Prosecution, defense squabble over Kavanaugh and length of trial

The defense team for Charles "Chase" Merritt, accused of killing a Fallbrook family of four in 2010 and burying their bodies in a San Bernardino desert, asked for a continuance due to what was described as a "condition" suffered by attorney James McGee.

"When we met with the court in chambers, we were fully committed to me going forward if Mr. McGee, that's kind of what we've been planning," attorney Rajan Maline said in court Tuesday, May 7. "But, according to, without getting too detailed into Mr. McGee's condition, part of the issue is it started with going over the interview that's going to be played, whatever portion that may be, Mr. McGee wants to weigh in on that. It's an important issue.

"Also, in talking with Mr. Merritt about upcoming witnesses, I know that he's very insistent, and rightly so, that Mr. McGee be present and participate in that and I can't argue with that," Maline said.

McGee chimed in on the ask.

"I think it's in the best interest of my client to have effective assistance of counsel if the trial is continued until I can feel a little better," McGee said. "I came back a little too early, took me about 30 minutes to figure that out."

Superior Court Judge Michael A. Smith said he wanted the defense to at least continue with Detective Edward Bachman and Dr. Leonid Rudin and later determine whether a continuance is needed to allow McGee to recover in a predicted length of time or whether Maline would have to take over the case.

"Your honor, at what point do we actually bring in the jurors and find out how many we're actually going to lose by doing that?" prosecutor Melissa Rodriguez said. "I know that we already have a notice that we lose one of them by the very first week in June. I'm afraid that we're going to lose way too many people if we do that."

"I just want to be heard. I can't speak to Mr. McGee's condition, because I don't know anything," Sean Daugherty, supervising deputy district attorney for San Bernardino County, said. "I can say that two weeks ago, the same representation was made by Mr. Maline, that he'd be ready to roll. And frankly, Dr. Rudin is Mr. Imes' (San Bernardino County Supervising Deputy District Attorney Britt Imes) witness, and Mr. Imes isn't here next week so one of us will be ready to cross-examine him. He's had two weeks, plus numerous dark days, Friday, Monday, to prepare for this witness."

The prosecution also complained about a promised witness plan from the defense and referenced Marsy's Law and the strain they said the families of the victims have endured with the long, delayed trial.

"I think it would be more frustrating for them to convene expediently if the end result is a mistrial or a reversal," Judge Smith said.

"I just wanted to put in the record," Rodriguez said.

"I understand that and I am sensitive to that," Judge Smith said. "I'm looking at the long-term result for them as well as everyone else as opposed to the short-term expediency."

Bachman was called to the stand to testify about voicemails on Joseph McStay's phone and his reports.

"You're asking me some questions that I testified to in January?" Bachman said.

"What about Dan Kavanaugh, did he call and say that he left messages?" Maline asked.

"I don't specifically remember what Dan told me, I mean, I obviously talked to Dan Kavanaugh, but about that specific incident, it's not on this report, I didn't have any preparation for this testimony," Bachman said.

The defense team has contended that investigators ignored Kavanaugh as a possible suspect in the case, and they said he had threatened the family due to his dissatisfaction with being bought out of Earth Inspired Products Inc. by Joseph McStay.

The McStay family – Joseph, Summer and their two young boys, were last seen alive Feb. 4, 2010, and relatives reported them missing a few days later. Then, in November 2013, the skeletal remains of the four family members were discovered in shallow graves by a motorcyclist in the Mojave desert.

Records show that all four were beaten to death, most likely with a sledgehammer owned by Joseph McStay.

Prosecutors maintained that greed was the basis for Merritt committing the murders and said they will be seeking the death penalty in the case.

The jury had the opportunity to view Merritt's truck, Wednesday, May 8, but it was not operational and jurors were not able to see the lights on with the truck, which has been one of the key evidence issues in the trial based on video recorded by a neighbor near the time of the family's disappearance.

Before they headed outside, the courtroom exploded in a discussion about Kavanaugh and whether the prosecution had ever subpoenaed him.

"The jury could certainly wonder, well, why didn't they call Kavanaugh?" Judge Smith asked.

"But the court would obviously instruct them that they are not to consider things outside the scope of the evidence they heard in this trial," Britt said. "Including whether one side or the other called a particular witness or not."

Judge Smith said he was inclined to allow the defense to put on evidence they attempted to locate or attempted to serve a subpoena on certain individuals.

"Really?" Rodriguez responded.

"Assuming either side had Mr. Kavanaugh in pocket and brought him in here," Imes said. "Given the accusations of the defense, what do you think a reasonable person in Mr. Kavanaugh's position would do? He'd invoke his fifth amendment privilege which would make him unavailable to both sides. Right?"

"There are reasons we didn't call him and those reasons are protected by work product," Daugherty said.

The judge ruled to allow investigator Gary Robertson to testify about his attempts to find Kavanaugh and also ruled that he was going to allow McGee until May 21 to find out whether or not he was able to proceed.

Defense investigator Robertson testified he tried to find Kavanaugh in 2017 to serve a subpoena duces tecum but couldn't find him.

On cross-examination, Robertson was asked if he looked for Kavanaugh in Hawaii. He responded that he hadn't.

The jury also saw more of a video that Merritt did with detectives, Oct. 22, 2014.

Then in another break in testimony, Imes revisited the allowance for McGee to recover and told the court that he had seen Magee at a social event over the previous weekend.

"He was perfectly fine, drinking and dancing," Imes said. "I'm starting to question that these unprepared with the video, getting a witness here, repeating fact, after fact, after fact, that is cumulative. And the defense's cross-examination of it, is starting to appear as a stall tactic, intentionally done."

"We are a point where we are going to finish, one way or the other on the 21st," Judge Smith said.

Maline accused the prosecution of going through a routine "like cackling schoolgirls accusing us of misconduct."

Court was scheduled to resume Monday, May 13, after press time and would be dark until May 21.

Jeff Pack can be reached by email at [email protected].