By Mark Gutglueck
The prosecution this week brought itself to the brink of embarking on the most daring ploy yet in the now eight week-long trial of Charles Merritt in the capital case relating to the brutal slaughter of the McStay family, preparing to enliven its foundering case with the introduction of evidence that did not exist when the trial began on January 7.
Prosecutors want to use words uttered by Merritt within the last month inside the jail where he is lodged to convince the jury that he was attempting to influence a potential witness, which they maintain is a strong indication of the defendant’s consciousness of guilt.
Prosecutors hope informing the jury that Merritt had sought to keep his now-estranged common law wife from making statements on the witness stand which incriminate him will provide their case with a much needed needed shot in the arm. Nevertheless, making use of that evidence carries with it dual risks that could redound to the prosecution’s detriment both within and beyond the context of the Merritt case.
Putting on evidence that the defendant was involved in an effort to manipulate testimony in his favor will open the door, one of Merritt’s defense attorneys suggested, to the introduction of evidence that the homicide investigators who assembled the array of material being used in the case against Merritt had likewise engaged in an effort to manufacture evidence and manipulate testimony, including intimidating the same witness prosecutors are on the verge of accusing Merritt of seeking to influence.
From the outset of the trial, the prosecution has conceded that the case against Merritt is a highly circumstantial one in which there is no single smoking gun or evidentiary linchpin that will conclusively establish his guilt. Nevertheless, the three-member prosecution team consisting of Supervising Deputy District Attorney Britt Imes, Supervising Deputy District Attorney Sean Daugherty and Deputy District Attorney Melissa Rodriguez insist that the jigsaw jumble of incriminating factors surrounding Merritt and the murders, once assembled and put into their proper perspective, form an overwhelming case which can lead to no other conceivable interpretation than that the defendant, acting out of greed and desperation, massacred Joseph McStay, his wife Summer and the couple’s two children, four-year-old Gianni and three-year-old Joseph, Jr. using a three-pound sledgehammer to bash their skulls in. For more than two weeks, beginning with opening arguments on January 7, the prosecution laid the foundation for its case by summoning to the witness stand Joseph McStay’s mother and brother, one of his closest friends, members of the San Diego County Sheriff’s Department who initially investigated the case in 2010 essentially as a matter involving a missing family, and members of the security detail at the mall in San Ysidro where the McStay family vehicle was found abandoned in a parking lot less than a half mile from the Mexican border four days after the family was last heard from.
Thereafter and ever since, the prosecution has sought to provide the jury with information relating to Merritt’s actions, whereabouts, behavior, proclivities and attitude, which woven together provide a tapestry of guilt.
A recurrent pattern throughout the trial has emerged. The prosecution has succeeded, with witness after witness, in presenting a plausible scenario implicating the defendant in one aspect or another of the theory that Joseph McStay had confronted him, quite likely on February 4, 2010, with regard to thefts involving checks forged on the bank account for McStay’s company, Earth Inspired Products, sending Merritt into a panic-driven frenzy in which he felt he had to kill Joseph to prevent him from reporting him to authorities. In virtually every instance, in the prosecution’s preview of that evidence and the context in which it is presented, a case that Merritt is the monster suggested in the charges against him, to one degree or another, began to emerge from the tangle of detail. But just as the prosecution would appear to be on the cusp of hitting its stride, cross examination by the defense has time and again betrayed the substance presented by the prosecution as selective or incomplete, subject to a far more benign interpretation.
Such was the case when the testimony of FBI Agent Kevin Boles resumed this week, after a half day of testimony before the jury on Thursday November 21 wherein it was established that he possesses an expertise in the use and interpretation of cell phone data for a variety of investigative applications, including the locating of missing persons and the tracking of fugitives. Picking up where Boles had left off, Imes on Monday guided the FBI agent in providing an explication of Merritt’s cell phone records, elements of which could be interpreted as suggesting though not quite proving Merritt was in Fallbrook the evening of February 4, 2010, the night prosecutors say the McStay family was slaughtered in their home on Avocado Vista Lane there, and that he was in the environs of Victorville/Oro Grande in the High Desert two days later, on February 6, 2010, the day the prosecution maintains the defendant was burying the bodies in shallow graves in a remote area off of Stoddard Wells Road west of the I-15 Freeway.
With Boles, Imes reiterated a crucial element of the testimony previously provided by David Lipnitzky a compliance analyst and records custodian for AT&T, relating to how on February 4, 2010 between 4:09 p.m. and 9:04 p.m Merritt’s phone was off-line or turned off, with incoming calls to him at 4:09 p.m., 6:10 p.m., 6:12 p.m., 6:17 p.m., 7:18 p.m. and at 9:04 p.m. having been immediately routed to voice mail because there was no cell tower link-up to the phone.
That is a strong indicator, the prosecutors maintain, that Merritt, who they say was aware that his movements could be tracked through his cell phone, purposefully shut off his cell phone prior to sojourning to the McStay home when he killed all four members of the family.
Similarly, Boles testified that the AT&T records from Merritt’s cell phone show that between 3:14 p.m. on February 6, 2010 and February 7, 2010 at 10:35 a.m., there were no phone calls passed through to his phone, even though there were calls made to it, and that those calls went immediately to voice mail because there was no cell tower link to the phone.
This again supports the prosecution theory in the case, which holds that Merritt was engaged in disposing of the bodies in the desert area between north Victorville and south Oro Grande on February 6, 2010, and that he powered his cell phone down so his whereabouts could not be determined.
Boles was of further assistance to the prosecution in suggesting that earlier on that day, Merritt had gone out to what was to become the gravesite without the bodies, most likely in a vehicle different from the one that he later that evening used to transport the bodies to the site, where from late in the morning until early in afternoon he dug the graves.
Imes questioned Boles on Monday of this week to show that the defendant’s cell phone on eight separate occasions in the February 6, 2010 late morning/early afternoon timeframe was in contact with a cell phone tower north of Victorville near Oro Grande. That cell phone tower, perched at an altitude of 4,522 feet and equipped with separate antenna oriented northward, eastward and southward, stands 1.97 miles distant from the two adjacent graves at an altitude of 3,021 feet in the desert area north of Victorville where the bodies of the McStay family were crudely interred for more than three-and-a-half years until they were discovered in November 2013 after animals had disturbed the remains. According to the prosecution, a day-and-a-half to two days after the murders, Merritt transported the corpses to that burial site.
According to Boles, on February 6, 2010 at 11:30 a.m., 11:31 a.m., 11:32 a.m., 11:33 a.m., 11:34 a.m., 11:52 a.m., 11:53 a.m. and 1:30 p.m., Merritt’s cell phone was in contact with that cell phone tower.
Also testifying twice later this week was San Bernardino County Sheriff’s Department Sergeant Ryan Smith, who as the case officer on the McStay family murder case has already testified numerous times. Smith testified that he had obtained from the National Oceanic and Atmospheric Administration’s website the record for rainfall in the Victorville area on February 6, 2010, showing that there had been 1.10 inches of precipitation there that day. Previous testimony of others in weeks gone by was that there were separate tire tracks leading to the graves, one from a vehicle with a 73 inch wheelbase and one with a 76 inch wheelbase. Smith had previously testified that his measurement of the wheelbase of the work truck that Merritt drove in 2010 had a wheelbase of 73 inches.
Marrying Boles’ testimony to that of Smith, the suggestion was that Merritt had been at the gravesite north of Victorville for at least two hours and perhaps somewhat longer than that, enough time for him to have dug the two 18-inch deep and roughly six-foot long and two-foot wide graves into which the McStay family corpses were buried. Because the rain had saturated the ground that day, the prosecution avers, the tell-tale impressions of the truck’s tires were left as mute testimony to Merritt’s perfidy.
Boles testified that in his survey of Merritt’s phone records throughout 2009 and 2010, he found that Merritt’s cell phone had connected with that cell phone tower on only one other occasion, that being on July 12, 2009.
When Boles was subjected to cross examination by one of Merritt’s defense attorneys, James McGee, however, Merritt’s cell phone records were shown to be far less damning than had been suggested by the answers Imes had elicited from Boles with his narrowly focused questions.
Overall, McGee’s questions to Boles delved into several areas, at least three of which were key. One set of questions related to the continuity of the connection between Merritt’s cell phone and the tower. A second set related to the orientation of the directional line between the cell phone and the towers the cell phone connected to, referred to by the term azimuth. A third round of inquiry related to the altitude of the tower and the relative heights of other cell phone towers in the area, and the associated unhindered and clear line of sight between higher-placed cell towers and cell phone devices which provides for more reliable connectivity than will often take place between cell towers at lower heights and cellular devices. McGee queried with regard to the 11:30 a.m. call. Boles said that call was an incoming one from an 800 number that terminated abruptly.
To McGee’s question about the 11:31 a.m. call, Boles said it was outgoing from Merritt’s phone to 909 226-1197, the cell phone number of Catherine Jarvis, who was then his common law wife and the mother of three of his children. The call had what Boles called a “seizure time” of 26 seconds and a three second duration after the phones connected. The term seizure refers to the time entailing the cell phone making contact with a tower and the ensuing ring time on the device being called which lasts until the call is either answered or passed through to voice mail.
The cell tower in question, which was referred to as the Oro Grande tower, had two 120 degree swaths of coverage. One of those swaths, associated with antenna 11091, extends in what is essentially a northward direction, and another, associated with antenna 11095, covers an area generally to the east.
The 11:31 call originated with the antenna providing the swath of coverage emanating east from the tower, but ended within the swath of coverage pointing northward.
The gravesite was at an elevation of 3,021 feet, at a location southeast from the tower, within the eastward swath.
“Does the change in the antenna used show possible movement?” McGee asked Boles.
“Objection. Calls for speculation,” said Imes.
Overruled,” said Judge Smith. “He can answer. “
“It could go either way,” said Boles “It could show movement or it could be a re-selection by the network.”
“It’s reasonable to say it’s stationary, and it’s reasonable to say it’s movement?” asked McGee
“Yes, I think they both would apply in this situation,” Boles said.
At 11:32 a.m. another outgoing call was made to 909 374-8951. It had a ten-second seizure time and lasted for two seconds thereafter.
“And what tower was the initiating call?” asked McGee.
“The tower to the north,” said Boles.
“Is it consistent then that the phone at the time of usage is likely to be…
“Objection,” Imes interrupted. “Misstates the testimony as to the accuracy.”
“…north of the latitude of the tower?”
“Overruled,” said Judge Smith.
“Yes,” said Boles. “The phone would need to be in the coverage of that particular sector.”
Merritt’s older sister, Juanita, lived in Oro Grande, which is north of the tower in question.
Merritt’s phone records next indicated an outgoing call at 11:33 a.m., again to 909 374-8951. The phone rang for 27 seconds and lasted four seconds thereafter, according to Boles.
“Was there a beginning azimuth?” asked McGee.
“There was,” responded boles.
“Which one was that?” asked McGee
“It’s the antenna pointing at 85 degrees to the east,” Boles said,
“So, that’s on the same tower, 11095?” asked McGee.
“Yes, sir,” said Boles.
“And was there an ending sector?” asked McGee.
“Yes,” said Boles.
“And which one was that?” asked McGee.
“11091, pointing at 10 degrees [i.e., northward],” said Boles.
“So these calls are, kind of, bouncing between the two sectors of that tower,” said McGee.
“Yes,” said Boles.
“Both the initiating and terminating part of the call?” asked McGee.
“Yes,” said Boles.
The next call, at 11:34 a.m., was outgoing from Merritt’s cell phone to 909 226-1197, again to his common law wife at the time, Cathy Jarvis. That call had a ring time of 26 seconds, and lasted just two seconds.
“And this call, the 11:34, what is the initiating tower sector?” McGee asked.
“11095, the 85-degree [east] sector,” said Boles.
“And then what is the terminating tower sector?” McGee asked.
“11091, which is the 10-degree [i.e., north] sector,” said Boles.
“So it consistently keeps bouncing between the two, correct?” asked McGee.
“Correct. I believe the last four calls or so, approximately,” said Boles.
McGee then angled to determine if Boles considered it reasonable to conclude that Merritt’s cell phone was in an overlap area between the two sectors – the one pointing primarily north and the one pointing primarily east – of the tower.
Imes, again betraying the degree to which he did not want the jury to consider that possibility, protested. “Objection,” he said. “That calls for speculation based on his testimony.”
“Overruled, said Judge Smith. “He can answer, if he has an opinion.”
“Yes, it’s a possibility that that phone existed in the area where there’s coverage from both sectors,” said Boles.
“It’s reasonable,” said McGee. “It’s not certain, though, right?”
“It’s not certain, but it’s reasonable,” said Boles.
“Is it fair to say you cannot say, with any certainty, where the phone was?” asked McGee.
“Not with this type of analysis,” said Boles.
At 11:52 a.m. another call to Jarvis’s number was initiated from Merritt’s cell phone. It had a signal acquisition and ring time of 26 seconds.
“And the length of the call?” McGee inquired.
“The total capture time would be 35 seconds,” said Boles.
“But the length of the talking time is 9 seconds?” McGee asked.
“Oh, yes, sir,” said Boles.
“So the starting or initiating cell tower sector is 11095?” McGee asked.
“Yes, sir,” said Boles.
“And the terminating cell tower sector is on a different tower?” McGee continued.
“Yes, sir,” said Boles.
“And this tower is located where?” McGee asked. “Can you point to it on the map and give a general description of where it is relative to any known landmarks?”
“Down on the bottom of the map, left of center, it’s marked with a bubble that says, ‘End cell 03483,’ and its pointing to sector three just above the words, Mountain View Acres, on the map,” Boles said.
“And is that at the 15 Freeway and Palmdale Road?”McGee asked.
“Yeah, that appears to be where the cell tower is located,” said Boles.
“And that would be just south of the Victorville Courthouse?” asked McGee.
When Boles indicated he was not familiar with the location of the courthouse in Victorville, an exchange ensued that essentially established the cell tower was somewhere in the vicinity of downtown Victorville.
“Would the total call time of the 35 seconds, and the change from towers from the beginning, or initiation of the call to the termination of the call, would it be reasonable to conclude that the cell phone was likely moving?” asked McGee.
“Objection, calls for speculation,” Imes challenged.
“Overruled,” said Judge Smith.
“I mean, based on the end cell being at a distance, it’s likely that phone moved, at least enough to where there was coverage from that secondary tower,” Boles said.
“And the initiating tower, the one on top of the hill, that’s likely the strongest tower in Victorville,” McGee said.
“Objection,” said Imes. “That’s vague and calls for speculation.”
“Overruled,” said Judge Smith. He can answer, if he has an opinion.”
“I could articulate it’s likely the tallest tower in Victorville,” said Boles. “Whether it’s the strongest tower in Victorville would depend on where you are in proximity to that tower.”
“Do you have an estimate as to the distance between those two cell towers?” McGee asked.
“I don’t see a scale on the map, but going with my memory, I believe it’s about six miles to eight miles, something in that range,” said Boles.
Merritt’s cell phone records next indicated a call at 11:53 a.m., outgoing, once more to Jarvis’s 909 374-8951 number, with a seizure time of 26 seconds and talk time of 10 seconds.
“And the initiating tower is… the same tower that the last call ended on?” McGee asked.
“I believe so,” said Boles. “Let me verify that. Yes, sir,”
“Is it the same sector, as well?” asked McGee.
“Yes, sir,” said Boles.
“If… the next call is within a minute, and it initiates at the same sector, same tower, does that offer anything to your analysis about the use of the same sector, same tower, between termination and starting?” asked McGee.
“The fact that a call originated from that tower is stronger to my analysis than the fact that one ended there, but if they are in sequence like that, there’s, you know, the phone needs to be in the coverage area of that particular sector,” Boles said.
“Is is fair to say or is it reasonable to say that the 11:53 call, being the initiating tower at the sector shown on this exhibit, that the phone is like in close proximity to that tower?” McGee inquired.
“I could say the phone is going to be in the coverage area of that tower,” said Boles
“Fair enough,” said McGee. “And the terminating tower is where?”
“It says ‘End cell 15403,” said Boles.
“And did you research the location of this tower?” McGee asked.
“I did,” said Boles.
“And what can you tell the jury about the terminating cell tower?” McGee asked.
“It’s an elevated tower up on, I guess, a hillside or the side of a mountain,” said Boles. “I believe, if my memory serves correct, it was at about 2,700-feet elevation, where the valley floor, the desert floor is, approximately 1,700. I don’t recall the exact number offhand, but I know it was elevated up a hill approximately 1,000 feet.”
“Good enough, said McGee. “So it’s an elevated coverage tower?”
“Yes, it’s similar to the Oro Grande tower,” said Boles.
“But the location is on the other side of Hesperia and Apple Valley.” McGee said.
“Yes,” said Boles.
“Approximately, how far away would that tower be from the initiating tower?” asked McGee.
“I would say approximately 10 miles,” said Boles.
Merritt’s cell phone records next show an outgoing call at 12:49 p.m. to Jarvis’s number with an eight second signal acquisition and ring time followed by a call time of three minutes and 45 seconds.
“And the initiating tower is where?” asked McGee.
“It’s in the Victorville area,” said Boles, “the ending cell, labeled 03481, in the kind of southeast direction.”
“And would it be a reasonable conclusion that the cell phone, during this usage, is somewhere in the Victorville city area?” McGee asked.
“Yes that’s a reasonable conclusion,” said Boles
The last call showing a tower connection reflected in Merritt’s cell phone records on the afternoon of February 6, 2010 deemed incriminating by the prosecution is one that occurred at 1:30 p.m., an outgoing call to Jarvis, with a nine second acquisition and ring time and 44 seconds of talk time.
“And the initiating tower is where?
“It’s the tower to the north on top of the Oro Grande Hills,” responded Boles.
“And what sector?” McGee asked.
“…and its pointing in a sector at 170 degrees pointing south “
“And the terminating tower and sector is where?” asked McGee
‘It’s a tower adjacent to the Interstate 15, pointing almost due north, maybe due north.”
“And that the tower is on the most southern portion of the Victorville city area?” asked McGee
“Objection, assumes fact not in evidence,” protested Imes.
“Overruled,” said Judge Smith.
“It’s toward the bottom of the map,” offered Boles. “I am not sure where the city boundaries are.”
McCoy asked Boles, “Did any of the sheriff’s detectives that you spoke to, whether it was Detective [Daniel] Hanke or any others that you spoke to, did any of them ever ask you if they could, if you could say that this cell phone was at the grave site?”
“I don’t recall if they asked me that specific question, but I would have not answered it to say ‘Yes.’” said Boles. “I would have said that the data doesn’t allow that kind of precision.”
In further effort to illustrated to the jury that a cell phone will connect with a relatively distant tower despite there being a multiplicity of closer cell towers, McGee questioned Boles about a series of calls made in a closely spaced span of time on February 10, 2010 that were documented in Merritt’s cell phone records. Boles confirmed that on February 10 a call had been placed from Merritt’s cell phone at 12:37 p.m. that connected with a cell phone tower near Merritt’s then-home in Rancho Cucamonga in a direction northeast of his home, an indication Merritt was placing the call from his home or from very near it. One minute later, at 12:38 p.m. Merritt’s phone was in connection with a cell phone on high ground overlooking Lake Mathews in Riverside County, a point some 19 miles distant from his home as the crow flies. Between Merritt’s home and the tower near Lake Mathews were more than a dozen intervening towers. Such distant connections between a cell phone and a distant tower are referred to as “flyers,” Boles said, adding “It is obvious” Merrit’s phone “chose a tower that is farther away.” Proximity is not always a factor in what cell phone tower a cell phone will hook up with, he said.
In seeking to ensure that the jury did not miss the import of the issue, McGee referenced Joseph McStay’s cell phone records pertaining to February 3, 2010 where the progression of cell phone contacts are consistent with his travel northward on the I-15. At a point beyond the Temecula area his cell phone bypassed several towers lying closer to the freeway to reach a cell tower farther away. When McGee inquired about that, seeking an explanation, Boles noted that particular tower was “significantly higher” than the bypassed towers.
McGee then asked it the “raised altitude” of the tower accounted for what had occurred.
“That is definitely an explanation as to why that phone would select that tower rather than the adjacent one,” said Boles.
That extended portion of McGee’s cross examination of Boles was intended to infuse in the jurors a recognition that Merritt’s cell phone contact with the 4,522 foot elevation Oro Grande cell tower 1.97 miles distant from the gravesite did not definitively place him at the gravesite.
McGee also sought to allay the incriminating implication suggested by the prosecution relating to the extended time period on February 4, 2010 and again on February 6 extending into the morning of February 7, 2010, in which Merritt’s cell phone records show that all calls to his phone were immediately routed to voice mail, with no cell phone tower connection data present on the records relating to those incoming calls. This is an indication, according to the prosecution, that Merritt had deliberately powered his phone off at that critical time to thwart any subsequent efforts to track his movements while he was engaged in killing and then burying the McStay family.
McGee utilized more than two dozen examples taken from Merritt’s cell phone records, pertaining exclusively to January 2010, showing occasions when, either right before or right after Merritt had made a call or received one in which his phone had made a successful connection to a cell tower, a call to his number had gone to voicemail without making a connection to a tower. The records for each of those missed calls showed no cell tower data recorded for those calls, McGee had Boles note, even though the records reflecting calls taken or placed either within a minute or minutes before or after each of those calls as well as while he was yet engaged in a call indicated the phone was powered and running at that time. Those included calls on January 5, January 5, January 6, January 6, January 6, January 11, January 12, January 14, January 15, January 16, January 18, January 22, January 23, January 25, January 25, January 25, January 26, January 26, January 28, January 29 and January 31. McGee stated there were dozens of further examples in Merritt’s phone records showing no cell tower data recorded for an incoming call attempt to his phone while surrounding calls either to or from his device indicated it was powered on.
In this way, McGee forced FBI Agent Boles to acknowledge as questionable the conclusion that the phone calls made to Merritt’s phone on February 4 and February 6 showing no cell tower connection indicated that Merritt’s phone was powered off. There were other reasonable interpretations as to why those calls were immediately routed to Merritt’s voicemail, Boles said. This undercut the prosecution’s contention that Merritt had purposefully sought to shield from future scrutiny his movements on the days in question.
Beyond the show of cell phone data to demonstrate Merritt was present in Victor Valley on February 6 together with tire tracks left at the gravesite which quite possibly could have been impressed into the soggy desert floor on that rainy day, the prosecution has yet to introduce any definitive proof that the bodies were placed into the graves that day. To counter an anticipated assertion by the defense that Merritt was in that area to visit his sister, who at that time lived in Oro Grande, or his brother, who resided in Hesperia, the prosecution put his sister, Juanita Merritt, on the witness stand.
When Juanita Merritt was interviewed by Sergeant Ryan Smith in 2014, she gave indication Merritt had not been at her place of residence in Oro Grande in the 2010 timeframe and that she had little contact with her brother over what was then the previous five years. It was with the expectation that she would repeat that statement that Juanita Merritt was questioned by Deputy District Attorney Melissa Rodriguez.
Juanita Merritt, however, did not live up to Rodriguez’s expectation. She confirmed that in 2010 she lived off of National Trails Highway in Oro Grande. Asked, “How often do you think you would have seen your brother?” she responded, “I saw him quite often,” saying those meetings sometimes occurred “at my house. Sometimes I went down to his house,” which she at first remembered as perhaps being “off Arrowhead in close to Pasadena,” which she associated with the 210 Freeway, but then, at Rodriguez’s prompting, recalled being in Rancho Cucamonga. “I do remember going to Rancho Cucamonga,” she said.
She said that she had suffered strokes and embolisms or similar medical crises and nine operations since 2001 and “I could hardly walk.” She said that Charles Merritt “came to stay with me at one point to help me because I had another surgery. He bought me a motor home so I wouldn’t have to go up the steps” to her house.
Rodriguez sought to usher her toward a narrative more in keeping with the prosecution’s version of events, alighting on the McStay family’s disappearance and her previous statement to Smith that she had heard about the search for the family through news accounts rather than from her brother. Rodriguez asked her if she had told Smith “You had to actually track down your brother” to speak with him about the family having vanished.
Juanita acknowledged “I learned it [the family having gone missing] on the news,” saying she knew her brother worked with Joseph McStay and that she herself at one time “was in a conversation about selling waterfalls with him.” She said that after hearing about the McStays disappearance she “reached out” to her brother.
Rodriguez gave Juanita Merritt Smith’s report on his 2014 interview with her, asking her if that refreshed her recollection of what she had said. Juanita Merritt said it did not, indicating that her statement to Smith at the time would have been unreliable, as she had only shortly before that undergone surgery and was then using narcotics to attenuate the pain she was experiencing. “I wasn’t in my right mind when I talked to your detective,” she said. “I could hardly talk when he was at my house. I had surgery in 2013 and an embolism in my lungs. I had just recently come home.”
With regard to her statement at the time that she could only remember meeting her brother at a Coco’s restaurant, Juanita said, “I remember driving to a Coco’s, but that’s not the only time I saw my brother.”
After Juanita Merritt was dismissed as a witness, Rodriguez sought to redress any misimpressions she might have left with the jury by recalling Sergeant Smith to the stand. Smith testified that when he spoke with Juanita Merritt in 2014 she had been “cogent” and her memory seemed unimpaired.
Testifying twice this week was the case officer on the McStay family murder prior to Smith taking on that assignment, then-Detective and now Sergeant Edward Bachman, who has testified previously during the trial.
In the first of his go-rounds with the lawyers before the jury this week, Bachman testified that he had served a search warrant on Merritt’s one-time premises on December 12, 2014, after Merritt’s arrest on murder charges, at which point he seized Merritt’s iPhone 6. On that iPhone 6, Bachman testified, was an indication that Merritt had used the device to conduct, on October 23, 2014, an internet search with regard to what was required to obtain a search warrant. There sere also searches, Bachman testified, relating to Alaska, traveling to Alaska without going through Canada, the Canadian border, gold claims for sale, Chicken River gold claims, gold claims in California and gold claims in other states. Bachman also established that Merritt had a passport. Bachman said that the use of a passport would allow authorities to determine if a person has left or entered the United States.
Merritt’s defense co-counsel, Raj Maline, cross examined Bachman, getting Bachman to acknowledge that in October 2014 Merritt was working for a mining equipment company which manufactured and sold gold excavation equipment. Maline established that the Chicken River is located in Alaska.
Bachman was followed to the stand by Sergeant Smith, who testified that the searches with regard to reaching Alaska without going through Canada was significant to hm because a U.S. citizen’s use of a passport to travel would allow his comings and goings and possible whereabouts to be tracked.
While on the stand, Smith also testified that on October 22, 2014, prior to Merritt’s arrest on the murder charges, a search warrant had been served upon Merritt’s residence, during which the cell phone he had at that time was seized. That greatly reduced the suggestion contained in Bachman’s immediately previous testimony that there was something suspicious or incriminatory about Merritt’s October 23 search, on his iPhone 6, about the requirements for getting a search warrant.
Bachman’s second appearance on the witness stand this week came, yesterday Thursday afternoon, February 28.
Bachman was called to certify as authentic five snippets of a nearly eight hour long interrogation of Merritt he and then-Detective Daniel Hanke conducted in October 2014.
In that interview, both Bachman and Hanke made multiple assertions and representations which were less than factually correct in an effort to bluff Merritt into making a confession to killing the McStay family and burying their bodies in the desert.
Prior to the video and audio passages of the interrogation being played in open court, Judge Michael A. Smith admonished the jurors that they should not impute to the investigators’ assertions contained on the video the status of truth, proof or even evidence contained in the investigators’ statements and questions heard on the video, but rather use the video to gauge Merritt’s responses, which they were to alone consider as evidence.
“When law enforcement interviews a potential witness, the investigators sometimes say things thy know are not true to see what their reaction is,” said Judge Smith. The judge said of the material contained in the video, “The only thing that is evidence, what is relevant, is Mr. Merritt’s response to that.”
The five passages from the video played in court lasted roughly fifteen minutes total. The first of the passages began in a somewhat low key manner as Bachman asks about Merritt being in the High Desert on February 6, 2010.
The intensity of the investigative process rapidly escalates, as Merritt, who for the most part maintains his equanimity in the face of the investigators implying that he is lying and their suggestions, bordering on demands, that he change his story.
Relatively early on, Bachman asserts that Merritt should know exactly where he was on a day more than four-and-a-half years in the past.
Merritt says that he has no recollection of being in the High Desert in February 2010. Bachman informs him that his cell phone records place him there on that date, and asks him “Where did you go February 6?”
“I don’t know,” Merrit responds. “I have no idea,” then saying that the “only reason” he can think of is that he may have been “either to my older brother’s or my older sister’s. One is in Hesperia. One’s in Oro Grande.”
When Merritt does not acknowledge being in the north Victorville area, “Bachman intones, “Chase, you know where you’re at.”
When Merritt again asserts that the only places in the High Desert he might have gone to were Oro Grande or Hesperia, Bachman intensifies the pressure, speaking to Merritt almost as if he is an recalcitrant child who is holding out.
“Where is the key area in the High Desert…” Bachman attempts to lead Merritt. “Where Joseph is buried… Stoddard Wells Road.” Bachman then attempts a bluff. “Why would your phone show you at the grave site?”
Over the previous days, the jury had learned from FBI Agent Boles that the cell phone records could not provide the type of precise positioning data Bachman was claiming they did.
When Merritt responded that “It’s not possible” the records reflected he was at the gravesite, Bachman lied, “They do.”
Merritt responded, “They couldn’t.”
Firmly, Merritt insists to the investigators that he had never been to the gravesite until some weeks after the bodies were discovered. He then told Bachman that “I don’t see how they [the phone records] could [place him at the gravesite],” indicating that if the investigators were to carry out a competent analysis of the data, “You will find it is impossible that I was there.” To Bachman’s assertion that technical experts the department had access to said the data suggested otherwise, Merritt responds, “Then they need to look again, because I wasn’t there,” asserting again that if he was in the High Desert at all he was “in Oro Grande with my sister I was semi-taking care of, or at my brother’s.”
When Bachman again asserted that the phone records put him at the gravesite, Merritt again states, “I know I wasn’t at the gravesite.”
With Bachman angling to wear the subject down, “Hanke joined in, and both detectives ganged up on Merritt in an effort to psychologically crush him, offering no respite in the onslaught. Hanke stated that there were too many factors linking Merritt to the murders for him not to have been involved. “Sounds like a crazy coincidence…” said Hanke …that the person who murdered them on the 4th, buried them on the 6th, your phone shows you in the area, you’re the last person to see Joseph, your truck has the exact same vehicle tracks as the one driving up into the desert…”
Merritt lashes back, saying that the tracks to grave are “exactly like a lot of trucks’ tire tracks… My phone does not show in that area because I wasn’t there.”
When Merritt is told that the truck track evidence is “another piece to this puzzle,” he retorts that the detectives are “throwing things at me like they are facts,” at that point confronting the detectives with the lies they are telling him.
Bachman then doubled down on the lies he had been using in his attempt to bluff Merritt, claiming that “GPS coordinates” place him at the gravesite while he is making “a series of calls to different people. You were out there at the gravesites. Why does your phone show that?”
“I have no clue,” Merritt said.
When Bachman told Merritt that they want help in understanding how all of that came about, “Merritt responded, “I can’t help you understand something I don’t understand myself.”
At no point during the portions of the video played does Merritt come close to acceding to the suggestions that he was involved in the murder.
Maline cross examined Bachman after the excepts from the video of the interrogation was played.
Coming as it did after the jury heard Merritt steadfastly maintain throughout the interrogation that he was not present at the gravesite together with the previous testimony from Boles that the AT&T tracking data for Merritt’s phone did not provide precise GPS [global positioning system] data but only generalized information to indicate a phone was within an area of potentially up to scores of square miles surrounding a particular cell tower, it was readily apparent that Bachman had been outright lying to Merritt when he said his cell phone data placed him at the gravesite on February 4, 2010.
At first Bachman seemed to concede as much when Maline asked him, “Is it fair to say you used investigative techniques” during the interview and the sergeant responded, “Some of them, yes.”
But Bachman complicated things for himself and the prosecution when in further questions by Maline, he demonstrated he was unable to determine where his attempt to bluff Merritt left off and where what his truthful recitation to the jury of the limits of cell phone data with regard to fixing the location of phones during their use began.
Maline asked, “Is it your understanding the call record gives location data of the cell phone?”
“I believe so, sir,” said Bachman.
To Maline’s further questioning, Bachman indicated the records provided a GPS plotting of the cellphones location.
“Who told you there were GPS coordinates?” Maline asked.
In responding, Bachman came either woefully close to perjuring himself or betrayed a complete misunderstanding and misconstruction of the limitations of the data available in the cell phone records that were available from AT&T in 2010. “My understanding was there were GPS coordinates in the call records,” he said.
The previous day, Wednesday February 27, when the wife of one of the jurors had a medical emergency, the jury was sent home and Judge Smith, the prosecution and the defense took the opportunity to hash out a dispute over evidence the prosecution wants to present relating to statements recorded at the West Valley Detention Facility, where Merritt is housed, during visits he had with his estranged common law wife less than a month ago.
The defense filed a motion on February 26 to exclude as evidence jail conversations the defendant had with friends and family members that were recorded while he was in custody. The prosecution filed a response on February 27.
McGee stated that Sergeant Smith had been listening to Merritt’s jailhouse phone calls and conversations and providing information gleaned from them to the district attorney’s office, a violation of Evidence Code 1054.1 which requires the prosecution to immediately turn over all statements of the defendant in its possession, not just those the prosecution wants to use at trial.
Sergeant Smith was put on the witness stand, where under questioning by McGee he acknowledged that as the case agent overseeing the McStay family murder investigation and as the trial liaison between sheriff’s department and district attorney’s office, “I was the one listening to phone calls and visits” involving Merritt. Smith said all inmate phone calls and conversations with visitors are recorded. In the case of inmates charged with serious offenses, those calls and conversations are monitored, he said.
Because Merritt was seeking to evade the jail’s existing recording system, Smith testified, he had placed a recording device in the booth at the West Valley Detention Center where conversations between Merritt and his visitors took place. Normally, an inmate and visitor use a phone-set to communicate in the booth, which contains a heavy plexiglass partition.
“So, the recording wasn’t through the phone, but through a device that was placed there by the sheriff’s department?” asked McGee.
Smith described the device as “A digital recorder placed there there by me.”
“And did you inform the district attorney that you were placing the recorders there?” asked McGee.
“No, sir,” said Smith.
‘Did you inform them that you had those recordings?” McGee asked.
I turned those recordings over after they were conducted, yes, sir,” said Smith.
“Why did you feel it was necessary to put a manual recording device inside the booth?” asked McGee.
“Because Mr. Merritt wasn’t using the appropriate way of conducting visits and I believed he was talking about pertinent information relevant to the case,” said Smith.
“So you wanted to hear the conversations he was trying to keep secret?” asked McGee.
“Yes,” said Sergeant Smith. “I believed his conversations provided important evidence.”
Supervising Deputy District Attorney Britt Imes asked Smith, “’How was Mr. Merritt attempting to avoid using the normally recorded visit system?” Imes asked.
“He would speak loudly through the glass,” said Smith.
Smith said that a total of 13 digital recordings of conversations Merritt had with his visitors were recorded, nine of which were done by the jail’s standard in-place system. Smith said four of the recordings, ones made on February 1, 3, 8 and 11, were provided to the district attorney’s office, the first two on February 4 and the third and fourth on February 12. Smith said he took the extraordinary step of bypassing the normal recording system because he believed Merritt was seeking to dissuade a witness. He said he believed Catherine Jarvis, Merritt’s ex-wife and a potential witness in the trial, was intentionally circumventing the jail recording system by not using the phone.
McGee said the prosecution was bound by law to turn over all such recordings 30 days before trial, and any recordings after that date must be provided to the defense immediately.
McGee alleged the prosecution had delayed in turning the audio recordings over to the defense “for tactical reasons. That was done to let Mr. Merritt continue to discuss matters about the case, discuss matters of the defense strategy. They had a listening device into the thoughts and process of the defense through this trial covering the ways we will address witnesses, the way we will address evidence. They had all this information and they weren’t letting us know they had it. That’s bad faith. They did all of this when they should have disclosed it immediately so we could remedy the situation and tell our client, as we told him many a time, ‘Stop talking about the case. Let us do our job.’ By now the district attorney’s office has a full idea of what we were doing with witnesses during this trial so they can plan accordingly and act upon it by continued recording.”
Imes said that his colleague, Supervising Deputy District Attorney Sean Daugherty, had put McGee on notice in December that Merritt’s conversations were being monitored.
“There is no evidence before the court that any exculpatory evidence has been withheld,” said Imes. “In fact, what we’re talking about is now incriminatory, where it clearly shows the defendant in an attempt to engage in witness tampering to sway the testimony of one or more witnesses. As for any expectation of privacy, case law is very clear that inmates within a jail setting have limited-to-no-expectation of privacy. They are on notice of the recordings of both the jail calls and the jail visits.”
Merritt, Imes said, “is attempting to pervert justice by swaying the testimony of a material witness that either the defense or even the prosecution had the ability to call with relative material to that.”
McGee said, “We take exception to the statement that there was witness tampering going on. I think the proper term is ‘We may allege there was witness tampering.’”
Judge Smith, after hearing from the lawyers, said, “Case law in California is there is not a reasonable expectation of privacy in a jail facility. Defendants do not have a realistic expectation of privacy with regard to phone calls, jail visits and so forth. I don’t think there is anything improper in the recording of jail visits where it is done over the phone system where inmates and visitors talk or if they’re somehow otherwise recorded as part of the jail system or an additional recording device that’s placed there for that purpose. I don’t think there’s a violation in the recording of the information.”
Judge Smith continued, “I would agree that discovery of that is required. The court finds discovery was provided in a timely basis. The recordings from the 1st through 3rd were turned over on the 4th; the recordings on the 8th to 11th were turned over to the DA on the 12th and to the defense on 13th. The court finds that was timely provided to the defense.”
Judge Smith then turned to the substance of what is on the recordings.
“The People in their motion indicate there’s two areas they want to go into,” said Judge Smith. “One relates to a visit on February 3 between Mr. Merritt and Catherine Jarvis in which there is a discussion about a waterfall project and not getting paid and telling her to remember that he and Joseph were going to split the loss if they didn’t get paid. At least from the excerpt, I don’t really see the relevance to discussion about the waterfall and not getting paid.”
At that point, Supervising Deputy District Attorney Sean Daugherty asserted, “The relevance would in particular be Mr. Merritt is urging her after she remembers only a little of it, to re-remember, to remember more. ‘You are going to be asked this specifically.’ That from our position is clearly an attempt to fabricate evidence. He is talking to someone he knows or he actually believes is going to be on the [witness] stand, telling her what to say when she is asked on background that she doesn’t necessarily remember. Clearly the defendant does think it’s relevant. What matters is the defendant clearly attempting to materially alter someone’s testimony.”
But what is sauce for the goose becomes gravy for the gander, McGee said, propounding that what Merritt was doing was making an effort to prevent Jarvis from folding under efforts by the sheriff’s department and the prosecution to dissuade her from providing truthful testimony in his favor.
“We have evidence of the police [i.e., the sheriff’s department] doing the same thing,” said McGee. “We can go down that road and spend two months doing that.”
Of note is that already in evidence during the trial is a February 1, 2010 email from Joseph McStay to Merritt telling him that Merritt still owed him money over a specific waterfall that had been or was being built for the Provençal restaurant in Los Angeles.
Daugherty continued, “The defendant attempting to tell her what to say about that particular waterfall is relevant. Our position is he was in deep debt to Mr. McStay and him saying ‘When you get on the stand you’re going to be asked specifically “Do you know this?” The answer is “Yes”’ is relevant.”
Smith said his ruling was that the matter did not hold “enough relevance to be put on in the prosecution’s case-in-chief, but could come in if she [Jarvis] is called to testify.”
Smith then turned to the recording of the February 3, 2019 jailhouse conversation between Merritt and and Jarvis in which Merritt can be heard talking about cell phone reception in the house where they lived, particularly with regard to the dates of February 4 and February 8, 2010. Underlying the issue is the prosecution’s contention that Merritt’s failure to answer his phone on February 4 buttresses the theory that he had shut his phone off while he was engaged in killing the family. During that nearly five-hour period, Jarvis called his phone more than once and her calls were immediately ushered to voicemail. It is anticipated that the defense will assert that the phone did not ring because Merritt was in the ground floor/basement clubhouse of their apartment complex where the cell phone reception was blocked and that at another point he had left the phone in their apartment. In the February 3, 2019 jailhouse conversation Merritt discusses with Jarvis the importance of upholding that narrative, from which she had previously departed. Jarvis says something to the effect she knew the reception was bad and that her statement suggesting Merritt wasn’t home had come about because she “was being jumped upon by two detectives.”
Smith said that conversation might prove of some relevance in the trial because Merritt was “trying to establish he was at home, he didn’t have his phone, so he didn’t have phone calls.”
McGee insisted that Merritt on February 3, 2019 was simply seeking to make sure Jarvis did not waiver in what she had said before.
“[In] the interview Ms. Jarvis had with law enforcement, that’s what she kept telling them,” said McGee. “This is a review of the conversation. ‘And the officers kept telling her, “That can’t be right. You’re wrong. He wasn’t there.” She was like, “No. He was there. I saw his phone.” She has said that since February of 2010. And then they started trying to trip her up, and say “What about this?” and they were trying to change her testimony, to change her statement. They were trying to, realistically, manufacture evidence that he wasn’t home. She was very clear in February 2010. She has been very clear in emails she had with other people. She has been very clear with [the] San Bernardino [Sheriff’s Department and District Attorney’s Office]. ‘He was home. When that phone rang, I saw it ring and I’m wondering why he wasn’t picking up.’ This wasn’t Mr. Merritt trying to convince Ms. Jarvis what to say. This is a rendition of the statement she has said since Day One. Even though the San Bernardino Sheriff’s Department tried to get her to change that story, she stuck to it, even under the threat of arrest. They were threatening her, ‘If you’re going with this, then you’re an accomplice, and we’re going to arrest you, too.’ She still held her ground. That’s what happened. That is what the conversation was. It wasn’t Mr. Merritt trying to tell her what to say. It’s reminding her of the recorded conversation.”
Judge Smith said “I still think that conversation is relevant. If that conversation is played, however, for that inference, that Mr. Merritt was trying to get her to say certain things, then the defense I think would be able to put on the earlier statements to show that Ms. Jarvis didn’t need to be reminded or convinced of anything, that she had said that from Day One and continued to say that.”
Indications are that the prosecution will rest its case next week. It is not clear, however, whether Imes, Daugherty and Rodriguez are prepared to throw the dice and either play the recording of the February 3, 2019 conversation between Merritt or bring Jarvis in to testify. From their perspective, they may believe Merritt’s statements early last month show he was trying to hide that he was at 3473 Avocado Vista Lane in Fallbrook on the night of February 4, 2010. It is possible, however, that some jurors might see the use of evidence that didn’t exist when the trial began as a sign of the prosecution’s desperation. And if the use of what the prosecution represents as an effort by Merritt to tamper with a witness results in the defense countering with evidence that sheriff’s investigators used similar tactics of witness dissuasion and intimidation, that disclosure could hurt not only whatever prospect remains of getting a conviction against Merritt but redound to the discredit of the sheriff’s office and the district attorney’s office.