The McStay family was brutally murdered and dumped in a California desert. The defense is pointing fingers at Joseph McStay’s business partner, Charles Merritt, who, if convicted, could face the death penalty. We discuss the trial on Law and Crime.

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Bob Bianchi, Gene Rossi, & Jeffrey Paul Discuss the Police Tactics in the McStay Trial

April 30th, 2019

Robert Bianchi: Okay, welcome back to the Law and Crime Network. My name is Bob Bianchi, we got one heck of a show for you folks and amazing case book. So, let me bring all my great guest first. My, my boy that I’m always on with Gene Rossi a Law and Crime Legal Analyst, 30 years with the DOJ over a hundred jury trials. How you doing, Gene?

Gene Rossi: I’m doing well. I’m talking to you.

Robert Bianchi: Oh man, you are so sweet. Thank you so much. I love having you on. And listen, it’s a special opportunity for me today because when I was the county Prosecutor, my Tactical Operations Captain, that’s a fancy term for the guy who’s in the thick of it all. Everything from gang investigations, drug investigations and multiple homicide investigations that we conducted is here with me in studio Captain Jeffrey Paul, retired from the Morris County Prosecutor’s office. Jeff, how are you?

Cpt. Jeffrey Paul: Good to be here. Thanks so much.

Robert Bianchi: Awesome. And Jeff as part of your credentials too. Now, of course, the big shot director of office of emergency management in Morris County. Jeff, just really quick, I’m going to toss to you first because we have not had an opportunity to have a great homicide investigator like you. And Gene, and I, often talk about the dance we have to dance as Prosecutors and law enforcement. Sometimes it doesn’t work so smoothly. We’ve operated with a lot of cases, but it’s about winning the case at the end is I always instructed. What are your initial observations as you review this McStay case, in terms of, in my opinion, how this was mishandled from the beginning?

Cpt. Jeffrey Paul: Well, you know, you always have to go back to the crime scene and I think the beauty of what we established under your leadership was that we had legal team and investigators at that crime scene from the beginning. So, in this particular case, you know, we have a situation where there was a lot of evidence that’s being talked about years later, that was never either collected or examined, no forensics were done. So now we’re, there’s a lot of speculation with regards to what does this all mean?

Robert Bianchi: Jeff, let me ask you, when, if this came across your desk, when back in the day when we were operating together and there was a potential that it was a missing persons case or there’s something odd that’s involved, did you find that as a law enforcement professional, strange that they allowed third parties to be introduced into a potential crime scene?

Cpt. Jeffrey Paul: I mean, the crime scene has to be secured right from the beginning and it has to stay secure until the investigative pieces over, until everything’s collected, until crime scene experts are, have an opportunity to get in and process, you know, whether it’s blood, you know, obviously forensics, computers, clothing, you know, take a look and see exactly what happened at the crime scene. You can’t, it’s very difficult to recover later when you didn’t do those basic steps in the beginning of the investigation.

Robert Bianchi: Yeah, absolutely. And Gene, we’re going to get to you in a second, but there is a responding officer. Let’s take a look at the first contact that law enforcement had in this case and we’ll come back on the other end of the clip. Stick with us. Wow. Gene Rossi, to captain Paul’s point. They had the instinct, something wasn’t right. They called homicide. They even brought cadaver dogs but they never preserved and locked down the potential crime scene. And Captain Paul and I used to live by an axiom, or at least he did. Maybe because it was just me. I don’t know. A missing persons case is a homicide case unless you prove otherwise, it’s so as is an unattended death, it may look like suicide, it may smell like suicide. But until the final conclusion is done, you lock it down until the investigation is complete. What are your thoughts, Gene?

Gene Rossi: You have to lock it down and hermetically seal that potential crime scene. Because when you go to trial and it’s all about trial and how you’re going to present it to the judge or a jury, will the judge or the jury have questions about the integrity of the evidence that’s collected. But also, integrity in terms of did they search that crime scene thoroughly to find evidence. It’s like having a murder weapon, a rifle or a pistol and you don’t try to take fingerprints. Yeah. And let like 15 cops touch the gun.

Robert Bianchi: Yeah. And Jeff, you know, Captain Paul, as odd as this was, we actually had a case where there was what was believed to be blood spatter in a homicide case. And there was a little bit of a debate from a law enforcement side, which I quickly shut down about whether or not we should swap it and send it to the state police. The law enforcement people thinking, well, it’s obvious and you may remember one of the lines I said inside the office, well, we’ll, we would have proved Gene, you’re like this. We will have proved the best ketchup spatter analysis known to mankind by the time the defense has done on this case. So, I mean now they’re trying to look at a table and call substances on a table, blood which is no longer in existence and wasn’t examined. What are your thoughts in terms of a law enforcement professional about that?

Cpt. Jeffrey Paul: I mean, if you look at that table, I mean clearly there is something that would suggest it that’s sort of been observed when the crime scene existed. That table disappeared. I mean, you, you can’t now come back years later and say, well, there’s potential blood there when we don’t even have an opportunity to swab it, set it for forensic analysis and make a determination from the lab’s perspectives to whether or not it was in fact blood. So, you know, it’s the kind of crime scene that you don’t really want to have as part of your, you know, prosecution, a case. I mean, there’s obviously some sloppy police work. You know, from our perspective, you have to secure that scene from the beginning as, as the other guest said. And run it through the numbers until you can prove otherwise.

Robert Bianchi: And is it interesting to you Captain that they actually called homicide. They had that investigative instinct and then just let it go. That’s not going to be good for the prosecution in the case of Charles Merritt, is it?

Cpt. Jeffrey Paul: No. Not at all. I mean, family went through the crime scene, family members took out evidence, brought evidence back. I mean, you know, obviously Defense Attorney like yourself is going to have a field day with it. We’ve been up against, you know, some high charging Defense Attorneys on regular homicide cases where we’ve done our work and still have to have some big vigorous Cross examination and be challenged, which is, is part of how the system works and it should work. But the case where you don’t collect the evidence, and you don’t preserve the crime scene and now years later trying to create it is somewhat difficult.

Robert Bianchi: Gene, talk to us a little bit and educate our audience about the lack of evidence charge that a judge gives in a case when he, when he tells the jury about how they can evaluate a case and how good defense lawyer will talk about sloppiness, failure to do the job, and a lack of a proper investigation. How good defense attorney takes those tools and gets a not guilty verdict.

Gene Rossi: You’re, your whole goal is a Defense Attorney in a criminal case is to just have one seed of reasonable doubt. If you have multiple seeds, great. And to get that one seed, you can rely on a jury instruction of a judge, which usually says this. If you find that a witness for either side, even the government has given testimony that doesn’t make sense. If not is false and intentionally false, you can disregard the entire testimony. So, if there are police officers who were sloppy and gave, you know, in coherent answers, the jury’s instructed, you can just disregard them. Number two, on collecting the evidence, you can get an instruction, And I faced it, where the judge is telling the jury that the manner in which evidence is collected can go to the integrity of that evidence. You know, the famous weight not admissibility. You can give it as much weight as you think is appropriate given the poor mannerism with which to police collected. I hate that instruction.

Robert Bianchi: Yeah. Well, you know what, it’s a fair one. Even though we may hate it. As Prosecutors got a cross examination by the Defense Attorney, Gene Rossi, he got the witness to say that there was nothing that he observed that would have indicated that there was a murder inside of that home. That’s in addition to the fact that they didn’t even process the scene, which is bad enough because the state’s theory of this case is that foul play occurred inside that home. Why are, is the prosecution locking itself into that home? Especially given they never processed it.

Gene Rossi: I think the prosecution had to call that witness because they know that the defense would have called them if they did not. It’s one of those things. It’s a two-edge sword. I got to tell you; I hope he ended his cross after what we just heard because he got out all the major points. And that witness is actually is pretty bad for one reason. The prosecution’s theory is the murder occurred in the home. And the reason is they need venue. That witness has shot a hole through the venue argument. And I suspect the jury’s going to hear an instruction on venue.

Robert Bianchi: I mean, how much worse can it get? Captain Paul, it’s not like we’re talking about a textbook here. It’s not like we’re in a classroom, I mean you and I have done this job as a law enforcement guy and as a lawyer, to push that ball over the goal line to convictions on every single homicide case we tried during my administration. So, I’ve got myself to hit on the back for that. But you were commenting, as this testimony was occurring, about what should have been done once they had the instinct that something was awry with the family. Forget about whether that was even the crime scene. So, talk to me about that and also talk to our audience about what an evidence review is and how it would have assisted in this case?

Cpt. Jeffrey Paul: I mean the bottom line is as soon as you get on that case, you have a family that’s disappeared, is missing. Okay. So obviously they thought enough to call homicide or something is going on for that mindset to exist in the first place. So, at that point, certainly you’re going to go in to make sure that there’s no bodies. You’re going to make sure there’s no hazardous scenario. People maybe in need of medical aid. But once it’s determined that there’s nobody home and there’s nobody, you have to back out secure, slowdown, hookup with your legal team and develop a plan, likely get a search warrant to slow methodically go through that scene. So, the evidence review is going to ultimately, and we have had the pleasure of work with some great crime scene teams, to comprehensively go over every piece of evidence. So, you would have seen pictures that were taken of, for instance, a table that likely would have showed a substance that someone might have concluded that it was blood, but now we have to say, wait a minute, where’s the table?

Robert Bianchi: Okay, there’s a picture right there. And the thing that shocks me about this and where I would go when I was Prosecutor, you know me well enough to know that you probably would have had to take me out of the emergency room after I saw this. Somebody thought enough to take a picture of that table. And in the evidence review, if you’re working cooperatively with your forensics people, and your lawyer’s and you’re working as a team, you know, we would have been like, wait a second, swab that, process this whole entire house. Somebody thought enough to take a picture of that because they saw something was awry. Sloppy, sloppy, sloppy. No?

Cpt. Jeffrey Paul: Absolutely. I mean, you know the table speaks thousand words. The only problem is we don’t have the table. We don’t have forensics, we don’t have swabbing, we don’t have a lab report. We have nothing. So, all we can do is talk about what it might be, but what it might be, doesn’t help us out today.

Robert Bianchi: And, Gene Rossi is an attorney in a courtroom and a skilled guy like yourself as a Prosecutor. You have to know that the defense in summation is going to bring out that if they had processed the scene correctly, they would not have had to indict wrongly our client, because potentially the DNA of the murderer was right there, but they let it slip through their fingers. Guys, you can’t convict a man based upon this sloppiness. Is that the argument?

Gene Rossi: Absolutely. I had, I had a case once an acquittal, and I don’t want to get into the facts, but I remember this Defense Attorney, Mike Lieberman, it his closing argument, he said, members of the jury, we expect more from the federal government. This case is garbage. And I got to tell you, I kind of sank in my chair, acquittal.

Robert Bianchi: Right. Captain let me ask you, last question on this piece right now. If you had been the Tactical Operations Captain at the time, and this information was coming your way, what was the immediate instructions you would give to the detective staff as to what they should do to work this missing persons case up? Indeed, to find these people or to find out what happened?

Cpt. Jeffrey Paul: I mean, the bottom line is we’re going to treat as a homicide. You never can go wrong, because you’re going to follow the evidence rules. You’re going to work in conjunction with your Prosecutor to develop a good investigative strategy with regards to the investigation but treat it as a homicide until you prove otherwise.

Robert Bianchi: Right. That’s great. Hey, for all you folks out there that are aspiring detectives or law people or whatever, you have got to treat these cases, if you’re on the law enforcement side, as a homicide until otherwise proven. Captain Jeffrey Paul, Gene Rossi, you guys are amazing. We’re going to do more business here at the Law and Crime Network. We’ll be back with more Paul, more Rossi, more McStay. Alright. So, while that clip is playing, Captain Jeffrey Paul Tactical Operations Captain, retired at the Morris County Prosecutor’s office, director of office of emergency management said, that’s all garbage. What do you mean Jeff?

Cpt. Jeffrey Paul: They got locked into a couple of things. I mean obviously the vehicle is parked where it was, where it was found so close to the border. They’re focused on the border, seeing some video of people, you know, apparently crossing the border, but obviously it wasn’t the McStay family, led to, you know, what we commonly refer to as tunnel vision and, and the assumption that that’s where the family was. Well, you know, obviously that’s not the case. Family was found, you know, killed on this side. So, I think that, you know, the evidence didn’t support that, and I think that, you know, the talk about the international relationships and the FBI and it actually is going to go nowhere as far as lead. It’s not going to get end up getting pursued.

Robert Bianchi: Right. Gene, another thing in the hands of a skilled Defense Attorney given to them by the prosecution is to Captain Paul’s point. You guys jumped to conclusions, which is the disaster for any kind of investigation, and you turned out to be wrong.

Gene Rossi: Well, they gave the defense say possible seed of reasonable doubt by following up on that photo. And I got to tell you the photo, it may not be the McStay’ s, but you, if you have a very skeptical juror, they’re going to say that could be the McStay’ s.

Robert Bianchi: Yeah, it is what it is until it doesn’t suit you and then it isn’t. Not a good way to investigate a homicide case in my mind. A lot of us had been wondering on a Tiffany Moss case when the jury was going to come back in the guilt phase. This is the case where she represented herself for the murder of her 10-year-old child. It’s been just over about three hours by my estimation. The jury has told the judge they have a verdict and they’re waiting to get the jurors together. Get the attorneys together until that verdict is announced. You know, we will be covering it on the Law and Crime Network because that’s what we do. Gavel to gavel coverage with awesome guests like Captain Jeffrey Paul from the Morris County Prosecutor’s office, retired now, director of Office of Emergency Management, and Gene Rossi, 30 years at the DOJ. You can’t get a better crew than this for a verdict like this. Gene Rossi people were asking in the chat room, you know, we’ve been around the block, we’ve tried a lot of cases. This is a death penalty case. It’s serious. She’s representing herself and it’s been my experience. Don’t worry as a Prosecutor, they’re doing their due diligence, but there’s no way in my mind I’m going to put my magic eight ball out there, Gene. No way possible in three hours they declared not guilty. This is a guilty, hands down. Thoughts?

Gene Rossi: Oh, absolutely. It’s, it’s definitely guilty. Definitely guilty.

Robert Bianchi: Right. Captain Paul, listen, me and you actually been involved where you’ve been my witness, as a, as a captain in murder cases that we’ve had, and the one that we tried to in particular. And with that case, you, you remember when that, when that jury was coming back, this is the pucker up time. You know, there’s nothing you can do at this point anymore, I think I’d be confident as a Prosecutor, but you never really know if you get that curve ball. I just don’t think it’s happening in this case. What do you think?

Cpt. Jeffrey Paul: No, I think it’s a guilty, I mean I don’t think you could we benefited from a quick turnaround like this either. I mean we’ve usually had to wait much longer while they sorted out and do what juries do, and that’s make sure they’re making the right decision in the interest of justice. So, I think it’s a guilty, you know, it was a short deliberation process obviously, and no defense put forward. So, I think we’re getting a guilty.

Robert Bianchi: Yeah. Okay. So, I think we’re all in agreement with that. Gene, let me ask you really quick, I had been suggesting that I don’t think she’s quote unquote crazy, if you will. And I’m using the vernacular. I think she’s crazy like a Fox. I cannot wait till the Law and Crime Network covers, if there is a guilty verdict, the penalty phase of this case because I’m interested. Is she just basically saying I’m going through the motions and I really don’t want a defense? I want to die, or will she get up there and say don’t kill me. Spare my children the loss. My remaining children a loss of their mother. I’m a horrible person. I don’t deserve to live but don’t penalize them. Where do you think it’s going Gene?

Gene Rossi: I think she is crazy as a fox and I don’t think she’s going to testify or even speak during the sentencing. I think the two or three standby counsel are going to take over that penalty phase. That’s what I predict.

Robert Bianchi: Okay. That is, that’s my idea, I mean, what do you think? Is she going to try to save her life?

Cpt. Jeffrey Paul: I’m not sure. I think that there’s a possibility. I think we’ve got to wait and see.

Robert Bianchi: Yeah. Gene, the appellate issues here with regard to her not asking any questions. I see nothing there. I mean, we keep debating this issue. I see it in the chat room a lot. The case law is clear from the Supreme Court. You cannot argue ineffective assistance of counsel, once the court does a determination that you’re mentally capable of moving forward. And secondarily the evidence overwhelming. Any appellate issues you see in any of this?

Gene Rossi: No, because the evidence is overwhelming. Number one, the Prosecutors except for, you know, maybe closing, everything seemed to be copacetic. And if the judge held that famous Floretta hearing, where a judge has to really ask the defendant questions about whether you’re making the right decision, if that was a very thorough hearing, I think on a penalty phase, I mean the guilt phase, everything’s okay.

Robert Bianchi: Gene Rossi, Captain Jeff Paul, it’s been an amazing three hours. I loved your expertise. I can’t believe this verdict had to come in right at the end of my shift. But the great Michael Bryant is going to be picking it up from here. We’re going to look at a quick clip of what we all agree was an excellent, passionate, and very descriptive closing statement by the prosecution, and Michael will be taking the verdict. We can’t wait to see what happens. I’ll be back Wednesday from 12 to 3, stay with us. We’ve got more Law and Crime, and the Tiffany Moss verdict coming up.