Defense attorney claims another business associate of Joseph McStay was complicit in killing family

A San Bernardino Superior Court judge presiding over the trial of McStay family murder suspect Charles “Chase” Merritt ruled Thursday that certain evidence pointing to another suspect cannot be presented to the jury.

In a motion filed with the court, one of Merritt’s attorneys argued that a business associate of victim Joseph McStay, Daniel Kavanaugh, threatened McStay and his family in an online exchange in January 2009 after their relationship soured. Additionally, the attorney said, Kavanaugh told another man in November 2013 that he “knows how to make people disappear” and that they will “find his bones in the desert.”

Kavanaugh’s comment in 2013 occurred 10 days after the skeletal remains of two adults and two children were discovered buried in two shallow graves in the Mojave Desert, north of Victorville and west of Interstate 15. The remains were later identified as those of Fallbrook residents McStay, 40, his wife, Summer, 43, and their two sons, Gianni, 4, and Joseph, 3.

The family had been beaten to death with a three-pound sledgehammer found in one of the graves, and sheriff’s investigators believe Summer McStay may have been raped before she was killed.

Merritt, 61, of Homeland had long been a person of interest in the disappearance of the McStay family. The family was last seen on Feb. 4, 2010. Merritt, in fact, was one of the last people to see Joseph McStay alive. The two had met at a Chik-fil-A restaurant in Rancho Cucamonga to discuss business.

About a year after the discovery of the McStay family’s remains, San Bernardino County sheriff’s detectives arrested Merritt as a suspect in the killings. He faces the death penalty. Jury selection in his trial is now underway, and opening statements are scheduled to begin Jan. 7.

Joseph McStay operated an online custom water fountain business, Earth Inspired Products, and Kavanaugh designed the website for the business and did search engine optimization.

Threats in message exchange

According to the motion filed by attorney James McGee, an online instant message exchange between the two men revealed McStay had offered to buy Kavanaugh out of the business. Kavanaugh was not pleased, threatening to destroy McStay’s business if his demands weren’t met. The message chain was saved to McStay’s computer on Jan. 29, 2009.

“The later you respond and deal with this, the worse it’s gonne be,” Kavanaugh told McStay in his online message. McStay responded: “Now, I, Summer & Kids know the ‘Real You’ and what you would potentially do to harm me and my family … Your (sic) a great guy Dan . . . FK’n Sad.”

The exchanges intensified, with Kavanaugh saying, “So now that you know how serious I am, and what I’m capable of … you can make a better decision how to end this.”

On Nov. 23, 2013, soon after the McStay family’s remains were discovered, Kavanaugh got into a heated exchange with another man he was doing business with in San Diego County. Kavanaugh, according to McGee’s motion, agreed to design a website for the man’s business in exchange for him building an aquarium for Kavanaugh.

But Kavanaugh, according to the motion, never got the aquarium, so he went to the man’s business and told him he had been “done dirty” and that he “knows how to make people disappear, and if anything happens again, they will find (the man’s) bones in the desert.”

The man reported the threats to his neighbor, a San Diego County sheriff’s deputy, and a police report was filed.

“Here, Daniel Kavanaugh recited specific facts which described the nature of this crime, and the manner in which the McStay family was killed and buried,” McGee wrote in his motion.

Prosecutors: Evidence based on innuendo

Prosecutors argued that the evidence “serves merely to confuse and convolute” and was based on “speculation and innuendo.” Furthermore, the prosecution argued that much of the defense’s evidence on Kavanaugh post-dates the commission of the crimes by years.

Kavanaugh could not be reached for comment.

Judge Michael A. Smith sided with the prosecution, concluding the evidence was speculative. Smith, however, did allow the defense to introduce DNA found at the McStay grave sites, on Summer McStay’s bra and other items in the two graves, that did not match that of Merritt or the four victims. That DNA has so far not been matched to Kavanaugh or any other person of interest in the case.

Merritt’s defense team also will be allowed to present evidence showing that Kavanaugh transferred nearly $13,000 from Joseph McStay’s PayPal account to his personal PayPal account within three weeks of the McStays’ disappearance. Some of that money was sent to Merritt to purchase materials to complete existing orders for McStay’s business. Merritt had designed and built the fountains for Earth Inspired Products.

Prosecutor Melissa Rodriguez argued that there was no evidence to link Kavanaugh to the killings, that he was in Hawaii at the time of the family’s disappearance, and that he had called police on Feb. 10, 2010, asking for a welfare check on the McStay family.

Regardless of the evidence presented by the defense, it does not rule out Merritt as a viable suspect in the case. “It doesn’t exculpate the defendant,” prosecutor Sean Daugherty said.

Traces of Merritt’s DNA were found in the McStay family graves and in the McStay’s Isuzu Trooper found abandoned at the Mexican border. Merritt also wrote multiple checks on Joseph McStay’s Quickbooks account totaling more than $21,000 following the family’s disappearance, then went on a gambling spree, authorities said.

Cameras allowed for trial

Also on Thursday, Smith was asked by the prosecution to limit TV and still cameras in the courtroom during trial. While not seeking to ban the media from trial coverage, prosecutors noted the heavy publicity the case has received and the possibility cameras could be too disruptive and have a “prejudicial impact” on the trial.

Smith denied the motion, saying press photography and video coverage during trial could be done in a way that wouldn’t interfere with the proceedings. He said a “pooling” arrangement, in which one designated videographer and still photographer share their footage and photos with other members of the news media, may be in order.