Defense in McStay family murder trial will not present penalty phase evidence

Attorneys for Charles “Chase” Merritt said Tuesday they do not plan to call witnesses in the life-or-death penalty phase of Merritt’s trial that started the day after he was convicted of murdering the four-member McStay family of Fallbrook.

The defense team said it instead planned to appeal to any possible lingering doubts held by the jurors who convicted Merritt in the circumstantial-evidence case.

The same panel will decide whether to recommend life in prison or death by lethal injection for Merritt. The penalty phase is being heard in the downtown San Bernardino Justice Center courtroom of Judge Michael A. Smith.

“Our client didn’t do it, they got the wrong guy, they got it wrong, and therefore they should have a lingering doubt about what happened,” co-defense counsel Rajan Maline said outside court. Jurors can consider lingering doubt in making their decision on which penalty to recommend, he said.

That strategy meant not cross examining the prosecution’s first witness, Susan Blake, the mother of family patriarch Joseph McStay, who on Tuesday tearfully recounted the loss of her son, daughter-in-law, and two small grandsons.

“The hurt will never go away…you miss their sounds and their laughter, and now I go to a grave site and talk to them. I’ll never, ever be the same. Never.” she said.

“We don’t disagree with anything that is being said,” Maline said outside court.

“We agree with the loss, we agree that Joseph was an amazing person…so there would be nothing to talk about, in terms of questioning,” he said.

Merritt, 62, was convicted Monday for the February 2010 slayings of former business partner Joseph McStay, 40; his wife, Summer, 43; and their two children, Gianni, 4, and Joseph Jr., 3 who had disappeared from their San Diego County home. The family had just moved there from San Clemente.

Their bodies were found nearly four years later in two shallow graves in the Mojave Desert near Victorville. A three-pound sledgehammer investigators said was used to kill the family was found buried with them.

Merritt was arrested a year later, in November 2014. Prosecutors said he killed McStay to loot his business partner’s bank account. The defense said Merritt and McStay were best friends and Merritt was using the money to meet business expenses after McStay disappeared.

The prosecution on Tuesday presented photos and videos of the McStay family. Blake watched in court a home video narrated by Joseph McStay of the family at play, with the youngest son helmeted and in a bike safety seat on the back of a beach cruiser ridden by mother Summer McStay,  The short video has delighted shouts and laughter. Blake broke down in tears

“It’s hard to hear their voice….they were little boys in a fantasy world…they didn’t know fear, they didn’t know to be scared, they didn’t know hurt. They were just in this fantasy world, and we’ll never get to see them grow up,” she told prosecutor Melissa Rodriguez.

Later, Joseph McStay’s brother Michael said how much he admired his older brother, who helped him in business and in life, calling him a “kind, strong Southern gentleman surfer,” a nod to Joseph learning to surf while a teen in Houston. Michael McStay also was not cross-examined.

Before jurors entered court to hear testimony, defense attorney Joseph McGee told Smith, “We do not have any witnesses or evidence to present as part of our mitigation presentation.” McGee said all parties on the defense team, and Merritt, had entered into a written agreement on the strategy.

Smith said he would meet with Merritt and his attorneys in private about the change, and court watchers reported he did after Tuesday’s testimony. Maline said the defense will use its opening statement and closing argument to address lingering doubt with the jury.

Lingering doubt is any remaining doubt a jury has, even if the panel has found someone guilty  beyond a reasonable doubt.

“That strategy can seem risky, but sometimes it makes sense,” said Loyola Law School of Los Angeles professor Laurie Levenson. “The downside is that the jury didn’t see doubt when they convicted.”

But there could be residual doubt to exploit, she said, because the details of the deliberation can’t be known.

Court resumes at 1:30 p.m. Tuesday, June 18.