McStays Episode 6: Life or Death

0:00Hi, this is Ashenshing here with another weekly episode of our latest True Crime series from 2020 and ABC audio. What happened to the mixed days? Remember you can get new episodes weekly on Tuesdays if you follow what happened to the mixed days on Apple Podcasts, Spotify, Amazon Music, or whatever you're listening now. Or you can hear the entire series right now, add free by subscribing to 2020 True Crime Plus on Apple Podcasts. Click the link in the description to start your free trial today. Now here's the next episode of what happened to the mixed days. When fall comes back around, there's a sense of a reset. And new pieces from Lululemon's fall drop are an inspiration to push your goals and elevate your routines. As your calendar fills, easy to layer styles meet the demands of your day. And as you challenge yourself to try even more, versatile sets transition with you. The Lululemon fall lineup brings new levels of comfort and confidence, whether you're starting something fresh or starting something over. Check out the latest arrivals in store and on Lululemon.com now.

1:06In 2019, more than four years after his arrest, Charles Chase Merritt was finally headed to trial. He'd been charged with killing the mixed days. Joseph, Summer, Gianni, and Joseph Jr., he'd pleaded not guilty. Merritt would be tried at San Bernardino Superior Court, an imposing and sleek building downtown. It's shiny, reflective facade, reminiscent of the Waterfalls Merritt built for Joseph. It had taken more than five years from when the mixed days remains were discovered to the start of this trial, a long road for the victims loved ones. Outside court and after a pretrial hearing, Joseph's brother Michael McStay spoke to local TV station KBC. Michael says he was confident that the Ortees had the right guy. Finally, somebody is going to have to take responsibility for what they did to my loving family.

2:07And I want to see him get what he's not coming to. Joseph's mother Susan Blake was there too. I did want to stand up and I did want Chase to look at me in the eyes. I wanted him to see us in the pain we've been through and that now we're back for justice. With Chase Merritt facing four charges of murder in the first degree, the death penalty was on the table. He was fighting for his life. With the jury decided Merritt was the one who killed the mixed days. From ABC Audio in 2020, I'm Ash and Singh. And this is what happened to the mixed days. Episode 6. Life or Death. We're not supposed to show our emotions. We're supposed to be professional at all times. And I almost lost it.

3:07I actually had to turn around and catch my breath and take a minute. Great I'm is a district attorney with the county of San Bernardino. He was one of the prosecutors who presented the case against Chase Merritt in court. And I'm told ABC News in an interview last year. And in the nearly 30 years he's been a prosecutor. The mixed day family murders was the most personal case he'd worked on as a dad. The emotion really hit him, he said. When he was questioning a crime scene specialist on the stand, he put up a picture of the family's Asusu Trooper from the jury to see. It was Joseph Jr.'s car seat. It was the same car seat that I put my kids in. It was a personal connection that I don't think I ever had with any of my kids. For I'm's, the mixed day murder case stood out for another reason too. The most difficult case in 27 years. I'm said there were several reasons the mixed day case was such a difficult one.

4:11It was the nearly four year gap between the murders and the discovery of the bodies. The multiple jurisdictions involved. The enormous amount of public interest, which generated a huge volume of tips for law enforcement to handle. And I'm said lack of direct evidence against Mary. We would have loved to have had an identifiable murder scene with physical evidence. Whether it be blood or fingerprints or DNA. We would have loved to have had an eyewitness. We would have loved to have had a neighbor have heard a scream in the night to at least pinpoint when it happened. I mean I could probably go on and on. Instead I'm said what he and his fellow prosecutors had was highly circumstantial evidence. Facts that didn't directly link the defendant to the crime. But they argued taken together, painted a picture of Mary being the one who killed the family. I'm said Mary had a means, motive, and opportunity.

5:17At trial, Merritt's defense team argued that the state's entire case was based on confirmation bias. Defense attorneys said authorities decided Mary was their guy. Twisted facts to build a case against him. And ignored other facts that didn't fit. Raj Malin, who'd represented Merritt in court, was confident the state didn't have what they needed to prove their case beyond a reasonable doubt. This case was all doubt. In fact, there was no evidence linking Chase to the killing of this family. Here were two of the arguments he made in Merritt's defense. One, he argued there was no evidence that the murders took place in the McStay's Fulbroke House as prosecutors alleged. And two, he argued that the vehicle leaving the home on the day the family went missing was not Merritt's truck, which prosecutors also alleged. So first, the House.

6:17Defense attorneys told the jury, if the McStays had been bludgeoned in the home, you'd expect to find a gruesome, messy scene. So, where was the blood? It was none, they argued. Not a drop, not a trace, not a spec. The state's theory of the case was that Merritt had killed the McStays at home. They argued that there was evidence at the gravesite to suggest that summer had been home giving the boys a bath around the time the family was killed. Prosecutor Brite Eims again. There was one very distinct toddler type bath towel with a hood that's kind of shaped like it has an animal face to it, was found in the grave. There was other bath mats and material consistent with the bath robe found in the grave. And as for the matter of blood, prosecutors argued Chase Merritt cleaned up the home after killing the family. It told the jury that it had ample time to do so.

7:20Who was in control of that crime scene was the defendant. So the fact that there was no evidence located could in part be attributed to the fact that the defendant had time to clean up whatever mess he had made or hide whatever evidence he needed to. In his interview with ABC News, Eims pointed out. Unfortunately, there's no forensic evidence that says that the murder actually happened in that home. Zero forensic evidence and we never contended that we could prove that. To the jury legally, I don't have to prove the where, when, or how. Or even necessarily the why. I just have to prove the who. And then, there was the truck. Remember, it was a vehicle scene on the neighbor's security camera footage leaving the McStay's home the night the family went missing. Prosecutors argued this was Merritt's boxy white utility truck. And then it placed him at the scene of the crime.

8:20It had characteristics consistent with being Merritt's truck, including the shadows that are cast by the brake lights, the height, width, and placement of the headlights. In court, that grainy, black and white 9-second clip became a key piece of evidence. Attorneys played it and dissected it over and over. Expert witnesses analyzed 3D models of Merritt's car doing a virtual drive out of the McStay's driveway. Identical to the movements in the surveillance footage. To see if Merritt's car matched up. The defense's position. This wasn't Merritt's truck. They put on their own witness, an expert who is originally supposed to testify for the state, but who changed his mind wound up testifying for the defense instead. The expert testified that based on the data he had, he couldn't conclude that the truck in the video matched Merritt's.

9:22Here's defense attorney Raj Malin. We clearly were able to show that Chase's truck was excluded. Prosecutor Bridheim's disagreed. No one could rule out that it wasn't Merritt's truck, but no one could conclusively say in fact it was. Beyond the house and the truck, prosecutors presented other pieces of evidence against Merritt. The centerpiece of their case was the defendant's cell phone records, particularly of note to prosecutors. The painting of a tower in the desert on a crucial day. The state brought an expert witness to interpret various maps, call records, and diagrams. In the expert testified that on February 6, 2010, Merritt's phone pinged a tower roughly a mile away from the gravesite. Prosecutors argued that paying plays the defendant near the McStay's gravesite just two days after the family disappeared.

10:22But the expert also testified that cell phone data can only give you a general location of where someone has been. Not an exact one. Merritt's attorney Raj Malin again. The prosecution's expert testified that not only can you not use cell tower evidence to get location information to be used accurately, it was never designed for that in the first place. It just so happens that law enforcement started to use that to kind of generally show where people are. But at the end of the day, he conceded that you can't certainly can't say that somebody is somewhere because they ping off a tower. Prosecutor Brayhimes. Our expert never claimed to have been able to what's called geo-locate the user of the device based on the technology and data that was available from 2010 records. All we know is that his phone pinged on the sixth on a tower that overlooked the gravesite. The reason defense lawyers gave the jury for why Merritt was in the general area of the cell tower was what he himself had told investigators.

11:28If his phone pinged a tower in the desert, then he must have been visiting his sister who lived in the area. Prosecutors called Merritt's sister Juanita Merritt to the stand. To tell the jury what she told authorities just a few years prior, Merritt hadn't been out to visit her in February 2010 when the mistakes went missing. Here's Juanita from that police interview that you heard in the last episode. Chase at that time when he was with Joe never came up here. That's why I was going to ask, can you remember it all in some... You didn't even hardly visit. I can remember one time he visited. About how long before... So I mean, in five years I hadn't seen him. But when Juanita took the stand at trial, prosecutors were in for a surprise. How often do you think that you would see your brother around that time frame? I saw him quite often.

12:29Do you remember telling the detective that you hadn't seen him probably for about five years? No, I don't think so. I wasn't even going to write my own own talk to you detective. Juanita testified that back when the detective came to her house and interviewed her. She'd recently had surgery and was heavily medicated. She testified that she was, quote, not in her right mind. She said she saw her brother all the time back then, sometimes at her house. When ABC News asked prosecutor Brit Eims if Juanita marriage reversal was harmful to the state's case, he said simply, no, we had our prior statement. As in, the original statement Juanita had given police. Here's Detective Ryan Smith. The interview that Juanita and I had was all recorded and that was able to kind of disprove her assertion.

13:33The prosecution also pointed out that Marit's DNA was found by police on the steering wheel of the McStay's Isuzu Trooper. The state argued that the presence of Marit's DNA on the driver's side was evidence that Marit drove the SUV down to the Mexico border. Marit's attorneys argued the DNA was transferred DNA. They claimed Joseph had gotten trace amounts of Marit's DNA on his hand from something like a handshake, then transferred it to the steering wheel of the Trooper. The state's DNA expert on a cross-examination didn't rule out the defences claim. He testified that it was reasonable to conclude the DNA could have been transferred. But the state argued that the quantity of Marit's DNA was inconsistent with transferred DNA. Prosecutor Brit Eims again. The problem with that is it would have expected to be an immuniscule amount. The results were actually greater than summer, who was a regular driver of the car.

14:35So it would be inconsistent with trace DNA. Prosecutors also argued Marit had a motive. They said the murders were driven by greed. The state made the argument you've heard earlier in the series. The chase Marit, while claiming to be Joseph's best friend, was writing checks from the waterfall business and taking money from him. That Marit had been overpaid for projects at work and owed Joseph tens of thousands of dollars. That and he had a gambling problem. The state contended that Joseph had discovered the checks and fired Marit on February 4th. The day the family went missing. Prosecutors argued that Marit then went to the McStay's Fulbury cone to confront Joseph and killed the McStay's there. Marit's defense team denied it all. They're taking money from Joseph, the debt to Joseph, the gambling problem, the firing,

15:36the confrontation at the McStay's home, the bad blood between the two men, and of course the murders. Marit's defense attorney Rajmaliin told ABC News, Joseph and Marit's success was inextricably linked. They literally adored each other and there was no hint that it was going wrong. These two were going to the moon and neither one of them could have done it without the other. Marit's ex-Cathy Jarvis took the standard trial and testified that Marit was home in Rancho Cucamanga the night of February 4th. The night the McStay's went missing. She said she remembered Marit receiving a call from Joseph that night, but not picking up. On the stand, Kathy testified that back when she'd been interviewed by police. She conceded that maybe that call happened on a different night. The state argued that Kathy couldn't have seen that call come through Marit's phone because they said his phone record showed his device was off at the time.

16:43He didn't register that call. Prosecutors argued Kathy was misremembering that she did see a call. But it happened on a different night. They questioned her on the stand. We do see an opportunity or you have an opportunity to look at some other calls that are heard. Right? Right. And it's your testimony today that you were not mistaken about that at all. That it was not mistaken about the phone call before. Correct. That's correct. In an ABC News interview last year, Kathy took the issue with prosecutors. They're making it seem like because I love him so much. I'm going to lie for him. And all I was there to do was tell the truth. I told the truth and they twisted the truth into something that fit their narrative. When it was their turn to present their case, Marit's defense team had their own theories about what might have happened to the mixed days.

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19:59Verdi, directed by Michael Scholealter. Made it are 179.00.00.00. Dr. Brosekane. Merritt's defense team argued that in their own investigation of the mixtape's gravesite, they found three different DNA profiles on Summer's bra, underwear, and on the material that was used to tie up Joseph. The defense claimed none of the DNA profiles match Chase Merritt. That they matched someone else. They challenged the state, put these three profiles through COTES, the FBI's DNA database, and see who they belong to. Merritt's defense attorney, Raj Malin. If they really wanted justice, if they really wanted the truth, they would run those profiles in COTES. Prosecutor Bridhimes. There was no DNA of other individuals found at the gravesites. It's just a total misrepresentation of what the science is. Prosecutors claimed there wasn't enough DNA for a full scientifically valid profile.

21:02That would either allow testing that would exclude Chase Merritt, or would lead to anyone else. Merritt's attorneys claimed authorities had blinders on when it came to their client, arguing that they should have given more serious consideration to other scientists. Namely, Dan Kavanaugh. Joseph's business partner and the web designer for their waterfall retail site. Remember, authorities had confirmed Dan's alibi for the time the mixed days went missing and cleared him of any involvement in their deaths. But still, at trial, defense attorneys argued there was plenty of evidence against Dan, starting with the new allegation that they claimed pointed a fake statement. Pointed a finger at him. According to prosecutors, one's trial was underway. A woman by the name of Tracy Riccobene had approached their office. In a recorded interview, Tracy alleged that Dan had confessed to her that he had killed the mixed days.

22:04I have a full detailed condition. If you want to know exactly how they did it, click the detailed account on that name. Detective Ryan Smith from San Bernardino Sheriff's Department told ABC News that investigators looked into her allegation, but ultimately dismissed it. None of the things she said caused Kavanaugh's alibi to come into question. There was no new investigative leads that we could glean from her because at that time, we knew Kavanaugh was in Hawaii. The defense did raise Tracy's allegation against Dan in their opening argument, but in the end, they decided not to call her to testify and not introduce her interview in evidence. The judge also strictly limited what allegations the defense could raise against Dan Kavanaugh, who was neither accused nor on trial. In an interview with ABC News last year, Dan said he knew Tracy. She was a friend, he said.

23:08When asked if he ever confessed anything to her, Dan denied it. No, that's a joke. He said pointing the finger at him was marriage attorneys grasping at straws. I mean, he had nothing else to defend the guy with because the guy had so much mounting evidence that he did it. So then the defense is like, well, this other guy did it though. At trial, prosecutors dismissed the defense's attempt to point a finger at Dan because he had an alibi. Prosecutor Bridhimes. The problem with attempting to say that Dan Kavanaugh was the killer was that we had very concrete proof that Dan Kavanaugh was nowhere near San Diego, let alone the continental United States at the time of the disappearance. But the defense challenged Dan's Hawaii alibi, married to Turning Raj Maline. The best they were able to do is present a plane ticket that he purchased. It doesn't mean he flew. It means he purchased.

24:10Show me that he got on a plane. Prosecutor Bridhimes said investigators did check with the airline and TSA. They didn't get documentation, he said. But they got a verbal confirmation that the ticket was used. At trial, to further shoot down the defense's claim, they called Dan's ex-girlfriend to the stand. The woman who'd taken the trip with him to Hawaii when the mixed days weren't missing. Her testimony backed up Dan's alibi. His girlfriend was with him in posting pictures of all of them from Hawaii on her Facebook page, simultaneously with them being there. Dan said the experience of having married defense team point of finger at him was unsettling. Not very pleasant and then they're running your name through the dirt online. That could potentially affect your relationships, your business and all that. So that was troubling. In their closing argument, prosecutors told the jury, you got several pieces of evidence against Chase Merritt, which must be looked at collectively.

25:19Because they argued, if you look at all the circumstances together, there's only one reasonable conclusion. Chase Merritt killed the McStay family. And prosecutors argued, Joey Jr., and Gianni, just three and four years old at the time, had been collateral damage. Killed because, if it came to it, boys would have been able to identify Merritt as the person who killed their parents. In front of the jury, Brit Himes emphasized the cruelty of the murder of the youngest McStays, saying, quote, it was blow after blow after blow to a child's skull. As he banged the sledgehammer, the alleged murder weapon on a courtroom podium. Prosecutors reiterated Merritt had the means, motive, and opportunity to commit this quadruple homicide.

26:19In the defense's closing, Chase Merritt's attorneys reiterated there was a total lack of physical evidence tying the defendant to the crime. They alleged the state, in Nord facts and witnesses, that didn't fit their version of events, and accused them of concocting a false story based on who Merritt is as a person and businessman, and not whether he had anything to do with these four deaths. Prosecutor Brit Himes told ABC News that the jury arrived at a verdict on a Friday, but agonizingly for the attorney. The verdict wasn't read that day. Instead, the judge sent the jury home and told them to come back the following Monday. As seasoned prosecutors, you still get worried. That was the longest weekend of my career. When a fall comes back around, it always feels like a fresh start.

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28:40It took six days for the jury to arrive at a verdict in Chase Merritt's murder trial. Local stations KGTV and KABC covered the news. The end of a near decade old murder case is solved. Charles Merritt was found guilty. The jury determined that Charles Chase Merritt, legend the Mixed State family, and the jury's case was found guilty. The jury determined that Charles Chase Merritt, legend the Mixed State family, and the jury's work not over the penalty phase of this trial starts tomorrow. The prosecution plans to pursue the death penalty. To finish, it was found guilty of all four counts of first-degree murder. The first count was the murder of Joseph. The second count was the murder of Summer. The third count was the murder of Gianni and the fourth count was of Joseph Jr. In the courtroom, the day the verdict came down, Chase Merritt sat at the defense table, staring ahead with his hands clasped in front of him. As the verdict was read, he closed his eyes and inhaled slightly.

29:44Someone from a few rows behind him cried, oh God. As the clerk continued, Merritt's head dropped, and the attorney sitting next to him reached over, and for a moment, set his hand on the convicted killer's arm. About six months after Merritt's conviction, the court handed down its sentence, what would it be? Death? Or life in prison? Relatives of the Mixedays gave victim impact statements. Joseph's mother Susan Blake approached the podium, her voice quivering. She looked Merritt directly in the eyes. It's despicable, evil monster. That would really be my family. How could you beat two precious little babies? Michael McStay, Joseph's brother, came up to the podium, periodically wiping tears away, as he spoke.

30:46There's nothing more valuable on this earth than time, and that was stolen from them, that was stolen from us. This world was robbed for four beautiful souls. Before the judge imposed a sentence, Chase Merritt had one last chance to persuade the court not to give him the death penalty. One last chance to plead for his life. I may deserve a lot of things. I'd hunk the service. I did not do this. And as God is my witness, I will be back here, and I will prove to everyone that that is true. Merritt spoke tearfully. He said he loved Joseph. I would never have heard of him in any way. I would never raise my hand to a loving or child.

31:51He said that prosecutors manipulated evidence just to pin the murders on someone and get a win. He said it killed him that the Mixedays relatives didn't believe in his innocence. When Merritt finished his statement, it was time for the judge to impose the sentence. The judge would have to decide. What was a fair sentence for a man convicted of killing a family of four? What was justice for the Mixedays grieving relatives? Who had lived for years, with the knowledge that their loved ones were brutally murdered? He was there for the judgement, since of this court. He said, right, what did you create in a judge? That the defendant Charles Merritt besettings the death? As Merritt listened to the judge, given the death penalty, he looked straight ahead, hands clasped in front of him, his solemn expression on changing.

32:51Throughout the trial and since, Merritt has maintained his innocence. Just before sentencing, he requested a new trial. He claimed a certain witness should have been called, whose testimony he said would have exonerated him. His request for a new trial was denied. When ABC News spoke to him last year, he said he was planning to file a habeas petition to try and prove he did not commit these murders. A petition has not yet been filed. Merritt's ex, Kathy Jarvis, says she's always believed Chase didn't kill the Mixedays. I've never wavered in my belief in Chase. It's past time that people, I don't want them to forget about this case. And I don't want them to forget about him, you know, being in there. I hope people will reevaluate. I hope something will happen to exonerate him.

34:00Defense Attorney Raj Malin said justice hasn't been served for Merritt or the Mixedays. Malin said we're no closer to knowing the truth of what really happened to the Mixedays family. But Michael Mixedays said the verdict has provided some closure. I personally am happy with the verdict. I think it was correct and fair. He got a fair trial. And the jury spoke. Today, Chase Merritt is behind bars at a California State Prison in San Diego. He is 69 years old. Though he sits on death row, there's no date for his execution. While Merritt was on trial in 2019, California's governor instituted a moratorium on the death penalty in the state. There hasn't been an execution in California since 2006. After the Mixedays remains were discovered, it were laid to rest in a cemetery in Orange County.

35:03There's a permanent memorial to the family out by the same climbing waves. On a bluff overlooking the Pacific Ocean sits a terracotta bench. On one side is a plaque with the names Joseph, Summer, Gianni, Joey, Jr. Mixeday. Inscribed to the seat of the bench, it says, riding the waves in heaven. Over 15 years after the Mixedays were killed, friends of theirs, like Gina Watson and Jesse Silvaria, still hold vivid memories of what the family was like. I would like Joseph to be remembered as a really great friend that he was, a generous person, a great father, a great husband, great son, great brother. I don't think I would have spent so many hours of my life researching with his father if Joseph wasn't the kind of person that he was.

36:03The way that I want to remember Summer is I want to remember her experiencing that love and experiencing being a mother. Hi, little Java Java. I want to remember them at the beach playing in the sand. Hi, sir today. The sun is out. They have their bicycles. You want to get on a bike with Daddy? Yeah, let's go. That's what I think of when I remember them. Oh, my God! Oh, my God! Oh, my God!

37:05What happens to the Mixedays is a production of ABC Audio in 2020, hosted by me, Ash and Sing, produced by Madeleine Wood, Vika Erinzen, Audrey Mastek, and Kiar Powell, with help from Sabrina Fang and Camille Peterson, edited by Gianna Palmer, or supervising producer, Susie Lu, music by Evan Viola, scoring by Kiar Powell, mixing by Evan Viola and Bob Mallory. Special thanks to Katie Dendas, Janice Johnson, Chris Donovan, Joseph Rhee, Sonny Antrim, Alyssa Stolar, Zenderson Morris, Tom Burman, Indra Dallasaka, and Blue Browning. Josh Cohen is our director of podcast programming. And when McNath is our executive producer. Can't wait for more. Listen to the next episode ahead of everyone else, add free.

38:12Subscribe now to 2020 True Crime Plus on Apple Podcasts. Click the link in the description to start your free trial today. When fall comes back around, there's a sense of a reset. And new pieces from Lululemon's fall drop are an inspiration to push your goals and elevate your routines. As your calendar fills, easy to layer styles meet the demands of your day. And as you challenge yourself to try even more, versatile sets transition with you. The Lululemon fall lineup brings new levels of comfort and confidence, whether you're starting something fresh or starting something over. Check out the latest arrivals in store and on Lululemon.com now. Do you hear that? That's sound right? That means that summer is officially here. It means that grown adults just sprint into the street for a frozen dessert shaped like a cartoon. But this summer, Mint Mobile has a better tree. Every plan, including unlimited, is $15 a month. And unlike Ice Cream, it won't drip down your wrist or look nothing like the picture. Does anyone have any cash? Give it a try at minmoble.com slash switch. A front payment of $45 for three months, $90 for six months or $180 for 12-planned plan required $15 per month equivalent to taxes and fees extra.

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