A Brilliant Defense

From almost the first moment Chase Merritt was arrested it was clear that he was not your typical defendant. He made choices that at the time were criticized as an attempt to stall the process, however in hindsight, could be viewed as nothing short of brilliant.

For Chase to fire his first attorney, go pro per, affording him the opportunity to learn the evidence on his own case-brilliant!

This put Chase in charge. He knew what evidence or lack of evidence there was. Few defendants know, in depth, the evidence against them.

Chase didn’t have deep pockets. And the challenges for someone in his position to get adequate representation can be daunting, but Chase made some smart moves.

After learning the evidence, Chase then hired attorney, Jimmy Mettias. Mettias would later be disbarred and this would not prove to be a long lasting relationship, but it did get Chase representation for his preliminary hearing–which in California, has questionable value for the defense, other than get a feel for the state’s case and strategy.

Following prelim, there was some rift between Mettias and Chase. Enter stage right: Rajan Maline.

It was easy to tell that Maline brought strategy to this case that wasn’t there previously. Immediately motions were filed challenging the arrest, etc. Later former San Bernardino prosecutor, James McGee joined the team. McGee is an accomplished defense attorney and has a strong foundation in science. There were also consultants and private investigators who came on board.

Chase had done the impossible. For an indigent client to build a dream team like this, is unheard of. So unusual. And it shows the exceptionality of this man. Really amazing and exciting to observe.

But even as brilliant as he is I believe that Chase is wrong that his attorneys failed him. And I suspect Chase is a difficult client. For good reason, but even an innocent shrewd client can become an obstacle to their own success.

In my view, what everyone on the defense team was up against was a real life David and Goliath.

Except it’s more like David vs 3 Goliaths.

When a person is wrongfully convicted they are not just battling one powerful government agency, they are battling three: the investigators (in this case the Sheriff’s department); the DA’s office and the judicial branch of our government.

When you examine resources and power-differential, anyone facing just one single, powerful and determined government agency, is fighting a virtual tsunami. Fighting three powerful government agencies is….hard.

And all three of these agencies operate with budgets your average defendant can never match, and they all operate with nearly zero accountability.

In theory these agencies were designed to be checks and balances to each other, but in California, anyway, they work mostly in tandem. There are very few genuine checks and balances–and even brilliant, industrious defense attorneys can find themselves at their mercy.

Maline and McGee put on a hell of a case in chief. I leaned hard toward Chase being innocent after reading the published search warrants, but by the end of the trial I was convinced he must be innocent. And this is because of Maline and McGee. The trial was also a crash course in advanced forensics.

The defense case in chief was complex and difficult to navigate at times, but it was the kind of defense every person facing charges like this should get. And it exposed the profound flaws in the state’s CIC which was riddled with errors-and crumbled under scrutiny.

Did the defense make some mistakes? Possibly.

Could they have dummied things down a little?

It probably would have helped. There was so much science, even just one of the defense’s experts was overwhelming, but by the end of trial the defense brought no fewer than 8 expert witnesses. The science was cutting edge, and it was also very difficult for the average lay person to understand. And unlike those of us at home who could rewatch the testimony numerous times, the jury could only review it by way of reading the transcripts.

Could a more cogent narrative in closing have been helpful?

Maybe. However, the defense was denied a third-party culpability motion that might have made all the difference. They were disallowed from even mentioning Dan Kavanaugh at all during closing. McGee got in trouble for trying.

Put simply, McGee and Maline were up against a tsunami of unfair disadvantages, that even as skilled as these two attorneys are, was difficult if not impossible to overcome.

The prosecutors on this case were allowed to speculate well outside of the evidence. Defense attorneys weren’t even allowed to bring in the hard evidence that they had so skillfully culled out from the state’s error-riddled and unsophisticated investigation.

And add to this these attorneys also had a client who though very intelligent, was on ocaission not as strategic as he probably should have been.

The Prison Wiretap: Chase had been in the habit of bypassing the prison phone when certain guests came to the visit. Instead he would yell through the plexiglass barrier, thereby avoiding being recorded. Sgt. Ryan decided to place recording devices in an attempt to capture what Chase spoke about with his guests and he captured Chase coaching Chase’s former partner Cathy and mother of his children, prior to her testifying on his behalf.

My take on what Chase said to Cathy was sounded more like a pep talk, than anything else. These aren’t his exact words, but this is the meaning I took from them: “You’ll be fine.” “Just tell the truth.” “If you feel uncertain, follow the attorney’s lead, they can be trusted.”

There was no attempt to alter her testimony, but it still left an impression of impropriety, and at this point in the game, Chase really should have known better. Did he actually think that no one would notice that he was bypassing the prison’s monitoring system? In an otherwise brilliant client, this move was not so brilliant.

But I also wonder if this isn’t indicative of the traps the innocent can fall into. A guilty person would likely have been more cautious. Since Chase was doing nothing wrong, he may have felt there was no harm talking through plexiglass, rather than a phone. If he’d been out on bail he would have been afforded the opportunity to speak to the mother of his children, privately.

We all value privacy. Imagine being deprived of all privacy.

Should McGee and Maline have brought their cellular data expert to the stand? I think so–if only to reinforce the idea that Chase could have been in Victorville, or Oro Grande as easily as at the graves. But I also would have been worried that given the large quantity of the science the jury had already been presented, it might have been too much. And it might not have made all that much difference.

Chase believed that this alone would have altered the outcome. I’m not so sure.

Cellular data is not conclusive. And merely showing that it was unlikely Chase was at the graves may not have made that much of a difference.

In closing DDA Rodriguez suggested that the prosecution had never stated that Chase dug the graves on the day he pinged in Victorville. (Was she suggesting that Chase’s presence in the region alone, signified guilt?) Although this is a ridiculous claim, and ignores her burden to prove Chase was actually committing a crime it still may have impacted a jury, confusing them into thinking that merely by being in a city near to the graves, Chase is guilty.

The prosecutors played dirty on this. And they successfully shifted the burden from theirs to prove guilt, to the defense to prove innocence. And the judge supported these prosecutorial shenanigans, pretty much, every step of the way.

So, I think Chase is dead wrong when he attacked his attorneys.

At the end of the day, in my opinion, Maline and McGee deserve a medal of courage, not the jail term Chase suggested they should be given, during an interview in the documentary Two Shallow Graves. What these defense attorneys did takes guts. They risked a lot. And from everything we’ve been allowed to know, they did the very best they could.

I get why Chase is angry. This is his life. And he does not deserve what has been done to him. But if it were me, I wouldn’t spend a lot of time and energy lambasting those who actually did their best to defend him–maybe it’s time to hold those responsible, who made this happen in the first place.

There were so many times when investigators and DAs could have stepped back. reassessed and perhaps given more time, and more sophisticated forensics, actually have solved this crime.

Those with the greatest power, bear the greatest responsibility.

And shockingly, in our modern day court system, these powerful players face next to no consequences for mistakes or operating in bad faith.