Prone to Error

“A jury verdict is just a guess – a well-intentioned guess, generally, but you simply cannot tell fact from fiction by taking a vote.”

― William Landay, Defending Jacob


Could it be that all investigators on this case, both those from San Diego County and those from San Bernardino County, got the timeline of critical events on this case completely wrong?  Did the real killer escape notice because that person had a convincing alibi for the evening of Thursday, February 4, 2010, but were never asked their whereabouts for Friday, February 5th?

What if the family was abducted the morning of February 5th, each killed later at different times in different locations and buried much later in the week, say February 9th or 10th?  What if the family Trooper had actually been parked in front of the Pink Zone all weekend?  What if the family wasn’t abducted from the home, but lured to another location the morning of the 5th? Or was Summer home alone doing laundry and painting that morning, while Joseph took the children out for play and errand running-the killers first assaulting Summer then the rest of the family on their return?

Grave Evidence

These timeframes and theories can be supported by the evidence as convincingly as any timeline presented by the prosecution.

Not in dispute is that an objective timeline for the elements of this crime has never been established.

The time of death for the McStays is unknown.  DAs at trial admit as much, stating in closing arguments that they didn’t know when the family was killed. No one knows where they were killed. Or if they were killed at the same time in the same place or at separate times at separate locations. The date of Thursday: February 4, 2010 was based on evidence that can be interpreted in a number of different ways.

As a refresher for anyone new to this case, the theory that the family vanished the evening of February 4th was based on two things:

  1. There were no phone calls made by the McStay family after 8:28PM Thursday, Feb. 4, 2010.  There was also no computer activity after that night, as well &
  2. grainy video of a set of headlights captured on a neighbor’s surveillance was thought to be those of the McStay Isuzu Trooper, departing the driveway of the residence at 7:47PM, never to return.

But there are days in the published phone log of Joseph McStay, where he is not on his cell phone until sometime between 9AM & 11 AM. Caveat: Summer’s phone records have never been published, so her habits are uncertain. And the McStay landline records and general computer usage are also not known to the general public.  However we do know that the last call from Summer’s cell phone on February 4th was at 2:30PM; the last call from the McStay landline was at 4:15PM.  If this phone usage was common, this might suggest that Summer was not on either the landline or her cell phone that often. No where as often and Joseph McStay, who used his cell phone for business.

Could the family have just not used their phones or computer early that Friday morning?  Joseph McStay’s phone log not only showed that many days his cellular phone usage began well after 9AM, but that on most days there was a “dark” period, between six and eight every evening. (otherwise Joseph McStay was on his phone all day long.) This two hour block is a time one might imagine Joseph put aside to spend quality time with his wife and two toddlers. So, it seems possible that Joseph and Summer may have deliberately kept their phones off the morning of the 5th, and were abducted before they were ready to use them.  (Even close family friend, McCarger McGyver at trial stated that he felt some were overreacting when they could not reach the McStay family in the weeks they were missing, and he had been scheduled to see them that weekend.  And he had attempted to reach Summer many times on Friday Feb. 5.  No family or friends sounded the alarm on the McStay’s disappearance. It seems that the McStay family of four had gone off grid from time to time.)

If you work for yourself the only way you can really leave the office is if you turn your phone off. 


Excerpts from Joseph McStay phone log spanning November 2009 – February 4, 2010

(Circled in red are Joseph McStay’s first calls of the day.)






And there was a bottle of water and coffee discovered in the cupholders of the McStay Trooper when it was retrieved by investigators.

water coffee in cupholders


water coffee in Trooper

These items had only Joseph McStay’s DNA on them. All the other items tested in the Trooper were mixed samples, with at least three contributors. Joseph, his wife and the children (Chase Merritt was included as a minor and trace contributor to the steering wheel and a general swab). Whether you believe Merritt’s DNA is there from direct contact or transfer (transfer really seems most likely), it would seem very likely that anything Joseph had been touching all day would receive some transfer DNA from his children and wife.  These were people he certainly had a lot of physical contact with, not to mention touching items they touched.

For the coffee mug and water bottle to only have Joseph’s DNA on it suggests that these items may have been cleaned and freshly filled just before they were placed in those cup holders-not left overnight in the Trooper from the day before.  From pictures taken by investigators, the water bottle looks full.

Was Joseph McStay the type of person to leave his travel mug and water bottle in the Trooper overnight, or would he have been more inclined to bring these items inside to be cleaned for the next day?

There is a checkbook in the Trooper as well as Joseph’s soccer outfit. Would Joseph McStay have kept a checkbook always in that vehicle, or did he have it there for a reason? Was he going to make a payment to someone or to, say, perhaps a storage unit? Or did he sometimes prefer to pay for store bought items with checks?

I would assume Joseph cleaned his soccer outfit after each use.  Friday nights were his soccer nights.  Was the Trooper filled with what would be needed for various activities throughout the entire day? Joseph also has a key to a padlock loose in a pocket. This is in addition to the padlock key on his key chain. Maybe he also had plans to run by the family storage unit.  Lots of possibilities.

Were the child seats moved from the Dodge to the Trooper that morning (rain was expected and if one were going to purchase items the back of the Trooper would be preferable to the open bed of the Dodge truck).  The Dodge Ram, when photographed, looked as if items had been thrown into to it without any order. Could these items have been pulled from the Trooper that morning to  make room for those child seats?


The identity of that vehicle captured by the neighbor’s surveillance, thought to be departing the McStay drive, has never been confirmed.

Once SBC investigators examined the neighbor’s surveillance, they dismissed the theory that the vehicle captured was the McStay Trooper. However, without any real evidence they then decide this vehicle must be the Chevy 3500 truck Chase was known to drive at the time.  There was no license plate visible. Make and model of the vehicle are unknown. And there are signs of life in the McStay home nine minutes after the vehicle departs. Investigators reached this conclusion absent verified evidentiary support.  Basically it was a wild guess.

Testimony from the Preliminary Hearing:

Page 145 of Preliminary Hearing for People v Merritt

  1. However, this vehicle is probably NOT that of Charles Merritt either.
  2. Yes. One, out of three, “expert” witnesses, paid a boat-load of money was able to make the dubious claim that Merritt’s Chevy truck could not be completely excluded as being that of the vehicle behind the disembodied lights captured in the infamous “Mitchley Video”.  But really, look for yourself. Merritt’s truck and whatever vehicle was captured, DO NOT APPEAR TO BE THE SAME.
  3. It’s uncertain if this vehicle had anything to do with the crime. There is also a capture of a vehicle entering the cul de sac just moments before. Maybe it was a just a lost person who made a quick K turn, rather than continue to the end of the cul de sac to turn around.

If the lights don’t fit…

But even if they could be the same vehicle, how does one then account for the fact that nine minutes after this vehicle departs there are signs of life in the McStay home, that are completely consistent with known, mundane, behavior of Joseph McStay? And this behavior left a clear digital footprint.  There is computer activity that only makes sense if Joseph McStay is the actor. And an 8:28 PM phone call that pings the tower consistently pinged by McStay’s cell phone, when he was known to be home.

San Diego investigators watched the “Mitchley” video for any sign of a vehicle returning, after that 7:47 departure-and they saw nothing.  Which means that if that vehicle had anything to do with this crime, it never returned that night. The camera of the neighbor whose surveillance captured the departing vehicle somehow malfunctioned the next day-the 5th.  It seems most logical that if a vehicle was driven to the McStay home for the purpose of harming the family, that the vehicle arrived in the morning AFTER the surveillance disabled.

Also, there are clear indications that the family was engaged in, or had just engaged in breakfast, just prior to whatever happened to them, happening.

There are eggs and coffee out. Partially eaten breakfast food.  The dogs appear to have been put outside. Beds upstairs are unmade. Though there are bags of popcorn on the futon (absent a cover); pictures of the McStay children close to the time of the murders show that popcorn was an all-day treat.

The clothing the McStays were buried in/with was casual. They did appear to wear this type of clothing at all times, but it is certainly consistent with apparel for casual morning activities.  There were also piles of clothes in the upstairs master bathroom and closet. This could have been indicative of a number of things, but one possibility is that the family was engaged that morning in major laundering. Which would explain the absence of the futon cover from its cushions.




Pictures below taken by SDSD Detective Tingley, on first entering the McStay Residence, prior to any cleaning. And prior to search warrant on home being executed.

McStay Home Tingley Clipboard

McStay Bedroom Tingley

Important to note is that most of the pictures of the McStay home that the public saw, for years, were taken AFTER the home had been cleaned and reorganized by surviving McStay family members who entered the home prior to the search warrant being executed, and subsequent pictures taken. The pictures seen above are two of the only seven pictures taken in 2010 that show the actual state of the McStay living area and upstairs bedroom when the house was first entered by investigators almost two full weeks after the family vanished.

All the other elements of this crime may also have mistaken times.  The McStay Isuzu  Trooper was towed from the San Ysidro border parking lot on Monday, February 8 but it is not absolutely certain when that Trooper came to be parked in that lot.

Although San Diego investigators checked the surveillance of businesses around that parking lot to ascertain exactly when the vehicle arrived, they only viewed surveillance from 5PM to midnight on the 8th. And, as with the McStay neighbor’s surveillance, they found nothing of concrete evidentiary value. Investigators were not able to spot the McStay Trooper entering the border-adjacent, strip mall parking lot. The question then is, why, if they never catch sight of the McStay Trooper on surveillance do they embrace so completely the theory that the Trooper arrived on the 8th?

San Bernardino County investigators and District Attorneys on this case discard the arrival of the “after-5PM” arrival of that Trooper to the lot.  Their theory is that Chase abandoned the McStay Trooper in the strip mall lot mid-day on the 8th. But there is no evidence to support this theory either.

In fact there is clear evidence that Chase would not have been able to have driven the Trooper to the border and returned to Rancho Cucamonga where he pings near at 1:30PM, unless he had a co-conspirator.

Chase is placed at Metro Sheet Metal, mid-morning on Feb. 8 by the administrator of that Metro, Carmen Garcia.  On the stand she is clear that this visit happened that morning. And Joseph McStay’s phone records would seem to support her memory of this.

Carmen recalls phoning Joseph Friday, February 5 and being unable to reach him. There is a call from Carmen to Joseph the Friday before on January 29th. But as phone records prove, Chase Merritt was at home all the following  Monday (so a Feb 1 encounter at Metro could not be mistaken for Feb 8). He does not ping in Azusa (where Metro Sheet Metal was located) at all on Feb 1, so it is unlikely that Carmen is confusing the Mondays. And though the DA at trial suggested that Carmen confused Monday the 8th with Tuesday the 9th, this theory is also not supported by phone records.

Chase visits Joseph’s mother Susan on the 9th and also visits the McStay home on that day for a welfare check of sorts. The only Monday it makes sense that Carmen saw Chase at Metro, given all the circumstances that she reveals about that visit, is Monday the 8th.

Without an accomplice it would be impossible for Chase to leave Azusa late morning, drive to the border and get back to Rancho by 1:30.  And investigators have never located an accomplice. And this wasn’t for lack of trying.  And the original time frame given by parking lot security for when the Trooper most likely arrived that day, was after 7PM.  But what is also testified to is that the head of security did not work weekends.  Is it possible that the vehicle was there longer?

It is a simple fact that no investigators from either investigating agency, ever ascertained for certain when that Trooper arrived to that parking lot.

It is not out of the realm of possibility that the Trooper was left at the lot on Friday the 5th by the McStay family. Perhaps the McStays drove to the border that Friday morning to bargain shop, something they were known to do and something happened to them after they arrived. There was a Ross for Less store near to where the vehicle was parked. There was also a Pink Zone and a Dollar Store, the types of stores one might imagine Summer would shop in. There are newly purchased toys in the back of the Trooper.

I’m not suggesting parking lot attendants are lying, only that they could be mistaken.  Different people worked different shifts. It was super bowl weekend.  Maybe there were distractions.

There is no evidence, objective or otherwise, of when the McStay family was buried in two shallow graves in the the Victorville desert.  The date of February 6 was one built around Charles Merritt’s phone records, not forensic evidence.  The only evidence presented that might narrow when the family was buried were pictures taken by a small aircraft, that the defense located. The date those pictures were taken was February 12. The graves are visible in that picture, so it would seem that family was buried BY February 12.  But there is nothing to show what day exactly, they were buried.  And February 6 seems an unlikely day, because there were torrential rains all morning. And major flooding in the region.

If investigators had the timeline of WHEN this family was first abducted or killed WRONG, then how many possible suspects did they overlook?

Everyone they spoke to would have been asked as to their whereabouts Thursday night, February 4, 2010. But was any person-of-interest asked as to their whereabouts Friday morning, and all day Friday, February 5?

In the interview of Charles Ray Merritt on February 17, 2010, San Diego investigators only ask Merritt about his whereabouts on February 4 & February 8 (February 8 is the date that the McStay Trooper was towed from a strip mall parking lot at the San Ysidro border crossing). Merritt isn’t asked about his whereabouts on February 5th or 6th until four years later. This is after the McStays are found buried in two shallow graves in the Victorville desert.

(Charles Merritt’s alibi for Friday the 5th is pretty rock solid. His digital footprint that day has him far from the McStay home in the morning. And at home writing checks in the early afternoon. Basically, if this crime began Friday morning, Charles Ray Merritt is excluded as having direct involvement.)

If the timeline is wrong, then did the real killer get away because investigators were asking the wrong questions?