The McStay family went missing back in 2010 and their bodies were later found in the Mojave desert in 2013. Charles Merritt is accused of killing the family and is facing the death penalty. What are your thoughts on the trial so far? I discuss the case with Gene Rossi on Law & Crime.
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Bob Bianchi & Gene Rossi Discuss The McStay Family Murder Trial
May 14th, 2019
Robert Bianchi: Okay, welcome back to the Law and Crime Network a lot on our plate today. I got Gene Rossi with me. We’ve got another great guest, new for me at least that’s coming on shortly. Gene, we’re going to take a little switch in gears now because in Bourgoyne, they’re qualifying an accident reconstruction expert. So, there’s no reason why we need to listen to that, our producers will let us know if any fascinating information starts to come out and we’ll go back to court. Gene on Merritt, I want to do an update Gene. Couple things, apparently one of the lawyers is sick if things aren’t bad enough, how slow that case is moving. And the judge has granted, I think today’s the last bit of courtroom activity till May 21st. These jurors must be riled about that. But let’s go to the interesting pieces. The jury apparently asked I don’t when, what mechanism this occurs. They’re not allowed to do this, at least in my state. They’re allowed to ask questions but they’re not allowed to start demanding evidence. But they asked to review and look at the truck. There was some arguing going on about whether or not the truck was going to be actually an exhibit that the jurors could go see. The judge allowed it. So, they were able to do that. Now that is about a nine-year-old scenario that we’re looking at there. And I will get your points of view on whether that’s fair or not fair. It reminds me of that case, the Tex MacGyver case, with that particular issue, Gene jurors could start the riving all sorts of observations that other jurors aren’t seeing. And that’s where some courts don’t allow this. It could lead to confusion to the jury, and in Tex, MacGyver, they started debating certain things about the positioning of the seats and various things. And it’s not captured in the record what those observations were. What do you think about that?
Gene Rossi: I’m very hesitant on, on complying with the jury’s request to look at evidence. It troubles me just like, I don’t like them to re-read back transcripts. I’ve never had a jury go to a crime scene. I’ve never had a jury, you know, go to some room or anything that’s part of the case, so I don’t like it.
Robert Bianchi: You know what a distinction without a difference may be, but just so that the audience understands what I’m saying here is that when I’ve done crime scene, jury’s go to crime scenes or fact finders are going into crime scenes. The witnesses actually narrating something. It’s not just this wild, you guys take a look and come out of it with whatever you think you want to come out with it because people could see things differently. Anyway, the judge allowed in this particular case, what I think is even more devastating though is that we know, me and you have talked about this Dan Cavanaugh, third party guilt. Where Charles Merritt is pointing the finger at Dan Cavanaugh and Gosh, Gene, we called it before it happened. We know that the prosecution’s theory is it wasn’t Cavanaugh because they believe Cavanaugh approved to their sufficiency that he was in Hawaii. That was his alibi. Now of we talked about the idea of this could be a murder for hire scenario at the behest of Mr. Cavanaugh, and these are just allegations. The judge has limited some information for the defense with respect to third party guilt, which you and I believe both, that if there’s a conviction could lead to a potential reversal. I would say a likely reversal. The defense should be able to strongly put forward its case. But yesterday they had one of their witnesses, Gene, we talked about this with Captain Jeffrey Paul the other day. What did they do to confirm the phone records? What videos did they get? What information do they have to show that the person really making that phone call was Dan Cavanaugh and not somebody with Dan Cavanaugh’s cell phone. And in fact, the cop admitted they did none of that and admitted, as I understand it, that he can’t really say that it was Dan Cavanaugh that was making those calls. Come on.
Gene Rossi: Absolutely. Now that raises so much reasonable down. I got to tell you if he is convicted, there will be a reversal on appeal.
Robert Bianchi: You know, Gene, I as a prosecutor doing homicide work and directing. Unfortunately for them they had to listen to what I told them because I was their boss. But I would say, you know, you need to follow these leads for two reasons. One, and most importantly, we want to make sure we have the right guy that did it. That’s a really important thing in the world of Criminal Prosecution, that the person you’re charging did it. And two, that when a defense lawyer, like me now and you now, come into that courtroom and start bringing out sloppy loose ends to how they were siloed, tunnel vision towards Charles Merritt, at the exclusion of everything else and they didn’t do any backup. And you can’t be confident, ladies and gentlemen, that they got it right. Is this the case that you’re going to pull the trigger on my client in a murder case, in a death penalty case, based on this sloppiness? I don’t think so. What do you think, Gene?
Gene Rossi: You know what, I got to tell you this. If I’m doing a closing for the defense, I’m going to tell that jury, you know what, one witness didn’t show up that the government should have called because the government has the burden. The one witness they should have called is Dan Cavanaugh. Because this reeks of Dan Cavanaugh, and they should have put him on the stand to have him say to you under oath. I did not do it. That’s what I would say.
Robert Bianchi: Yeah. I’ll be like, well yes Gene, let’s talk about that. Okay. In Jersey it’s called the [inaudible] charge. That is where you were allowed to comment on asides failure to produce a witness that would have relevant data or information. And you had to kind of go through a couple of hurdles, you know, in order to do that. But assuming the court would allow the defense to make that argument, the argument would go like this Gene. Right? Ladies and gentlemen, there’s a guy who has information, he has data. Now we know they did don’t think he had anything to do with it. Even though they didn’t go out to Hawaii, even though they didn’t pull videos. Even though they didn’t confirm he was the one making the phone call. Why? Why is it like see no evil, hear no evil, speak no evil in Dan Cavanaugh not even coming to this courtroom. So that you can make that evaluation, they robbed you of that opportunity. Is that what you’re saying would make a difference in your mind with respect to reasonable doubt?
Gene Rossi: Yes. But the issue of whether it would come in depends on the eight ball that the judge is using.
Robert Bianchi: Yes. So, what Gene Rossi’s referring to their folks, is that typically speaking, judges are making their decisions based upon what we call principles of law and case law. And we’re only kidding around judge. We’re only kidding, so don’t get upset. We kind of have been laughing at you, sometimes the way the rulings are coming out, we were wondering whether you had a magic eight ball and shook it and said sustained or overruled because there had been some kind of weird rulings that, that aren’t even being articulated on the record. And talk to me about that Gene. The importance of substantiating a record for appellate review.
Gene Rossi: Here’s the thing. This is folks, this is a death penalty case. You got to cross every t. Dot every I. This is not just a possession of marijuana case and these rulings, some of them with the utmost respect to the judge. Some of the rulings defy my experience and my logic and training. And if you’re going to make a strange ruling, you got to make a record because that appellate court is going to look upon the record with a fine-tooth comb.
Robert Bianchi: Yeah, absolutely. Well, look, there’s a picture of the defendant right there. I think that he’s got as good as shot of an acquittal in this case as any that we’ve covered here at the Law and Crime Network. Gene, I want to throw to a detective Edward Bachman, who was the lead investigator from the San Bernardino Police Department and get your thoughts on the other end of this one. Gene. That’s my question, Gene, help me.
Gene Rossi: You got to cross every t and dot every I and that witness is basically saying when it came to Dan Cavanaugh, they did not do that bad, bad impression.
Robert Bianchi: Yeah. Forgetting, you know, I got to be honest. I, I think it’s even better that they don’t have Cavanaugh in there for the defense. I mean, because it’s, it’s amazing to me. These are not unsophisticated homicide people. It seems to me, Gosh, I mean, if you’ve ever done this work, you’d know the defense is going to be pointing towards the Dan Cavanaugh and you know that Cavanaugh is providing an alibi. You know you got to send detectives up there to do a top to bottom job on building the evidence to support your theory that you agree Cavanaugh was in Hawaii. Why would you allow your case to fall apart like this? Are the lawyers involved in the investigative process? I have to ask myself because in some places they don’t do it. In jurisdictions I was prosecutor, lawyers were always intimately involved for this very reason.
Gene Rossi: Well, I can, I can tell you why the prosecutors did not call Dan Cavanaugh. If they did call him on cross examination, the defense attorneys would have a good faith basis to ask the following. Sir, on such and such date in 2017 you told your girlfriend that you killed the McStay family. True? And that’s why they didn’t call him.
Robert Bianchi: Right. Well, I, I have to give you another reason why, you know, maybe they should have played it out, but then Cavanaugh, if I’m representing him, you’re not getting testimony out of that guy. I’m asserting his right to remain silent.
Gene Rossi: Of course, of course. And that could be it too. That could be it too.
Robert Bianchi: Yeah. But you usually have to play that out outside the presence of the jury. In most jurisdictions, the defendant has to take, there has to be some record that the party seeking the testimony sought it and that he’s asserting a valid privilege, i. e. The Fifth Amendment Privilege. So as not to get that, what we refer to in Jersey, that clowance charge. That would be a legitimate reason for court to say to the defense, no, I’m not letting you comment on him not being here when the prosecution wanted him, but he enjoyed his fifth amendment right to remain silent. So as a prosecutor, let’s get really nuanced here Gene, if I’m prosecuting this case, I know the defense lawyer’s not going to let Dan Cavanaugh on the stand. I know that’s going to happen. So, I call him and let it play out
Gene Rossi: And put it in writing so you can bring it to the courts, judge’s attention. We don’t know if that happened here though. We don’t know.
Robert Bianchi: Right. Well Gene, listen, I, I find these tactics and being able to discuss them with you, who’s a real pro is just so exhilarating. And again, you’re right. We don’t know. We’re, we’re Monday morning quarterbacking here, and we used to try cases and we were in the thick of it. But I don’t know, in this case Gene, I see a lot of glaring errors cause you cannot convince me any way, shape or form that not locking down the Cavanaugh alibi was a good thing for the prosecution. It’s a bad thing. We got to go to break folks. We’ll be right back.