acts by council members since shortly after his 2007 hiring.
When he was fired in November, there were reports that Martinez was to receive a severance package of $888,920.43, consisting of 18 months of his $350,896.08 annual salary & add-on pay and 18 months of his annual benefits of $78,383.94, which totals $643,920.43, along with a cash buyout of his accumulated perquisites including unused sick leave and vacation time and equipment and vehicle allowances totaling roughly $245,000. That payout of nearly $890,000 was rumored to have been brokered with the understanding that it would end any further claims Martinez would make against the city and buy his silence forever with regard to untoward acts by current and former city officials. The Sentinel was informed by the city’s chief spokesman, Carl Baker, however, that the report of the $888,920.43 payment to Martinez was in error. In actuality, Baker said, the total salary payout to Martinez was not 18 months but 15 months at $364,182, accrual payouts of $42,451.67 and $11,205.60 for 80 hours of unused administrative leave, totaling $417,839.27.
Whatever the precise case, some dissatisfaction on Martinez’s part endures, and he believes himself in a position to do something about it.
One year ago, Martinez was riding high at Redlands City Hall, and had the confidence of all of the city council, senior staff and McHugh. In any disputes with city residents, lesser city staff, or other entities, the city council reflexively sided with Martinez.  Essentially, he found himself undone when Martin-Hagan, who had left the city unofficially in December 2017 and officially in January 2018, threatened legal action over the city’s refusal, as would prove similar in Martinez’s case, to honor her claim to an entitlement to a so-called “medical bridge” program giving her medical coverage until she she reached the age of 65, conferred upon her in her separation agreement from the city, signed by her and Martinez on January 5, 2018. That medical coverage was in addition to a cash settlement of $133,981.25 Martin-Hagan was given to leave, derived from providing her with six months’ severance pay in the amount of $84,500 along with a $49,481.25 cash conversion of her accumulated 609 hours of vacation, illness and administrative break leave.
It was in the city’s defense against Martin-Hagan’s claim, which was filed with the U.S. Equal Employment Opportunity Commission, that a number of issues relating to Martinez were revealed that ultimately led to his being put on paid administrative leave in October and then being cashiered in November.
In the seven months since Martinez has left, city officials have discovered the degree to which high ranking city staff members have been given nearly unfettered license to write their own tickets,  conferring upon themselves lavish salaries, benefits and perquisites, with only the vaguest of oversight or constraint by the city council, several members of which have themselves been beneficiaries of city managers’ and top staff members’ provision of favors and municipal services not routinely provided to members of the public.
With the object demonstration of how Martinez exploited his cozy relationship with members of the city council in the recent and mid-range past, both the city attorney and members of the city council have been feeling vulnerable. On Tuesday, June 18, the city council considered an item brought before it calling for amending the Redlands Municipal Code to give the city council far greater flexibility in dealing with the city manager in terms of hiring, termination, compensation and the provision of authority and perquisites. The changes were formulated and recommended by McHugh.
The city council had rushed to fire Martinez on November 6 of last year, which was election night. That hurry was necessitated by the previous city code prohibiting the city manager’s firing “during or within a period of thirty days next succeeding any general municipal election” in which a council member is elected. Had the council not acted that night, Martinez would have remained city manager, officially if not in actuality, at least until December 6.
By its action this week, the council voting unanimously did away with that restriction on its discretion. The council also dispensed with the city manager’s authority under the municipal code to hire department directors without council input and ratification. The council further attenuated the city manager’s purview with regard to authority, compensation, and the latitude for claims for expense reimbursement.
The changes do not absolutely prohibit the council or a future council from entrusting the city manager with the same level of authority that Martinez and his predecessors enjoyed, but it requires that such power be specified in the city manager’s contract rather than in the city code.
A review of the city manager’s authority had not taken place for some 15 years, which was some three years before Martinez’s hiring as city manager.
At present, Assistant City Manager Janice McConnell is serving in the role of acting city manager. The city council’s action this week ensures that when a full-fledged city manager is hired, his or her lines of authority will be clearly demarked.

With the fate of her predecessor in large measure hanging over her, Teri Ledoux was selected by the San Bernardino City Council to serve for the next year-and-a-half as city manager in the county seat.
Ledoux was offered, and apparently accepted, the 18-month contract which is effective July 1, without an explicit understanding as to her salary and benefit level, although it is understood that she will maintain at the least the $172,000 per year total compensation level she received as assistant city manager under recently departed City Manager Andrea Travis Miller.
Of note is that in August 2017,  Travis-Miller was hired as city manager pursuant to a five-year contract. That contract, however, involved a severance arrangement that permitted Travis-Miller’s immediate termination without notice and a severance package equal to one year’s compensation. Miller was only 16 months, or less than 27 percent, into the 60-month duration of the contract, when in December 2018 a move to remove her as city manager materialized. Though a consensus on the council to jettison her had not formed at that point, over the course of the next five months adequate votes on the council manifested to cashier Travis-Miller, and her removal was effectuated on May 29.
In the run-up to her forced departure, Travis-Miller sought to scorch the earth in the 220,000-population city by having key administrative personnel at City Hall serving under her exit with her, such as the department heads in the finance, public works and community development divisions along with Ledoux, leaving the city rudderless.
Ledoux’s departure with Travis-Miller was foreclosed, however, in no small measure by the offer that was made to have her to serve in the capacity of interim or acting city manager in what turned out to be the seven-week-and-six day gap between Travis-Miller’s April 3 suspension and her May 29 firing. Ledoux filled in for Travis-Miller during that time and remained in place after her mentor’s departure. There were reports extant that Travis-Miller, who had persuaded Ledoux to come to San Bernardino to serve as assistant city manager in October 2017 and was therefore thought to be able to rely upon LeDoux’s loyalty when the chips were down with the city council, had been somewhat cavalier and on occasion mildly verbally abusive in her treatment of Ledoux over the last year, thereby driving a gratuitous wedge between the two women.
Ledoux, 60, who has also been known professionally as Teri Baker, graduated from the University of Redlands with a bachelor of science degree in business administration and management and went on to get a master’s degree in public administration at Cal State San Bernardino. She has extensive previous experience in San Bernardino, where from 1995 until 2010, she was a lower-level assistant to the city manager. In 2010, she was promoted to the post of director of administrative services with the city. In July 2012, while she was yet on very good terms with Travis-Miller, as Travis-Miller was promoted from her position as a high level assistant to the city manager to the role of acting/interim city manager after Charles McNeely’s departure just prior to San Bernardino’s filing for Chapter 9 bankruptcy protection, Ledoux was promoted to become Travis-Miller’s top drawer assistant to the city manager. In March 2013, she departed to serve as assistant to the city manager in Huntington Beach, remaining there for two years and eight months. In November 2015, she transferred into a similarly-titled position with the City of La Verne, where she stayed for nearly two years before being brought back to San Bernardino by Travis-Miller.
The post of city manager in California municipalities generally carries with it the hazard of an accelerated rate of turnover in that the constant changeover in city councils per the electoral process can result in a city manager hired under the direction of a controlling majority of a city council falling into disfavor with a succeeding city council. San Bernardino over the last 22 years has cycled through city managers at a rate slightly faster than California cities on average, with ten city managers in that time frame, counting Travis-Miller twice for her separate tours in the position and including LeDoux, starting with Shauna Clark, who served as the elected city clerk before being hired as city manager; Fred Wilson, who stepped into the city manager’s post after serving as San Bernardino’s assistant administrator for seven years and went on to become city manager in Huntington Beach after leaving San Bernardino, where he hired Ledoux as one of his assistants; Mark Weinberg, the  city manager in Inglewood for more than three decades; Charles McNeely, who was the city manager in Reno, Nevada for 13 years before relocating to San Bernardino; Travis-Miller in her first go-round as the city’s top administrator, in an interim capacity; Allen Parker, who had been the municipal or city administrator or city manager in South El Monte, Compton, Seal Beach, Half Moon Bay, East Palo Alto, Oak Park, Illinois and Maywood, Illinois after working as an administrator with the City of Kanasas City, Missouri; Mark Scott, the one-time city manager of Beverly Hills, Culver City, Fresno and Burbank; and Travis-Miller in her most recent tenure.
The council and Ledoux are expected to meet in closed session on July 17 to discuss the yet-to-be-determined terms of Ledoux’s contract. The amount of money Ledoux will be willing to work for is of some moment in San Bernardino, as the city was forced to take refuge in Chapter 9 bankruptcy for nearly five years beginning in 2012 as a consequence of inflated salaries and benefits provided to city employees that left the city with a structural deficit, a $49 million budgetary shortfall and long term debt of over $400 million. In the four years and ten months between the time it entered into bankruptcy in August 2012 and its emergence in June 2017, the city stiffed a combination of some 209 creditors, vendors and partners for just over $350 million. Left largely unscathed by that devastation were the city’s employees, who continued to draw paychecks throughout the ordeal. They have seen no reductions in pay and their benefits remain intact, including the pensions they were promised by past mayors and city councils, though going forward the city’s employees are now being called upon to make a slight increase in their individual contributions toward their retirement benefits.
Two years after its official  exit from bankruptcy, the city is yet beset with a lack of fiscal discipline, as expenditures in the soon-to-conclude 2018-19 fiscal year are on a trajectory to eclipse revenues in the same period by more than $11 million. If current trends continue, that deficit will zoom to over $16 million by the end of upcoming 2019-20. The prospect of the city falling back into bankruptcy is a real one. In that eventuality, given the city’s demonstrated inability to come to terms with its overindulged and overpaid staff in the past and the unlikelihood that the city’s public employee unions will make the concessions needed to bring the city’s expenditures into balance with its revenues, disincorporation of the 150-year-old city, the county’s oldest, is a looming possibility.
Consequently, Mayor John Valdivia and his team are casting about for a way to impose on the entirety of city staff what in at least some other contexts might be considered drastic pay reductions in the neighborhood of 25 percent across the board. Earlier this month, the council used its authority to have elected City Attorney Gary Saenz, who is also a full-time city employee, take 45.8 percent cut in his total annual compensation; elected City Clerk Gigi Hanna, who is also a full-time city employee, take a 59.2 percent cut in her total annual compensation; and City Treasurer David Kennedy, who is what is deemed a part-time city employee, take a 90 percent pay cut.
It is the current San Bernrdino political establishment’s hope going toward the July 17 meeting that Ledoux will be content with receiving two-thirds the total annual compensation provided to Travis Miller. Miller was provided with $307,941.56 in total compensation on a yearly basis, consisting of her $262,542.50 annual salary and $45,399.06 in annual benefits.  Thus, it is surmised, the council will offer Ledoux $175,028.34 in annual salary, coupled with $30,770.61 in benefits. If Ledoux were to accept this level of compensation, it would leave her with the situational authority to ask the rest of the city’s work force to voluntarily take 25 percent pay cuts. If those employees do not comply with that request, Ledoux would then be armed with what the Valdivia team considers to be the “moral authority” to lay those employees off, and subsequently carry out a study to determine which of those positions can be permanently eliminated before doing so. Those remaining vacant positions deemed necessary for the continuation of municipal function and the provision of services would then be filled by contractual arrangements, by which young and qualified candidates, eager to obtain municipal experience or positions, would be hired at salaries or hourly rates at least 25 percent lower than is being provided to current city employees holding those positions.
Yet to be seen is whether Ledoux will be willing to carry out that assignment and whether she can accomplish it during the first 15 months of her 18 month contract, at which point four of the seven positions on the city council will be up for election in the November 2020 election.
–Mark Gutglueck