Defense Penalty Phase Closing

Jurys are fallible. And they unfortunately do get it wrong often enough to warrant organizations like Centurion Ministries and Innocence Project existing. Based on exoneration numbers it is estimated that at least 5% of those in our prisons are innocent. There are many who believe this number to be considerably higher.

But when someone is sentenced to death being certain that a verdict is correct becomes even more critical. There is literally a life hanging in the balance.

This is such a case.

June 24, 2019, twelve people convicted and sentenced Chase Merritt (Charles Ray Merritt) to death. The question is, was there really evidence to convict?

Distilled down, this case revolved most significantly around the working and personal relationship of two men who were business partners and friends.  If the friendship and partnership was going well, motive is non-existent. All the activities like QuickBooks-check-writing and gambling are then just coincidence surrounding, but unrelated to the murders. And evidence presented by both the prosecution and the defense related a partnership between Joseph and Chase that had been lucrative for them both.  The two saw their income increase in the three years they’d teamed up together, in ways, it might be argued, they wouldn’t have seen absent that partnership.

In addition to this, a strong friendship developed. These two spoke every single day of the week, sometimes as many as 30 times in a day.  There is nothing in the phone logs or computer forensics, or testimony presented at trial to indicate that a sudden rift occurred in February of 2010.  The established facts of the case actually revealed that both in their professional life and friendship, things were better than ever.  Chase may have had challenges of his own with his family and personal finances, but there is nothing to indicate that these challenges bled significantly into his work with Joseph.

For example: Chase had helped Joseph and Summer pack and move from their cramped two-bedroom apartment in San Clemente, first into Pod storage, and then into their newly purchased Fallbrook home in the fall of 2009. Chase was at the new residence in Fallbrook in the first months of 2010 helping there as well. He built the shed in the McStay backyard. The week of the murders he was at the McStay residence almost daily helping with home repairs and going over plans for water features for Joseph’s company Earth Inspired Products (EIP).  The theory that Joseph had any intention of firing Chase is not supported by any objective evidence.

However their working relationship was a little unconventional, as was Joseph’s approach to business.  I believe this has to be taken into consideration.  Joseph did not keep his books in a traditional manner. He had no accountant, apparently, so there are only his records to go by and by way of his records Joseph is documented regularly adjusting things as his company grew and evolved.  For example, he added an account he entitled “CUSTOM” to his QuickBooks accounts (prior to this, he had one account entitled “CONTACTS”) only after he began working with Chase.  By 2009 Joseph appeared to be rethinking how he was using QuickBooks.  He had originally hand-written most of his checks.  But by January of  2010 he began drafting computer generated checks.  Which necessitated the need to add vendors not previously listed in either of his QB accounts.

There is also a laptop computer, thought to have been purchased only a few months before the murders, that was missing  from the McStay residence when the home was searched after the disappearance. And this laptop has never been located. This computer may have contained spreadsheets and documents that could possibly have clarified some of the Joseph’s bookkeeping. It is also peculiar that tax returns were never brought in as evidence, as these would have perhaps shed light on how Joseph kept his books.

Aside from the slightly untraditional nature of Joseph’s bookkeeping methods, 2010 was going to be the busiest year for Joseph’s company since its inception.  And scheduled as well was the exit of the original web designer and EIP “partner”, Dan Kavanaugh, who Joseph had just that year bought out-final payments being made near the time of the murders.  Given all these factors, it doesn’t seem all that extraordinary that Joseph would be revamping his accounting methods, and this would include how he used QuickBooks.

It is important to note that QuickBooks is only a viable avenue for theft if the target rarely looks at their bank account balance.  In essence, QuickBooks is an electronic checkbook.  So just as with theft by way of stolen checks, if the target notices the missing funds, the jig is up.  There would have been no reason for Chase to have any expectation that Joseph wouldn’t look at his bank balances daily.  Joseph’s company ran on money coming in and going out, constantly.  Joseph paid his vendors, usually only after he received payment from a client, so the flow of receivables/payables was a daily endeavor.  To successfully write fraudulent checks on Joseph McStay’s bank accounts, would have been virtually impossible.

And there was zero evidence of theft or embezzlement presented, only that of a change in usage of a program designed to be flexible and adaptable.  And as the changes were new, it is very probable that there were kinks to work out-and it is the hiccups in the new usage that might raise questions, but on close examination also appear completely unrelated to the murder of the McStay family of four.

BACKGROUND

Joseph (40) and Summer (43) McStay were also unconventional people, living life on their terms. Both children (Gianni-4 & Joseph Jr.-3) were had prior to the couple marrying. Joseph married once before, had an older son from that union. Summer’s marriage to Joseph was her first.  Gianni and Joseph Jr., her only children.  The delight she took in those children is evident in every picture taken of her with them. There were hundreds if not more pictures taken by Joseph–who I am going to guess, was the love of her life.  Summer was a classy, beautiful woman.  Spirited and opinionated.  And by all accounts an amazing mother.

Gianni and Joseph Jr. were given gentle entries into the world, within tubs of warm water–“water-births”.  The couple did not immunize their children, an issue of contention between Chase and Summer.  But Joseph and Summer clearly loved those children more than life.  The McStay’s new residence in Fallbrook was sparsely furnished at they completed renovations to it.  What filled that home immediately, though, were large replicas of castles, and toys could be seen in pictures taken-literally everywhere.  It was abundantly evident that these children were the center of their parent’s universe.

Summer formerly worked in real estate and was a stay-home mom in February of 2010. Joseph carved out a unique niche for himself in on-line water feature (water fountain) sales, and was able to conduct business largely from home.  He sold pre-fabricated water features through his company, Earth Inspired Products (EIP), until meeting welder Chase Merritt in 2007.  This appear to be the beginning of EIP’s ventures into designing and building larger custom water features for homes and businesses. And from the accounting presented at trial, it dramatically increased overall profits for EIP.

After years cramped in their two bedroom apartment in San Clemente, the McStays purchased a five-bedroom house in foreclosure in Fallbrook, Ca. in November of 2009.  The entire family slept in one room on inflatable beds, living out of suit cases as they renovated their home.  Had Joseph lived, 2010 would have been an exceptionally lucrative year for EIP-sales expected to exceed 500K.

The future required sunglasses.

CASE IN CHIEF

Back at prelim in June of 2015, the state claimed that Merritt could be directly tied to the murders and that:

1. The murders occurred in the McStay residence on February 4, 2010 between 6:47PM & 7:47PM
2. A futon cover used to package Joseph McStay came from the home
3. Headlights captured on a neighbor’s surveillance camera at 7:47 PM were those of Merritt’s 3700 Chevy truck
4. Chase buried the McStays in the Victorville desert Feb. 6
5. Chase drove the McStay Isuzu Trooper  to the San Ysidro border Feb.8
6. Chase returned to the McStay residence to clean the home
7. Chase did all the above because he had been fired by Joseph
8. Joseph fired Chase because he discovered that Chase stole money from him by way of Quickbooks
9. Chase was in deep debt due to gambling

• But, uh oh-there was no proof that the murders took place in the McStay residence, or that Joseph was wrapped in a futon cover missing from the residence. In fact, there is a question as to whether the cover was even missing. 
• There was no blood spatter found.  No smell of bleach as if the home had been recently cleaned.
• The state also waffled at trial to when these murders took place.  No one on the DAs team could quite make up their minds if the murders now took place the evening of the 4th or the morning of the 5th, or the afternoon of the 4th-far away from the home.
• The vehicle headlights captured in the “infamous” Mitchley video didn’t look like Merritt’s. And though the final decision made on that, after three witnesses gave testimony, was that Merritt’s truck could not be excluded-what did that prove?  I think there is a world of truck owners out here whose vehicle can’t be excluded either.
• Add to this that there were signs of life in the McStay home, AFTER that vehicle exists the cul de sac. There is the 7:59 check writing and the 8:28 phone call from Joseph’s phone, that pings off the tower Joseph’s phone consistently connected with when he was known to be home. (I’ve never understood how a lone-killer theory was ever reconciled with this.  It makes no sense that this crime was committed by one person, if you believe the vehicle caught on surveillance is that of the killer’s.)
• It could not be proven that Chase drove the McStay Trooper to the border on February 8. In fact, after Carmen Garcia from Metro Sheet Metal took the stand and testified to meeting with Merritt mid-morning in Asuza (hour and 1/2 from the border) on the 8th, the venture to the border seemed almost impossible, as the state also placed Chase near his home in Rancho Cucamonga by 1:30 that day.  Without an accomplice this feat seems ludicrous.
• And the suggestion that a cash-strapped man is going to spend hundreds to cab back from the border, also risking the memory of the driver regarding this unusual ride, is really a stretch on the part of the DA.
• The phone pings that were supposed to place Chase at the McStay graves, two full days after the family goes missing, actually placed him in downtown Victorville.  Chase does not recall why he was in Victorville that day, but he did have family he assisted in the area, and he wasn’t asked about his whereabouts on the 6th until 4 years later.
• DA Rodriguez at closing stated the prosecution had never claimed that Chase buried the McStay family on February 6th. So the million dollar question would then obviously be: Why if the 6th is not related to the crime, would it matter if Chase pinged in that region on that day?  Why spend hours presenting testimony around this?  Lots of people pinged in Victorville in Feb. 6th.  If no crime was being committed, then even absent a clear alibi, the obvious conclusion to reach is that whatever Chase was doing in Victorville, it wasn’t criminal.  Or related to these murders.
• Also a guilty man would likely have thought to contrive an alibi for all the times he was engaged in acts around a murder. But if we are innocent, we aren’t going to do this.  
• All the state really had left once their forensic case was destroyed, was that change  in QuickBooks usage (which they framed as theft) and an assertion that Joseph fired Chase.  This was motive, they contend, for Chase to brutally murder his friend, and that friend’s family.  But where is the proof Joseph fired Chase?
• The only evidence given to support this assertion was hearsay from two McStay family members who were contradicted by other witnesses. 
• An email sent from Joseph to Chase on February 1, the Monday before the family disappears is cryptic.  But even if it indicates a demand for payment, as the DA suggests, that amount would not have been 42K as the prosecution contends, but 16K, an amount that was common in the financial relationship between Chase and Joseph.
• As testimony at trial by a forensic accountant showed, Chase and Joseph often owed each other amounts in excess of 10K.  It was how that business worked. Sometimes Chase would start a project absent his fee, and Joseph would owe him. Sometimes Chase would receive his full fee, prior to an invoice being paid in full, and Chase would owe Joseph. The ledger between the two shows that each, at different times, owed the other as much as 20K.
• The Feb 1, 11:42AM email that is theorized to have enraged Chase to where he would within an half hour of receiving it decide to commit check fraud, and by the end of the week, kill an entire family-was written on the same day as the QuickBooks activity began, that is deemed incriminating to Chase.  The reason Chase is given credit for the entries on QuickBooks is that there was no computer activity in the McStay residence that day.  Question is then, if there was no computer activity in the McStay home on Feb 1, from what computer was the 11:42 AM email sent?  
• The idea that Chase was stealing when he wrote checks to himself is debunked by the fact that Joseph had also started writing computer checks for the first time. The check numbers Chase used were from a different series, and there was also a very clear order to how those checks were written. If Chase is stealing, why be so precise? And important to add is that every check written by Chase was for the amounts owed him. Chase didn’t need to embezzle what he was owed. Clearly this fact alone indicates that this computer check writing was initiated by Joseph McStay. 
• There are many problems with the theory put forward by the DA in regards to what occurred on February 4th.  One of the major hiccups is, that if Joseph did fire Chase suddenly at lunch, why does Joseph phone Chase 7 more times that afternoon (once while at his computer viewing plans they were working on for a custom water feature), but DOES NOT change his QuickBooks password, or alert his bank to fraud or put a call into a welder as a replacement for Chase?
• And why would Joseph demand immediate payment from Chase anyway? The easiest manner to recoup the 16K debt, is to do what Joseph always did, delete it form monies he owed Chase.
• Chase did have conflict with Summer, but, it’s important to note that Summer had conflict with a lot of people.  She fought with a friend the week of the disappearance. Michael McStay, Joseph’s brother had, had a significant falling out with Summer the previous year, which might explain why the brother, three months after the McStays had moved into their new home, had never visited, and only saw the home after the family disappeared.
• The irony, is that when this case was first brought to the public, investigators couldn’t produce a motive, by the end of trial, motive was all the state could muster. 
• DA Mike Ramos: “No Motive”
• SBC Sheriff’s Announcement of Merritt Arrest: 4:02 mark

For reasons incomprehensible to me, the jury bought it.  It also seemed to slip past this jury that the state was about as inconsistent with their narrative as one can be, and still claim to have a narrative.  By closing statements, DAs were throwing out multiple, contradictory theories of the crime, and didn’t seem able to make up their mind as to when or where or even how the murders took place.

• Dan Kavanaugh, who was soon to be ousted from EIP, but had helped initially set up the website, certainly engaged in as much, if not more suspicious activity around the time of the murders, than Merritt.  Kavanaugh appears to have had some financial strain of his own, and questionable actions around the time of the disappearance-altering Joseph’s PayPal password, as one example-but he managed to evade real scrutiny, never taking the stand, as he couldn’t be found. And, personally I feel Kavanaugh had way more motive.
• But, like Merritt, I don’t see the actual evidence that connects him to all the moving parts in this case. And also, like Merritt, no co-conspirator was identified-and I simply do not believe this crime was carried out by one person.

So for now, all I feel certain of is that Chase Merritt is innocent.

 

And the McStays still don’t have justice.  In fact, it’s even worse than that, no one now, (aside from, perhaps a thorough habeas attorney) is even going to look for the real killers. And the DNA that was so carefully mined by the defense-DNA profile generated by True Allele-has yet to be placed into CODIS.  Even if you believe Merritt is guilty, this seems like a no-brainer.  Get the DNA into the system.  Maybe it will identify an accomplice.  Maybe myself and others who believe in Merritt’s innocence will be proven wrong with actual evidence.

For now, I hope Merritt is vindicated soon enough that he can salvage some remnants of his life.

Our criminal justice system is a hot mess, and this case is a poster-child.  Family and friends of the victims may feel elated for the moment, but no doubt in time they will join the ranks of others who have discovered years later that the justice they placed their faith in was nothing more than a fiction.