Merritt opts not to testify in McStay family murder trial, both sides rest cases

Closing arguments in the trial of Charles "Chase" Merritt for the deaths of the McStay family of Fallbrook were set to begin Tuesday, May 28, after press time, bringing a possible end to a trial that has lasted almost five months.

The trial of Merritt, who did not take the stand, came to a heated conclusion Thursday, May 23, when both sides rested their case after several days of bickering between the prosecution and defense teams and a motion one day earlier from the defense for dismissal of charges, a mistrial and removal of San Bernardino County Supervising Deputy District Attorney Britt Imes.

"The conduct of not only Mr. Imes but all the prosecutors in this case, because we believe that they all know what was going on, can only be described as reprehensible," defense attorney Rajan Maline said Wednesday, May 22. "There's no other way to describe it. They're seeking the death penalty; they're seeking to execute our client on a marginally thin circumstantial case."

Maline said the prosecution's planned key video expert witness, Dr. Leonid Rudin, discovered conclusions that he said would have been helpful to the defense, but prosecutors unlawfully did not disclose those findings to the defense team fast enough.

The prosecution said they sent an email to the defense team back in February telling them that Rudin would not be their key witness after all.

They said Rudin wasn't able to "validate the overall length of the suspect truck in the evidence video compared to its known length."

Maline said cross-examinations and questions might have been different if the defense team had that information sooner.

"I do believe Mr. Merritt was prejudiced by that lack of information," Maline said. "We are requesting the dismissal of all the charges. Alternatively, a mistrial, because in reality, this was post-conviction, and the remedy for Brady violations is a reversal. Alternatively, I think that jury instruction is appropriate. At the very minimum, Mr. Imes should be removed from this case, if not all the prosecutors – all three of them.

"And we're asking for Dr. Lisio's testimony to be stricken and not to be considered by the jury.

"By withholding that information, they made the plaintiff feel unlevel, they made it unfair. They denied our client 14th Amendment due process rights. They created an atmosphere of unfairness and in light of the fact that they are prosecutors, they made a mockery of it," Maline said.

Supervising deputy district attorney Sean Daugherty refuted those claims.

"They had that information on Feb. 15 and it was apparent from that email that Rudin was changing his testimony or was changing his opinion or asking questions," he said. "At that point, they were invited to consult with Mr. Rudin. They didn't do so.

"First of all, the remedy certainly is not dismissal. Certainly not recusal. If there is any prejudice as they claim there is and we don't believe there is, we'd be happy to get ahold of Mr. Lisio and get him down here for further cross-examination. I don't believe that this was prejudice, I certainly don't think there was suppression," Daugherty said.

Superior Court Judge Michael A. Smith ultimately denied all of the defense team's motions.

Defense attorney James McGee, back from missing days due to an unknown "condition," was not pleased with the judge's ruling.

"To think that there was no prejudice, no suppression and no violation is perplexing and just amazing to think that this is the state of capital prosecution in California," McGee said.

As McGee continued to argue the decision and an incident involving a meeting between the defense team and Dr. Rudin. He claimed Imes wouldn't leave the room, to which the prosecution's table shouted was a lie.

"You're already shown to be a liar, so let's not go down there," McGee shouted at Imes.

"Mr. McGee, if you have comments on a legal argument regarding Mr. Rudin, you can address them in the court," Judge Smith interjected. "If you want to argue with Mr. Imes, go out in the parking lot."

McGee apologized to the court and Imes and continued to argue, saying he takes issue with having to deal with witnesses who don't want to cooperate with the defense.

"With this being a capital case, that should never be allowed to happen and that is what's happening in this case," McGee said. "It's very disappointing for someone who believes in the justice system to think this is acceptable, this is OK."

Maline also criticized Judge Smith for admonishing the defense team during the trial in front of the jury and suggested that he was acting "as an advocate" for the district attorney during the trial.

"For the court to act as his advocate on this issue is very disappointing," Maline said. "It puts us in a position where, how are we going to get a fair trial? How is it possible when the court is acting as an advocate and looking for ways to justify what they've done?"

Rudin was called to the stand Wednesday, May 22, to testify at the request of the defense.

Later in the day, the state called Lauren Forest-Knowles to the stand. She was Dan Kavanaugh's girlfriend during the time the family disappeared, and she testified that she was in Hawaii with Kavanaugh from January 2010 through Feb. 17, 2010, and was with him every day.

The state showed her boarding pass, and Forest-Knowles testified that Kavanaugh was seated next to her on the plane home.

She went on to testify that she last saw Kavanaugh in 2012 and that he had messaged her on Facebook a year and a half ago, but she did not respond.

Maline handled the cross-examination of Forest-Knowles for the defense and questioned her about emails between her and Kavanaugh, Jan. 28, where she asked him when he "was coming back."

"You said you were with him at all times, correct?" Maline asked.

"I was with him every day," Forest-Knowles said.

"Do you recall what you were asking him where he was coming back from?" Maline asked.

"No, but it was probably something like the store," Forest-Knowles responded but said she didn't remember.

Maline asked Forest-Knowles if she recalled whether she remembered her mother being contacted by investigators that wanted to speak to her and why she didn't respond to those requests.

Forest-Knowles said she wasn't given any contact information.

Maline asked whether she told her mother she was afraid of Kavanaugh, the prosecution objected, and Judge Smith sustained the objection.

"Are you afraid of Dan Kavanaugh?" Maline asked over objections.

"Overruled, she can answer," Judge Smith ruled.

"Um, he makes me uncomfortable," Forest-Knowles said.

Maline confirmed with Forest-Knowles that while in Hawaii, she and Kavanaugh didn't have any money and asked if when they got back to the mainland Kavanaugh was "spending money frivolously."

"I believe so, yes," Forest-Knowles.

Maline suggested to Forest-Knowles that when they got back, the two were going out to clubs getting bottle service and that Kavanaugh was a DJ.

"Yes," Forest-Knowles said.

Detective Edward Bachman was called to the stand by the defense on Thursday, May 23, and was questioned by McGee regarding awards given to the investigation team following their work on this case.

Later Thursday, Judge Smith asked Merritt, "What's your decision, do you want to testify or not?"

Merritt said no.

Closing arguments were set to begin at 9 a.m. Tuesday, May 28, according to Judge Smith.

The McStay family was last seen alive Feb. 4, 2010, and relatives reported them missing a few days later. Their Fallbrook home appeared to indicate they left in a hurry that day with fruit left out and clothes scattered about the house.

Detectives thought initially that the family had gone on a trip and would return after searches on one of the family's computers showed a web search about documents needed for children traveling to Mexico.

Boosting that theory was the discovery of the family's Isuzu Trooper was found parked in a strip mall near the Mexican border and the San Diego County sheriff's investigators then turned the case over to the FBI.

Over the course of the next two years, the case gained national attention with tips coming in from all over the United States and the world.

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.

At that point, the investigation was taken over by the San Bernardino County Sheriff's Department. Investigators announced the arrest of Merritt Nov. 7, 2014, and charged him with four counts of murder.

Investigators believe that the McStays were killed at their home and transported by Merritt to the San Bernardino desert.

In November 2014, a defense attorney said Merritt is in poor health and wishes for a speedy trial. Then in January 2015, said he wanted to represent himself, claiming to have only six to eight months to live and he can't afford an attorney.

It wasn't until Jan. 7, 2019, that the trial began.

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

Detectives said Merritt deposited checks worth thousands of dollars from McStay after the family went missing, using QuickBooks and even called QuickBooks from his cellphone, identifying himself as Joseph McStay and asking to transfer the money in the account.

They have indicated they will seek the death penalty in the case.

Defense attorneys have said that investigators zeroed in on Merritt early on the case and never looked at anyone else. The defense repeatedly attempted to point the finger at Kavanaugh, who they said was overlooked by investigators.

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