Why did the defense attorney talk about the alleged weapon used in the McStay case to the media?

McStay family

UPDATE:  6/11/15 – In an interview with The Sun, Mettias stated:

“Mettias said the pretrial publicity surrounding the case, including comments made by law enforcement officials during the November news conference and a subsequent CNN interview with District Attorney Michael A. Ramos, has jeopardized Merritt’s chance at a fair trial and has tainted the jury pool. And that, Mettias said, is why he is now discussing Merritt’s case publicly.”  I didn’t hear anything during the CNN interview nor news conference that jeopardized the case. Hopefully, Metttias will further explain.

 Original story:
There is one thing about doing what I do, I never know what I am going to wake up to.  What information is going to come out on any missing/criminal case that turns it on a tail spin.  This morning was another one of those mornings.  The first thing that popped up on my newsfeed was the story written by the Victorville Daily Press about the McStay case.

Attorney: Sledgehammer alleged weapon in McStay family killings

The prosecution side as well as the San Bernardino Sheriff’s Office has been tight-lipped about what evidence they had against Charles “Chase” Merritt, but here is the defense attorney, Jimmy Mettias talking to a local newspaper, and speaking of things that the public has never heard before.

The murder weapon, has been speculated on, but never released, and this morning we hear that Mettias tells the media that the “common object” that SDCD Attorney Mike Ramos was referring to back in November, is according to Jimmy Mettias, a 3-lb. sledge hammer.  By the way, it’s a little odd that Ramos called the sledge hammer a common object as not every home has one, but most every home has a hammer. 


And not only does the public now know what the object is, we now know that it was found in one of the graves and that the paint on the sledge hammer has no fingerprints and it was a negative match to the type of paint Chase used to paint the McStay home.   I am not so concerned with the paint as the hammer may never have been in the McStay home, BUT surely this hammer would have had blood on it.  My thought is that we will hear that luminol found blood on that hammer.  But, now Mettias says there was no DNA on that hammer. My assumption now that I know this is that this was a premeditated murder and no doubt the weapon found was not the weapon used.


Premediation: Car was parked at the border. Weapon in graves is not the same weapon used. Same type, but not same weapon. Tarp or plastic likely used before murder and family probably forced to lay on plastic before killed.


Mettias is also stating that the family could not have been killed in the home.  Mettias stated that the DA is relying on “small things” to show the murder happened in the McStay home, but he states there is “not a shred of physical evidence that would even suggest that a quadruple homicide by bludgeoning people would have occurred inside the house.”   Not only does Mettias say there is no blood found, there was no hair or sign of a struggle. Even Michael McStay that was in the home stated there was no sign of struggle.  But, no hair?  I would think for sure they found some hair.


Mettias states that Chase’s cellphone cannot be placed to the McStay’s home or the Mexican border or the grave sites.  When you leave your phone at home, it does not show where you are at.  But what about the McStay cell phones?   The signal traveled around the area for several days after the McStay’s went missing only to disappear by the Bonsall Bridge.  Someone was driving around with those phones to throw off the police.


Why is Mettias talking now, just days before the prelim and why bring up things that have never been said before? 

So, I wanted to find out what an attorney can say to the public or media and this is what I found:

According to Wisconsin attorney, Dean Dietrich, this is what an attorney cannot talk about related to a criminal trial because they are likely to materially prejudice the criminal proceeding include the following:


“Things you may not discuss. Things that a lawyer may not talk about related to a criminal trial because they are likely to materially prejudice the criminal proceeding include the following:

  • the character or reputation of a suspect or witness in a criminal investigation;
  • the credibility of a suspect or witness in a criminal investigation;
  • the criminal record of a suspect or witness;
  • the identity of a witness;
  • the expected testimony of a party or a witness;
  • the possibility of a plea of guilty to the offense;
  • the existence or contents of any confession, admission, or statement given by the suspect;
  • a person’s refusal or failure to make a statement with regard to conduct or an offense;
  • the performance or results of any examination or tests;
  • the refusal or failure of a person to submit to an examination or test;
  • the identity or nature of physical evidence expected to be presented;
  • any opinion as to the guilt or innocence of a suspect;
  • information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence and that, if disclosed, would create a substantial risk of prejudicing an impartial trial; or
  • the fact that a defendant has been charged with a crime, unless the lawyer includes a statement explaining that the charge is an accusation only and the individual is presumed innocent until and unless proven guilty.”

I also found this information:

Model Code of Professional Responsibility Canon 7, EC 7-9 states that a “lawyer should always act in a manner consistent with the best interests of his client.”  A lawyer “may take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor.”
BUT
The ABA Model Rules and Model Code both expressly place ethical limitations on attorneys in communicating with the press. The guiding principle of these rules is the protection of the jury from unfair prejudice.  Specifically statements that have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” 
 
A 1994 amendment allows an attorney to “make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client,” to the extent necessary to “mitigate the recent adverse publicity.”  Specifically Model Rule 3.6 says, lawyers can strategically tailor pleadings and motions to make information public that otherwise would be subject to trial publicity rules.  There is no per se prohibition against press releases before trial, and information already out in the public would not violate ethical rules. 


The question I have, is the information about the sledgehammer as the weapon, and in the grave, Joey’s hands tied, and other things Mettias spoke of in violation of ethical rules as it is not public record? I mean, it is not public record, right?  I do not remember anything being let out by the courts.  


I know several media outlets sued the DA’s office for the release of search warrant affidavits for access to the evidence against Merritt, but they have been unsuccessful.

 
Of course, Mettias could have talked with the courts before he spoke with the media, and ran it passed them as to what he was going to say to make sure he did not cross the line of ethics.  An experienced lawyer would have done exactly that.   He may have been trying to show his client in an innocent light.   Michael McStay thinks this:  



Gray Hughes has put up two different videos showing the route to the grave sights and a video showing a couple actually at the grave sights. In the beginning of the second video you’ll see part of the video recorded by Steph Watts before it goes to the car trip to the grave sights.  It is interesting to see that leaving the grave sights, it doesn’t take to long to get back on the freeway.




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Jerrie Dean, who is retired from Federal Law Enforcement, is the Founder of Missing Persons of America.

3 Comments

  1. He said, the prosecutor will show pings, that chase was at the locations… But went on to say no one can place “”Chase”” at the locations. Which tells me, Chase's phone did ping..but since no one saw Chase..then it could not have been him, and their is no evidence it was Chase.. That's what his lawyer wants us to believe.

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