Alternative Theories

What if…

I don’t know what happened to this family, but I do believe that the evidence offered at trial by the defense paints a very different order of events than what the prosecutor presented. Here’s an additional theory to throw at the wall:

February 5, 2010


The future looked so bright…

In fall of 2009, Joseph Sr. 40, his wife Summer 43 and their two children Gianni, 4 and Joseph Jr. 2, at that time, moved from cramped quarters of a two bedroom apartment near the beach in San Clemente to a five bedroom home in a sprawling planned community of Fallbrook, trading in the sea for avocado trees and mountain views.

For those first few months the family camped out in their new home, as renovations progressed-paint, new flooring, new countertops and appliances., The entire family slept in the master bedroom on two inflatable beds set up side by side. A four-foot by six-foot plastic replica of a stone cottage loomed adjacent to the shared sleeping quarters-strategically placed diversions for early-rising toddlers. The structure was large enough that the children could sit in side it together. There was a lamp near the wall of the entry, dog beds were positioned near the beds on the floor and a flat screen television attached to the wall directly across from the beds. With all dressers still in storage, the family lived out of suitcases.

Downstairs a small futon-couch provided what little seating there was in the living room. A table Joseph’s mother had given to them, as well as a child-size table and chairs of a proportional size for each of the tables, claimed a small portion of the otherwise sparsely furnished open-concept. The kitchen and pantry were at one end, a fireplace and entertainment area at the other. An oriental rug covered most of the laminate that joined the spaces.

At the front entry to the home another table and four chairs took up the back part of what might be used as a TV room or second living room. In the February of the family’s disappearance (2010) flooring boards sat near the window of the room, right by the front door, acclimating. Friday, February 4, had been scheduled for installation, only the forecast of rain would force a postponement.

After passing through the front room, open-concept kitchen and living room, enroute to the garage, was a downstairs bedroom, turned into Joseph Sr.’s den. Within this small office there was a desk, chairs, filing cabinets and two desktop computers.  A small child’s desk and chair for Gianni or Joseph Jr. was set up near to their father’s big-boy desk. At this location the two toddlers could get on a computer left available to them, and perhaps even pretend to do the work they observed their dad engaged in–every day, all day.

Most of what the McStay family owned was still in storage Pods or taking up the entirety of their two vehicle garage.

The first four days of February 2010 had been busy. Joseph worked on the completion of numerous, major custom fountain projects for his on-line water feature company-Earth Inspired Products. The custom fountains ranged in value from ten thousand to over sixty-thousand each.  Friend and business partner Charles Merritt, not only built the fountains for EIP, but was also at the McStay residence almost every day that week building a storage unit in the backyard and repairing a washing machine. Long time friend McCarger McGyver assisted Summer in the painting of the home’s interior, work that needed to be completed before the flooring was installed.

Last recorded activity that week by the McStays was a phone call from Joseph McStay Sr. made to Charles Merritt at 8:28 PM, February 4, 2010. But there is no way to know if this signifies anything. Observing both phone records and computer activity, though this family used their digital devices a lot, they were also off them a lot. It was not unusual for Joseph Sr. who did most of his business by way of his cellular phone and computer, to be off these devices all evening and not return to them until late morning.

When exactly this family was snatched from their new life is uncertain. That no one can account for their whereabouts after the evening of February 4th, is more certain. What is absolutely certain is that at some point, either Thursday night or Friday, this family’s future altered, and though, again, no one knows when they died, they were absent from home, friends family and a future so bright, it had required sunglasses.

On Monday, February 15th, San Diego Sheriff’s investigators responded to the McStay residence, on a missing persons report, phoned in by Joseph Sr.’s brother, Michael McStay. This was a full eleven days after the last known activities of the family.  What San Diego investigators entered was a home eerily absent its inhabitants. Half-eaten food lay spoiled, discarded on plates that lay strewn haphazardly over the counter of a kitchen island.

Freshly painted shelves had been left to dry on top of sheets of newspaper, next to a disemboweled island cabinet in the kitchen.  A paint can, greased in paint left exposed with its lid off. Coffee grounds, eggs and fruit all shared space, rotting on the counter by the sink. On the futon-couch, absent its cover, were two small, bowls of popcorn, escaped kernels fallen to the exposed foam of the cushions.

The scene was reminiscent of an episode of Twilight Zone.  A family engaged in a whirl of activity, suddenly, and for no apparent reason vaporized into the ether.

Speculation as to why this family of four disappeared ranged from entry into the witness protection program to an abduction by sex traffickers. Other theories veered darkly to murder by a Mexican cartel, or less harrowing, perhaps an unplanned trip across the border to escape from a life they suddenly decided had become untenable.

In short, no one had a clue where this family went or why.

Three years after the family vanished, an off road motorcyclist came upon what he at believed to be a tortoise shell. On closer examination he realized it was a small skull, likely that of a child.  And with that and a call to 911, one mystery surrounding the disappearance of a vibrant family of four was solved. Everything else remains uncertain.

The original theory that this family vanished the night of February 4th remained the foundation of the investigation, even though evidence revealed at trial could very convincingly point in another direction: The morning of February 5th. There is a lot of evidence to support the 5th over the 4th as the day the McStays lost their lives. That evidence is in paint, soiled sweats and torn, cut pieces of towels, ratchet ties, coffee cups, a water bottle and most significantly–keys.

The week of Feb. 1 had been taxing and exhausting for the McStays. Rain was expected Friday February 5th, and though the flooring installation had been postponed due to rain, the painting of the downstairs of the home wasn’t near to being finished.  Family friend, McGyver was expected to return to the McStay residence Saturday and Sunday to help Summer finish. That Friday would be the only time when the family could be alone, celebrate Joseph Jr.’s birthday which had occurred the weekend before.

Here’s what maybe happened that morning…or not…but maybe something like it.

The toddlers had arisen before the dawn, tumbling out of bed and into their gigantic castle. Parents attempting to get more sleep instructed the children to play quietly, but by five AM all chance of sleep is gone and everyone gets out of bed, trundling downstairs, letting the older dog and the family’s new puppy out before he mades a mess.

With rain in the forecast for later in the day, the only hope of giving Gianni and Joseph Jr. a chance to play is if someone takes them to park in the morning. Joseph had accomplished a lot that week. Enough to where he would likely have been able to take most of Friday off from his business. Chase Merritt had been given blank checks as he finished jobs and Joseph had discussed final touches to the fountains in progress the day before–both at the lunch meeting and on the phone after. First and second installments on payments from clients had come in and had been deposited and vendors had been paid. Joseph could enjoy a day, or at least part of a day, free from his cell phone.

Joseph Sr. had been experiencing bouts of fatigue and vertigo. He had speculated that some of his recent illness might be due to his constant use of cell phones, so a well-deserved break was in order. And as busy as he’d been, he’d missed his children. The perfect plan was born over brewing coffee: take the children out on a morning adventure. Pay the storage pod bill in person–it was the start of the month–and retrieve toys previously purchased for Joseph Jr.’s birthday, that had been hidden so as to be a surprise later that day.

This would give Summer time to herself in the morning to paint  and Joseph, who had either been at home working or out at meetings would get to spend some quality time with his boys.

Joseph poured his coffee into a travel mug, refilled the glass water bottle he kept with him at all times. Grabbed these libations, retrieved his checkbook from the den and the key to the Pod padlock from a kitchen drawer and with his car keys in hand, wrangled the boys, their favorite diversions–a child’s computer and a home made dinosaur excavation kit–out to the Dodge.

But there was a problem rain was expected. If it rained earlier than expected while they were out, the bed of the Dodge truck had no cover, leaving anything placed there exposed to rain. And it was the Dodge that the car seats were in. Instructing Gianni and Joseph Jr. to play on the front lawn while he worked, Joseph quickly threw items from the back seats of Trooper into the Dodge. Then he pulled the carseats from the Dodge and installed them into the Trooper. The surveillance from the neighbor, that caught grainy, blurred images from the night before, had stopped working. There would be no way to determine what took place at the McStay home that morning, however it would also be true to say that a lot could have happened and this can only be surmised by other known events and circumstances.

The Dodge was now a disorganized mess, but this could be dealt with later. Just as swiftly as he’d installed their seats, he bundled his boys into them-both boys well entertained. Gianni had his dinosaur excavation kit. Joseph Jr. had his small computer with games .

With children, coffee, water and checkbook in the Trooper, Joseph departed his drive leaving Summer alone in peace.  With the her boys out of the way, Summer likely lined the paint tray with foil and poured paint in.  Within a half hour the first coat was completed. Summer painted kitchen shelves, alternating between this task and laundry. If she planned this right she could get two coats of paint on the drawers, and all the laundry that had been building up since the holidays, done.On entering the home over a week later, investigators would find clothes recently dried, scattered in locations where they could later be sorted and folded.

Summer may have peeled a banana and ate while a package of popcorn ballooned in the microwave.  She prepared two bowls for the boys. When they got home they would no doubt be starving and this would keep them happy while she made lunch for everyone.  The bowls she placed strategically on the futon-couch, which sat directly in front of a flat screen television, adhered to the wall. The futon’s cover was off, cleaned and dried upstairs, she would place it back on later when she had time.  For now she could trust the boys wouldn’t make too much of a mess with only popcorn as their tool.

She headed toward the upstairs, ready to add another load of laundry when the sound of an engine neared the front of the house.  Though it didn’t sound like the Trooper, she thought that perhaps Joseph had brought the children back early, or maybe McGyver had stopped by to check on her progress.  She bound to the door opened it. The two men and one woman on the other side of the door were not who she was expecting.


It seems likely that Summer tried to defend herself with a hammer. It may have been on the counter for renovations. As she grabbed it, paint on her hand attached to the handle.

This was pulled from her. She may have been brutalized, hit in the face, eventually restrained, a torn piece of towel crammed into her mouth. Blue painters tape was used to cover her mouth and hold the ragged piece of towel in place. She hands were bound behind her back with ratchet ties that found in the Dodge by the intruders. At some point her shirt was removed. And with hands tied she lay on her right side.

In terror her bowels released, most of the urine accumulating on the right of her sweats.

Photo of Summer’s sweat pants from the rear. The right side has greater accumulation of whatever stained these pants.
Photo of the front of Summer’s sweats. Again the accumulation of whatever stained the pants collected more in the right leg than the left.

Paint that had dripped onto her bra formed tears descending from the left part of her bra toward the sternum. As if she was lying on her right side, with hands tied behind her back.

Photo of left cup with paint traveling toward the sternum.

From where she lay restrained and gagged she would have had no way to warn Joseph and her boys when they returned from errands, that they should not enter the home. Once Joseph Sr. returns he may have fought back in the entry and was somehow killed. Or the entire family was taken from the home alive. It might be that one parent was forced to drive the Trooper, boys alive in back. The other taken in whatever vehicle the killers arrived in. Or perhaps Joseph never made it out of his home alive.

I believe there was is a fourth crime scene. I would imagine it is someone’s home. I think that there are at least two people involved, maybe more.  I think the original plan was not to kill the family, but that in some sort of altercation Joseph was killed. And when this happened the plan had to change.

Joseph was packaged up in a blanket with all his clothes–t-shirt and sweats. Socks are beneath him in the grave. Keys are still in his pockets. All this suggests he had either just walked in from driving his Trooper, or was on his way out when attacked. Who keeps that many keys in the back pocket of sweats, if they are lounging at home?

The other three victims appear to be without their clothing when found. I don’t know what this means. Summer’s bra was cut in front, as with a knife and disengaged at the back. Half was found in the grave with her. Half about 20 feet away.

I believe whoever did this buried their victims to distance themselves from the crime, but didn’t actually care if the bodies were eventually found. Which might indicate there was no intimate relationship with the victims. Or, in the event that the plan was to frame Merritt all along, the killers perhaps wanted the bodies found exactly where they were found.

[The evidence that supports the above is that there was one coffee cup in the home, a travel coffee mug in the Trooper. Also a bottle of water, that looked as if it had been refilled. Only Joseph McStay’s DNA was on the travel mug and the water bottle, suggesting that these items had been recently cleaned, and that Joseph may have just showered and was not transferring DNA from loved ones, to these items. If Joseph had been home with Summer that morning and never left, it would seem as if his coffee cup would have been found in the vehicle.

Also Joseph is found with keys that seem to indicate he was either going to visit his shared storage unit, the one he rented with Chase–or his pod storage, where perhaps there were toys to be retrieved for Joseph Jr.’s birthday celebration. The back of the Trooper was filled with toys. A blanket type clothe over them all. It would seem odd that these toys had been in the Trooper all week, and not brought into the garage or wrapped surreptitiously at night. It does kind of look as if they were retrieved from the storage pod that morning.

There is a very real possibility that the child seats were moved from the Dodge (driven by Summer that week) to the Trooper, after Joseph returns from his meeting with Chase. Even DA Imes introduces this idea at trial. Although his theory is very different from my own. It seems unlikely that Joseph would leave Summer without carseats for the children, as they were left with her on that Thursday. And that Joseph drove his Trooper is evident by the DNA left in that vehicle. Joseph’s DNA was in much greater amounts than Summer’s. And we know that Summer went on an errand that Thursday. Her credit card receipts show this. Given known activities of Joseph by way of his computer and phone logs, the most logical time for this to have occurred was in the morning of the 5th. Joseph seemed very busy the evening of the the 4th.

There were two travel “toys” that the children are documented having in the vehicles when they were taken on trips. One was the dinosaur excavation kit and the other was a child’s computer. The dinosaur excavation kit was found in the graves, the child’s computer appears to be missing.]

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