Was there sufficient evidence to arrest Charles Merritt?

In careful examination of this case, I have wondered if there was enough evidence to arrest Charles Merritt, let alone convict him.  This case was one where the use of legal smoke-and-mirrors eclipsed the complete lack of any tangible evidence presented by the state. Initially it appeared as if there was “mountains of evidence” against the defendant, but very quickly into trial it becomes clear that there wasn’t one piece of evidence tying Merritt to any known element of the crime for which he now sits on San Quentin’s death row.

So what was the actual probable cause to even hold Merritt?

Should this case have been brought to trial?

How do we establish legal safe-guards to prevent unfounded cases like this from ever making it to trial, where apparently in California, actual evidence is not required to convict?

There are cases with little or no direct evidence, that can be quite compelling. However, even circumstantial evidence has to have some tangible element. This case has none.

By closing statements, all that the state had left was innuendo. It was one of the most poorly cobbled together set of narratives by the prosecution I’ve ever witnessed. And it wasn’t just one narrative. The three prosecutors in closing couldn’t make up their mind as to which narrative they preferred, so they presented three. All contradictory. All absent evidentiary support.

The question is then, how and why did the jury convict?

The initial investigation into the disappearance of the McStay family of four, and later the investigation into their murders, has always been hampered by a number of unanswered questions:

  • When did this family actually go missing?
  • When were they killed?
  • When were they buried?
  • And if there was a gap between any of these three events, where were they in the interim?

No one knows.

And because no one knows, an objective timeline has never been produced. Even with the conviction of Charles Ray Merritt, prosecutors admitted in closing, they had no idea.

Though I know many fault investigators for this gap, I don’t.  I believe San Bernardino investigators did get tunnel vision, but I don’t think they started out biased.

San Diego Sheriff’s department, handled the missing person’s case and certainly might have done more in those initial days, but in fairness, they had no bodies, no sign of murder or even a crime taking place in the McStay home. No indication of violence in any of the McStay vehicles.  Given so many unknowns, I believe they did a comprehensive job.  Just my opinion, but I think diligent efforts were made.  Much of state’s case in chief was centered around investigators and forensics performed at that time.

It isn’t illegal for an adult to go missing. Joseph and Summer McStay were, by all accounts, in the habit of going “off the grid” without necessarily alerting family and friends.  Even longtime friend, McCarger McGyver, at trial stated he thought calling the police, even after 11 days seemed alarmist. And it did take family members eleven days after the family was first thought to have vanished, to report them missing.

Without an objective timeline, and absent a confession or eye witness, or forensics from a crime scene, how can an investigator be certain they are zeroing on the right suspect? How does one properly check alibis, if it is uncertain when specific events of the crime occurred?

In this case, there are two viable times when the McStays could have gone missing-Thursday, February 4 (evening or night) and Friday, February 5 (morning).  But there are even more possible dates for when they were killed, buried, and again if there was time between any of these events, kept somewhere.

Depending on interpretation, there is evidence to support both theories for when the McStays were either abducted or killed.  Charles Merritt, convicted of this crime, has rock-solid alibi for Friday, February 5, 2010, and an alibi that is more difficult to prove definitively, Thursday evening, February 4, 2010. But he does have alibi, and alibi witnesses for the 4th.

But what about all the other persons of interest? Were their whereabouts checked for both days?  This seems unlikely, as it was only during trial that DAs themselves, begin to speculate as to a Friday, Feb. 5 murder, rather than the Thursday Feb 4 time frame given to the public for years.

To review, for anyone new to this case, the belief that the McStays disappeared Thursday night, 2/4, was established by way of two things:

  1. Neither Summer or Joseph used their phone or computer after that night.
  2. A vehicle, captured on a neighbor’s surveillance the evening of the 4th at 7:47, never to return, was originally thought to be the McStay Isuzu Trooper. The Trooper was later located at a strip mall parking lot, locked and apparently last driven by the family.

San Bernardino investigators kept with this theory, altering it slightly. San Bernardino decided, for reasons that are a little baffling, that the vehicle captured was not the McStay Trooper, but was instead a Chevy truck, driven by Charles Merritt in 2010. They then surmised that Charles bludgeoned to death all four members of the McStay family prior to this truck departing

And even though there is no video of the truck or a person on foot, returning that night, they ignored that there were also signs of life in the McStay home, nine minutes after the departure of the vehicle in the video. Signs of life completely consistent with known behavior of Joseph McStay.

It should be noted that it has never been proven that the vehicle captured by a neighbor’s surveillance was a truck, let alone that belonging to Charles Merritt. And no accomplice has even been suggested, even though search warrants make it clear that one was looked for.

What is also ignored is that at no point did anyone who entered the McStay residence ten or eleven days after they vanish, notice anything that alarmed them. There was no sighting of blood, or smell of bleach, as if someone had cleaned. The house interior was in a state of organized chaos that one would expect if those dwelling there were performing their own renovations with toddlers underfoot.  The home looked to all as if the McStays had been in the middle of their hectic life, and for reasons unknown, suddenly up and left. (Pictures presented to the public before trial, were all taken after the McStay home had been straightened up and cleaned by family members. They do not represent the state of the home as it was originally found. The pictures below are the few that depict the home as it was found ten or eleven days after the family disappeared.)





Why then, did San Bernardino not consider alternate theories?

And there is a point in the search warrants, of which there were initially reported to be 60 (200 interviews), that it is clear investigators chose to stick with a theory, even when none of their warrants produced evidence to corroborate that theory.

Other evidence that San Bernardino claims proves that the McStays were murdered in their home was disproven at trial. It was:

  • At prelim investigators claimed that a paint tray was absent foil, inconsistent with Summer’s known method.  Paint was in the tray. But the first part of this testimony is not accurate.

Family friend, McGarger McGyver had assisted the McStays in painting their home in the days just prior to the murders. McGyver taught Summer that if she lined her paint tray with foil, clean up would be much easier. The assertion that the tray was absent foil when found, is corrected at trial by McGyver  who testified that he did see foil in the tray, exactly as he had taught Summer to place it there. 


  • A futon in the living area was absent it’s cover. Investigators contended at prelim that Joseph McStay was found wrapped in material consistent with the missing futon cover.

Not only was the material tied around Joseph McStay’s body, more in keeping with a blanket, it was in no way consistent with the cover. And there is a question as to whether the futon cover was even missing.


  • Investigators claimed that towels and tower pieces found in the graves were from the McStay home.  And that they had been used to clean the home of blood. And that the McStay home had been stripped of all towels.

No one in the McStay extended family, or in their circle of friends, ever identified any of the towels found in the graves as being from the home. Even a child’s towel-wrap with a distinctive lion face could not be identified by Joseph McStay’s mother, who had been very involved with the care of her grandchildren.  

There is one other conundrum around those towels. Most of what was found in the graves were cut pieces of towel, not entire towels. Investigators never considered why if these towels were used to clean large amounts of blood, would they be cut into small pieces?  And assertion that all the towels in the McStay home vanished with the family, is simply not true. There was a bathroom cupboard with towels, and very possibly towels in the washing machine.

Like with the vehicle captured leaving the McStay residence Thursday night, San Bernardino investigators failed to conclusively prove even one of their assertions as to where the McStay family was killed. And if the family was not murdered in their home, which is actually what the evidence suggests, then what ties a person of interest to this crime would have to be evidence found at the graves and failing this, timeline.

But how do you accurately determine an objective timeline under these circumstances? What investigators did was to build a timeline around the “dark periods” of Charles Merritt’s phone records. But what does this prove and how can it’s accuracy be gaged?

The forensics from the graves was never tied to any person of interest, not even Charles Merritt. And in my view I don’t feel that the evidence found in the graves was scrutinized carefully enough. There may be vital clues yet to be extracted from items unearthed-like those cut pieces of towel, and ratchet ties that had been cut into shorter lengths, as well. To me the towel squares and shortened ratchet ties look the perfect size for gags and binding.  Investigation have never explained why a killer would cut towels and ratchet ties and leave these in the graves. Or what possible purpose they served.

There are a few items in the graves that might point to a timeline. In the grave with Summer and Gianni was a backpack that was clearly that of Gianni., 4 years old, and the older of the McStay’s two toddlers.  Inside this backpack was a makeshift dinosaur excavation kit. This kit is seen in pictures of the children while alive. And Joseph McStay’s mother testified that this was in fact used by the children to dig up “dinosaur bones”, a favorite activity that would most likely be a daytime activity.


Given that this backpack was found in the graves, could it indicate that this crime took place in the daytime, when the McStay children would have been more likely to have this with them?  Why if this was a nighttime event, and the children were already dead when taken, would such a beloved toy be brought with the bodies?

Also missing from the McStay home is a small child computers captured in a picture of Joseph Jr in the back seat of the Dodge, in child seat, clearly having just been driven to somewhere or about to be driven. Though this was not left in the graves, it does appear to be missing. If these items were taken when the family was, doesn’t it seem to indicate both that the children were taken alive and that this abduction occurred in the daytime?

Also found in that same grave was Summer’s bra and sweats, these had paint on them and coupled with the paint tray in the McStay residence might also indicate when either Summer alone, or the entire family was first attacked.

The paint on Summer’s bra seems inconsistent with her having gotten paint on herself while painting.  Most people, even if in the midst of painting, would change their clothing if hey got this much paint on them, rather than risk rubbing up against furniture and transferring wet paint to it. The location and pattern of this paint makes more sense if it had been placed on Summer by her assailant. Or came to be on her during a struggle of some kind. Or after she had been incapacitated.

The state contends that this paint was likely dripped onto her when her assailant, they claim Merritt, painted over blood stains. What doesn’t quite work with this theory is that if Summer had simply been killed and not restrained, how is the paint pattern on the bra undisturbed. An unconscious person is unlikely to lie on their side with their arms back. Usually the arms will fall forward because there is no one to control their position. If the arms are back, the person is likely on their back.

The only position that makes sense to me, for the paint to have dried without being smudged is if Summer’s arms were restrained behind her, and she was placed on her right side.

And Summer is the only McStay victims to have paint on her when found. This suggests that abduction of the McStays may have been a staggered even, rather than an event that occurred all in one act. Could Joseph Sr. and the children run morning errands (and there is evidence to support this contention) and came home to find an intruder in their home.  Or was Joseph Sr. lured some place that morning ostensibly for some other reason-Joseph’s checkbook is found in the Trooper when found-and he and the children are abducted, the killers then go to the McStay residence and abduct Summer after?

A curiosity of this case is that one victim, Joseph Sr. is found fully clothed and wrapped in a blanket, that is tied tightly with ratchet ties and electric cord. All the other victims seem to have been buried absent their clothing. Although their clothing is found in the graves or nearby.

When disinterred from Summer’s grave her sweats were balled up above her head, underwear still inside, but when unfolded these sweats showed some type of stain at the crotch, flowing down the inside of the sweats-almost as if Summer had urinated on herself.  This is something people will do when they are frightened or at time of death.


What is interesting to note is that given where the stains are on Summer’s sweats it would appear that she may have been on lying on her side when she urinated. The majority of the stain is on the interior right side of the sweats. And the direction of the paint dripping over the left cup of Summer’s bra, toward her sternum, in also in keeping Summer was lying on her right side when paint dried.

It does seem possible that at some point in an attack, Summer was tied up with the cut ratchet ties (which from pictures we know could have been found in the McStay Dodge by the killers).

That she lay on her right side and paint that perhaps got onto her during a struggle, or was placed there for some unknown reason, dripped down and dried in a relatively undisturbed pattern.  Maybe, maybe not. But if Summer has paint on her, this is more consistent with early morning activity than late night activity, given other items strewn about the home.


Other items found in the home, consistent with morning activity were coffee, and eggs.  Popcorn was set out on the futon. There are pictures of the McStay children eating popcorn for breakfast. Apparently McCarger McGyver told defense attorney James McGee that the scene looked very much like what he’d seen other mornings when he came to paint. He denies this on the stand, but it would appear that he did say something like this off camera.


And the McStays, by McGyver’s account of that week, were getting up very early to paint. It would seem that if the parents knew they would be up at the crack of dawn, nighttime painting might be less attractive or doable than painting first thing in the morning.

But there are even more indications that the McStays were alive and well Friday, February 5. They just didn’t get on any of their devices……




To be continued….