What next?

Hurry up and wait…

Now, over five months after a verdict has been rendered, the outcome of this trial remains in question.  Given all the twists and turns of this case, there is every reason to believe more surprises await.

Per the docket the following has occurred:

Juror Questionnaires were received; a week later a motion for continuance was filed. These two events may not be related, but they could be.

Juror Misconduct PicMonkey 3 Cropped again


On September 17, 2019 another motion for continuance was filed, as well as Lead Defense Attorney James McGee filing a motion requesting withdrawal as attorney, citing conflict of interest. (These motions were granted on November 1.)


Conflict of Interest


This week (November 21 & 22) there appears to have been the finalization of transcripts for closing statements. And it would also appear that the DA’s office is gearing up for a response to an appeal by the defense. (It’s unclear if any appeal has as yet been filed. The original deadline of November 22nd, may have been extended. Or the filing of the appeal is simply not yet reflected on the docket.)


Motion For New Trial PC 1181


And sentencing is schedule for January 17, 2020.  However, this hearing is also scheduled for post-judgment motions. So we shall see…

One can only speculate what the issues on appeal will be, and whether the defense will even bother with a request for a reduction in sentence (asking for a reduction from the Death Penalty to Life Without Parole).

Or if they are only going to file for a new trial.

My guess: if a new trial is not granted by the judge and a sentence is going to be rendered, a death sentence might be the better one to get.  There is more state funding for further appeal if a person is on death row.  And at Merritt’s age (62), life without parole is basically a death sentence anyway.  Especially as, for now anyway, no one is being executed in California.

So, really, other than the location where Merritt will be imprisoned during the appellate process, there isn’t a whole lot of difference between DP & LWOP for him-other than, again, there being more state funded legal assistance available to death row inmates, than those with LWOP.

(There is only a state funded direct appeal for those given LWOP.  With DP direct appeal is automatic and habeas appeals are state funded for indigent clients.)

Every stage of appeal has different criteria.  A 1181 motion for a new trial is pretty much limited to issues like: jury misconduct, new evidence that had been unavailable and unknown to the defendant at trial, lack of sufficient evidence, ineffective assistance of counsel & prosecutorial misconduct.

It does seem possible that even though technically the DNA profiles discovered by defense experts had been known since before the start of trial, that SBC DA’s refusal to run these DNA profiles through CODIS, might constitute a de facto Brady violation. (These DNA profiles were extracted from items in the McStay graves and analyzed by accredited labs.)

DNA profiles are of no legal use, absent comparison to subjects who may be a match.  Though Merritt is excluded as a match, it is only with an inclusion of another party that this evidence is likely to prove exculpatory. But there is no way to know who these profiles match, if this DNA is not run through state and federal databases.

If the only means of getting a comparison made to DNA is by way of prosecutors making this happen, then this refusal on their part seems similar to withholding discovery that the defense is entitled to. This is, a very basic and simple request, with little or no cost incurred by the state as the defense took on this financial burden, paying all the fees for the extraction and the analysis.  (And it is a request, I might add, that seems very much in the interest of justice.)

But again, we will see…

[For legal junkies this case has been an embarrassment of riches.  Between the volumes of legal documents made available and a direct view at legal maneuverings usually not witnessed by the public, this case might prove to be (for those who took the time to read and watch it in its entirety) a legal and forensic Master’s degree.]