The Mitchley Video and the Identification of My Truck
Where I state what a witness, a prosecutor, or the court said, I am quoting the Reporter’s Transcript (“RT”), cited by page and line so that anyone can check it. Where I describe a document, I cite its Bates number. Where I describe my own truck or my own conversations with my trial counsel, I state what I know personally.
The short version
- On the night of February 4, 2010, a neighbor’s security camera across the street from the McStays recorded a vehicle passing. The State said it was my truck. It was the State’s only physical evidence placing my truck at that house.
- The State’s own expert of four years, Dr. Leonid Rudin, studied the video and rejected my truck (Section B.1).
- The defense expert, Gregg Stutchman, found two separate reasons it was not my truck. My running lights, which are always on, are missing. And the one light that does show sits level with the top of the headlight, where my truck has no light (Section B.3).
- The expert the State hired in the middle of trial, Eugene Liscio, could say only that the vehicle was “consistent with” a Chevrolet truck. He told the jury he could not identify it as mine (Section B.2).
- The State first called the one light that does show my marker light. When that was shown to be impossible, it called the light a reflection off a latch. My latch was flat, primer-gray metal on a flat, primer-gray box, and it could not shine brighter than the box around it (Section B.3(c)).
- In closing, the prosecutors told the jury the experts had said things they never said (Section C).
- The court found that a detailed message from Rudin, setting out why he rejected my truck, was exculpatory and should have been given to my defense. It was not, until after Liscio had testified (Section F).
A. What this is about
The State charged that the McStay family was killed on the evening of February 4, 2010, and it fixed a narrow window of time for the murders. Where I was that evening is set out on its own page, Home that night.
That night, a home security camera belonging to Jennifer Mitchley, who lived across the street from the McStays in Fallbrook, recorded a vehicle passing on the street at 7:48 p.m. That recording, called the Mitchley video throughout the trial, together with expert testimony claiming to read it, was the whole of the State’s effort to place my Chevrolet truck at the McStay residence.
The truck was not one piece of the State’s case among many. It was the State’s only physical evidence placing my truck at the McStay house. My counsel told the jury so in terms the State never disputed: the case “comes down to the truck,” and “if it’s not his truck, you can’t convict him” (RT 8407:18-25).
The evidence did not support the identification. It defeated it, from every direction at once. Among the qualified experts who examined the Mitchley video, the result was consistent and ran one way:
- Dr. Leonid Rudin, the State’s own retained expert of approximately four years, rejected my truck, because placing it in the video created a physical impossibility. That reversed the position he had given at the earlier Evidence Code section 402 hearing, and it went against the party that had hired him.
- Gregg Stutchman, the defense forensic video analyst, independently excluded my truck on two separate grounds.
- Eugene Liscio, whom the State brought in mid-trial after Rudin’s reversal, could say only that the vehicle was “consistent with” a Chevrolet truck. He conceded that he could not make an identification, and that the distinguishing features an identification would require cannot be seen in the video at all.
Unable to prove the identification through the evidence, the State supplied it through argument. The prosecutor presented Liscio’s speculation to the jury as established fact, and urged the jury to find the truck was “in fact, the defendant’s truck,” the exact identification Liscio testified he could not make. Two prosecutors told the jury that the defense expert had called Rudin’s work “flawed” and had “flip-flopped” into praising Rudin as a “creative genius,” when under oath he gave only a conditional answer about work he did not know was Rudin’s, and never praised Rudin at all. And throughout the cross-examination of the defense expert, the prosecutor put facts before the jury through the form of his own questions: pointing at the screen to confirm features the witnesses had testified could not be seen, and asserting a federal lighting requirement, attributed to the wrong agency, with no evidence behind it.
The trial court overruled defense objections to speculative testimony, sustained prosecution objections that cut off the cross-examination designed to expose the contradiction at the center of Liscio’s opinion, and commented before the jury in terms that favored the prosecution’s characterization. My trial counsel, for the reasons I set out in Section G, did not take certain steps that were available.
↑ Back to the menuB. What the experts actually said
Three witnesses with the qualifications to analyze the Mitchley video addressed whether the vehicle in it was my truck. The State’s own retained expert rejected it. The expert the State substituted mid-trial declined to make the identification at all, and conceded that the features any identification would require cannot be seen in the video. The defense expert excluded it.
B.1. The State’s own expert, Dr. Rudin, rejected my truck.
Dr. Leonid Rudin was the State’s retained photogrammetry expert and had worked on the case for approximately four years. By the time he testified at trial, he did so as a defense witness, and the jury was not told the chronology of how the State’s long-retained expert came to testify for the defense (Section E). At the pretrial section 402 hearing, his position was that he could not reject my truck. By the time he testified before the jury, his analysis had moved to a rejection, and he explained why, step by step.
The reason was a physical impossibility in the geometry. The feature Rudin had been asked to locate was my truck’s rear marker light, situated 5.17 feet above the ground, which he called the “517 point.” When he placed that point in his model to match the vehicle in the video, the measurements did not work. The overhang in the scene blocked everything above roughly four feet, so a marker light at 5.17 feet could not be seen where it would have to appear. Forcing the match drove the point below ground level, or required the truck to sit in a position no vehicle could occupy.
Two points matter here. First, the light the State pointed to was one it had identified as my own rear marker light; that identification was the geometry Rudin set out to confirm, and it was the geometry that failed. Second, the rejection did not rest on the blocked view alone: the dimensions of the vehicle in the video did not match the dimensions of my truck, a separate basis for the same conclusion.
In his own words on redirect (RT 8037:21-27):
Rudin: THE OVERHANG IS — OF THE BORDER COVERED ANYTHING ABOVE I THINK 4.17 OR SOMETHING LIKE THIS. FOUR SOMETHING FEET. SO NOTHING ABOUT 517 CAN BE SEEN UNLESS IT’S ON THIS SIDE OF BORDER. AND THIS IS WHAT THIS METHOD SAID. THIS METHOD SAID, OH, MY GOD. I CAN’T PUT IT THERE. IT CANNOT BE SEEN. I HAVE TO PUT IT HERE. THAT’S THE ONLY PLACE IT CAN BE SEEN.
The alternative placement was no better, because it required the truck to occupy a physically impossible position (RT 8037:27-8038:5):
Rudin: I WOULD KNOW IMMEDIATELY, WAIT A MINUTE. THE BACK WHEELS OF THE TRUCK CANNOT BE SITTING ON THE LAWN WHILE THE FRONT IS SITTING OVER THERE. IT’S NOT PHYSICALLY POSSIBLE BECAUSE THE ANGLE BETWEEN THESE TWO WOULD BE GREATER THAN 90 DEGREES, BY A LOT. MAYBE 120. THAT SHOWS ME RIGHT AWAY THAT MY METHOD IS WORKING REALLY BEAUTIFUL.
Rudin called the result what it was: a “PHYSICAL IMPOSSIBILITY” (RT 8039:15). It was “IMPOSSIBLE TO SEE ANYTHING LIKE THIS 517-POINT, THAT HIGH CORNER POINT, ON THIS WHITE TRUCK” (RT 8039:23-25). He acknowledged this was not the position he took at the 402 hearing: “MY PRIOR 402 FROM NO REJECT GOES TO REJECT WITH QUALIFICATION” (RT 8047:10-11). The qualification was about data he was not given: “I WOULD NEED EXTRA DATA TO CROSS-VALIDATE IT, A155 [sic] WHICH I’M NOT GIVEN FOR SOME REASON. I DON’T KNOW WHY. I WOULD NOT BE GIVEN DATA SUPPOSED TO BE PUBLIC” (RT 8047:11-14).
See the trial transcript (RT 8047)
Asked to state his conclusion plainly, Rudin rendered it as a rejection, over the objection of the prosecutor, ADA Imes, which the court overruled (RT 8048:18-22; 8048:26-8049:3):
Q: BASED ON DATA YOU HAVE ONLY, THE WHITE TRUCK IS REJECTED AS BEING THE VEHICLE IN THE VIDEO?
MR. IMES: OBJECTION. MISSTATES HIS TESTIMONY.
THE COURT: OVERRULED. HE CAN ANSWER IF THAT’S HIS OPINION.
Rudin: BASED ON THE DATA I HAVE AND ALL THE METHODS THAT I HAVE AVAILABLE TO ME NOW, I RENDER A REJECTION. YET I ALSO SAID THAT EXPERIMENT IS REQUIRED. AN EXPERIMENT CAN OVERRULE MY REJECTION IF IT TURNS OUT TO BE THAT WAY. OKAY? SO I MEAN I’M OPEN TO THAT AND OPEN TO ACCEPT IT. I WOULD HAVE TO FIND A REASON, BUT RIGHT NOW I DON’T SEE A REASON.
See the trial transcript (RT 8048, 8049)
Two features of that answer matter. The rejection is stated affirmatively, in his own words, “I RENDER A REJECTION,” and it rests on the data he and the jury actually had. He also said the live re-projection experiment was “ABSOLUTELY REQUIRED IN THIS CASE” (RT 8048:6-9). By his words, it could overrule the rejection “IF IT TURNS OUT TO BE THAT WAY,” and “RIGHT NOW I DON’T SEE A REASON.”
The word he would not use. Rudin declined to use the word “excluded.” Asked whether the truck was “excluded as being the vehicle that is represented in the video evidence,” he answered, “THOSE ARE NOT THE WORDS I WOULD USE,” and chose “reject with qualification” instead (RT 8047:5-11). That distinction was his, and it matters.
The hearing outside the jury’s presence. Separately from the pretrial section 402 hearing, the court held another section 402 hearing, outside the jury’s presence, on his communications with the prosecution; the court described its purpose as determining that “AT SOME POINT HE COMMUNICATED WITH VARIOUS PARTIES ABOUT HIS CHANGE OF POSITION” (RT 7909:3-10). In that hearing Rudin described the same point in narrower terms: “THE TRUTH IS THAT IT DID NOT EXCLUDE THE MODEL. IT JUST EXCLUDED THE LIGHT. I MEAN IT JUST EXCLUDED THAT LIGHT” (RT 7911:20-24). The light he meant is the one the State had identified as my rear marker light, the foundation of its identification. In the same hearing he named the other problem: “IT’S THE LENGTH IS TOO SHORT” (RT 7911:14-15). Those remarks describe how he got there. The light the State relied on could not be my marker light, and without it, and with the length not matching, my truck could not be placed in the video.
See the trial transcript (RT 7911)
Before the jury. Before the jury he went further than the light. Asked whether, on the data he had, the white truck was rejected as the vehicle in the video, he answered: “I RENDER A REJECTION” (RT 8048:18-27). That was a qualified rejection of the identification of my truck itself, reached on the available data, while acknowledging that “AN EXPERIMENT CAN OVERRULE MY REJECTION IF IT TURNS OUT TO BE THAT WAY” (RT 8048:26-8049:3). Although Rudin declined to use the word “excluded,” the evidentiary consequence of his qualified rejection was that his analysis did not support identifying my truck as the vehicle depicted. Both parts of his answer belong on the record: the rejection, and the qualification he chose to attach to it.
How the court understood it. The trial court understood his conclusion exactly that way, describing it as “my opinion is I can exclude the vehicle and here’s why I can exclude it” and “MR. MERRITT’S TRUCK IS EXCLUDED AND WHY IT’S EXCLUDED” (RT 7833:6-8; 7930:18-20), and at the motion for new trial, that he “would tend to exclude the defendant’s truck as being the truck” (RT 8958:13-15).
Put plainly: the State had its own expert working for four years to put my truck in that video. It had begun by calling the light in that video my rear marker light. When Rudin finished the geometry, he realized that light could not be mine. My marker light sits high enough on the truck that the awning beam blocks the camera’s view of it, and the vehicle’s dimensions did not match my truck either. He told the jury it was a physical impossibility, and he rendered a rejection, against the interest of the party that hired him. The State’s answer was to stop calling him and bring in a new expert to call the same light something else.
B.2. The State’s mid-trial substitute, Eugene Liscio, disclaimed the identification and conceded the identifying features cannot be seen.
After Rudin’s position moved to a rejection, the State retained Eugene Liscio to supply the “consistent with” opinion about my truck that Rudin would no longer give. Liscio compared the Mitchley video to a three-dimensional laser (FARO) scan of my truck and testified that features in the video were “consistent with” a 2000 Chevrolet truck. That was not an identification, and he said so.
He disclaimed the identification without ambiguity: “I cannot make an identification. Which means I can’t say it is your client’s truck” (RT 5156:1-2). He explained that the same opinion would fit any truck of the same model: “the same model truck, that could be consistent, as well. That’s possible. It would have the same geometry, the same features, and everything else. So I can’t make an identification … I can’t go in and say, well, look, you know, I can tell exactly that it’s this 2000 Chevy truck” (RT 5082:3-8).
As to the illuminated spot at the center of his “consistency” opinion, he repeatedly said he did not know its source: “the honest truth is I don’t know. I don’t know where it’s coming from” (RT 5140:11-13); “I’m just speculating … where the source of that light is from” (RT 5144:28-5145:1); “the honest answer is that I don’t know. I don’t know. I don’t know” (RT 5154:7-8). He went further: “When it comes to these reflections, you know, maybe it might be better to get a physicist and, you know, have them do the analysis with proper lighting and everything else. It’s not a simple answer” (RT 5154:24-27). And he acknowledged that in his own search he “found a vehicle that has a similar back end” (RT 5155:7-8). On the State’s own redirect, asked whether the similar trucks he found were identical, he answered “No,” and added: “in fairness, there could be vehicles in existence that could be similar to the 2000 Chevy truck” (RT 5166:22-27; 5167:11-14). Asked about the box on the back of my truck, he said: “I want to be careful about saying that that open box at the back is a requirement for the analysis. It could be that that open box in the back wasn’t there, and the shadow would still look the same if the lights were mounted in the same position on the back” (RT 5167:25-5168:2).
More than disclaiming the identification, Liscio conceded that the distinguishing features on which any identification would depend cannot be seen in the video. Feature by feature, he testified on cross that the feature is not visible, while the same feature was presented as “consistent with” my truck. A feature that cannot be observed in the video cannot establish a visual match to that feature.
- Rear / compartment marker. Asked whether the marker light on the compartment was an important feature, he answered: “No, because you can’t see it” (RT 5088:19-22); pressed, “in terms of the analysis, if it’s not in the video, then it’s not important because I can’t see it” (RT 5088:28-5089:1). What he then listed as “consistent with the 2000 Chevy truck” was a different feature, “the outline of the rear of the vehicle” (RT 5172:12-18).
- The shadow. Conceded: the outline “is not based on what you’re seeing in the shadow… it’s a trace of the shadow that was seen in the FARO scan data”; the hitch and box detail are not seen (RT 5130:26-5131:4; 5132:4-7; 5132:13-16). Yet the shadow was listed among the characteristics “consistent with the 2000 Chevy truck” (RT 5172:12-18).
- The exhaust pipe. Conceded: “In the shadow, you can’t see if the exhaust pipe goes out an additional distance to the left, correct? — A: Right” (RT 5181:26-5182:1). Yet exhaust position was listed as “consistent with the 2000 Chevy truck” (RT 5172:12-18).
- The illuminated spot. Conceded: source unknown, “I don’t know where it’s coming from”; “I’m just speculating.” It could be a taillight: “that would be one feature that wouldn’t be consistent”; exclusionary? “Possibly. Possibly.” He did not test it (RT 5140:11-13; 5144:28-5145:1; 5145:28-5146:5). Pressed on whether it was a taillight, he said both “I don’t think you can say that’s a taillight” and “you can’t tell from the video whether it is or it isn’t” (RT 5147:27-28; 5148:8-10). All he would say was “it’s illuminated, it lines up with the latch. I don’t know what it is” (RT 5149:12-14). Yet it anchored the opinion: “all these features are consistent with the 2000 Chevy truck” (RT 5081:26-27).
- The running lights. Conceded: “It’s quite likely that it’s not detectible… So, it may be on, but we can’t see it; or it may be off” (RT 5128:14-17). Neither shown nor accounted for.
See the trial transcript (RT 5088)
The shadow comparison has a deeper problem. The outline was generated from the FARO scan of my own truck and then fitted to the video, so any feature of my truck in that outline came from the scan, not from the footage. A comparison like that can still test something, if the video independently shows the same shape. But Liscio conceded, “I didn’t trace the video” (RT 5132:9-10), and that the hitch and box detail are not seen in it. The identifying detail the jury was asked to see came from the model of my truck, not from anything the camera recorded.
Put plainly: the State’s replacement expert told the jury he could not say the truck was mine; that his opinion fit any truck of that model; that he did not know what the light in the video was; that it might be a taillight, which he agreed would be “one feature that wouldn’t be consistent” with my truck and would “possibly” exclude it, and that he never tested it; and that not one of the distinguishing features could actually be seen in the footage. Then he listed those same invisible features as “consistent” with my truck, using a shadow he had traced from a scan of my truck in the first place.
B.3. The defense expert, Gregg Stutchman, excluded my truck on two independent grounds.
Gregg Stutchman, a forensic video analyst, examined the Mitchley video and identified two independent reasons my truck could be excluded. Each rests on a feature the video either should show and does not, or could not show at all if my truck were the vehicle in it.
(a) The running lights are missing where they must appear.
My truck has always-on running and side-marker lights. In a comparison video, Stutchman showed that such lights are plainly visible and separate from the headlights. The Mitchley video shows no such lights where they would have to appear. On redirect, Stutchman tied that absence directly to exclusion (RT 7271:12-25):
Q: At any point in viewing that video … did you see the contrast between the headlight and that running light underneath?
MR. DAUGHERTY: Objection. Cumulative.
THE COURT: Overruled.
Stutchman: No. It’s dark where the running light would be.
Q: Was that a factor in your analysis?
Stutchman: Yes.
Q: And did you use that as a factor to exclude Mr. Merritt’s truck?
Stutchman: Yes.
See the trial transcript (RT 7271)
Watch the porch-camera recording at full frame, not enlarged
He confirmed that this was “your second factor of exclusion” (RT 7272:2-4). Asked on cross, “Do you see anything in the Mitchley video that is consistent with any running light anywhere on the front end of that vehicle?”, he answered: “No” (RT 6982:2-5). A comparison photograph placing my truck and the Mitchley video still side by side is described at Section C.5(e).
(b) The visible light cannot be my marker light.
Stutchman reached the same conclusion about the rear light that Rudin’s geometry had compelled, by an independent route. The side marker light on my truck is mounted high, measured at sixty to sixty-one inches above the ground (RT 6922:12-19). The measurements agree. Sergeant Smith testified that the side marker measured 60 inches from the ground at its bottom and 62 inches at its top (RT 3433:24-26). Stutchman’s sixty to sixty-one inches and Rudin’s 5.17 feet, about 62 inches (RT 8037:21-27), both fall on that same light. At that height it falls above the awning support beam on the Mitchley house, the same structure Rudin called the overhang, which blocked everything above roughly four feet. That beam blocks the marker light from the camera’s view: the marker light “does not show up in the Mitchley video because the beam blocks the view of it from the camera” (RT 6909:5-12). If my truck had passed through the Mitchley video, its marker light could not have been seen at all. Asked whether “if Mr. Merritt’s vehicle was passing through on the Mitchley video, the side light would not [be] visible,” Stutchman answered: “That’s correct. It would be blocked by this beam” (RT 6924:21-24).
See the trial transcript (RT 6922)
But a light is visible in the video, and it sits lower than sixty inches. A light that can be seen cannot be my marker light, which the beam would hide. Stutchman stated it directly (RT 6924:8-15):
See the trial transcript (RT 6924)
Stutchman: This is a side light which I labeled marker light, side marker light, but it’s a side light and this is the ground and this is 60 inches, so you can see clearly this isn’t the marker light on top of the box on Mr. Merritt’s former truck, because you can’t see that because it’s blocked by — by the beam. So this light here exists, and it’s at a height you can still see it, and it can’t possibly be the marker light on Mr. Merritt’s vehicle.
He confirmed each was a basis for exclusion. Asked whether the analysis would “exclude Mr. Merritt’s truck,” he answered: “That would certainly be an exclusion factor” (RT 6922:1-3). Asked whether the sixty-inch side light, “not consistent with this vehicle in the Mitchley video,” was “another individual characteristic that you can use for exclusion,” he answered: “Yes” (RT 6926:9-14).
(c) The light on the side of the truck is a real light. It sits level with the top of the headlight, and it is not a reflection.
As the vehicle in the Mitchley video passes the house, a small light shows on its side, toward the back. That one light decides whether the truck could be mine. The only light my truck has anywhere near that part of the truck is the marker light at the top of the utility box, sixty inches off the ground, and the awning beam on the Mitchley house would hide it from the camera (subsection (b), above). So the State could not call the light my marker light. Its answer was that it was not a light at all. ADA Imes told the jury in closing that it “was more consistent with a side latch and some type of reflection off the side latch,” and that “[w]hat you probably have to be is at a position to be able to catch the light, such as slightly open or ajar” (RT 8202:28-8203:2; 8203:10-11).
The latch was not the State’s first explanation. The State started out calling that light my marker light, the one at the top of the box. The case agent, Sergeant Bachman, wrote the Sheriff’s October 2014 comparison report. At trial, when he testified for the defense on May 2, on examination by Mr. Maline, he told the jury what he had compared the light in the video to (RT 7471:8-28):
Q: Okay. So when — you were aware that Mr. Merritt’s truck had a light on the right-upper side; correct? I will give you 7738 again to refresh your memory.
A: Okay. Okay. The marker light up top.
Q: And in the Mitchley video, what — you did a side-by-side comparison, that — that’s what you put next to the light on Mr. Merritt’s truck; correct?
A: Correct.
Q: Okay. So when you guys looked at the Mitchley video, this — was it just you that looked at it to do this comparison or was it the team that you spoke of?
A: Likely, it was the team that — that noticed similarities and the review of the pictures in the video.
Q: All right. So the team looked at the actual light on Mr. Merritt’s truck and then looked at the Mitchley video and somebody drew a circle around the light on Mr. Merritt’s truck; correct?
A: Yeah, that was me. I authored the report.
Q: Okay. And then somebody — what is the object that there’s a circle around on the Mitchley video?
A: It looks, to me, like you can see the light in the video.
See the trial transcript (RT 7471)
That was the State’s position from the investigation on. It was a light, and it was my marker light. When the defense recalled Bachman on May 23, my counsel put his 2015 preliminary-hearing testimony to him: “that because that marker light is there and seen on the video, that’s how you conclude it’s not the Isuzu Trooper.” He answered that the exhaust pipe was “probably the more prominent one,” and then agreed he had said there was “an inside marker light on the passenger side, rear portion on the vehicle leaving the house” that was not present on the McStays’ Trooper (RT 8080:17-8081:4; Section C.9). Dr. Rudin, the State’s own expert for about four years, was given that same marker light, at 5.17 feet, to place in the video. The geometry failed, because the beam hides anything that high (Section B.1). In February 2019, during trial, ADA Imes told my counsel that Rudin’s software had placed the truck below ground level to make that match, and that Rudin could not validate my truck’s length (RT 7984:2-23; Section E).
See the trial transcript (RT 8080, 8081, 7984)
Only after that did the State’s witnesses start calling the light a reflection. By then the State had already hired a new expert. Eugene Liscio told the jury he was first contacted “somewhere after the — I don’t remember exactly. 18th of February,” and that he submitted his report “March 3rd, I believe” (RT 5129:25-5130:3). The next day, March 4, 2019, Sergeant Smith took the stand. Smith was the State’s case agent at trial (RT 4899:3-5), and he sat with the prosecution through the trial. As I see it, he knew where the State’s theory had gone. On cross-examination by Mr. McGee, he was asked about the light (RT 4968:22-4969:20):
See the trial transcript (RT 4899, 5129, 5130)
Q: And what’s this light above? That’s the taillight; correct?
MR. IMES: Objection. Assumes facts not in evidence, calls for speculation.
THE COURT: Overruled. He can answer.
THE WITNESS: No, sir. That’s not the taillight.
Q: It’s not the taillight?
A: No.
Q: Is it the marker light on the side?
A: I couldn’t tell you what it is. It could be, it could be a reflection. But it’s not the rear brake lights, because you see those turn on, if you’re watching the video.
Q: It’s a reflection? Is — is that not the same light that goes all the way through when the vehicle drives —
MR. IMES: Objection —
MR. McGEE: — in the video.
MR. IMES: Objection. Misstates his testimony. Assumes facts not in evidence.
THE COURT: Overruled. He can answer.
THE WITNESS: No, sir. If you watch the video, you will see it dim and change. However, you can notice it in multiple frames.
Q: And what’s the lighting source for that reflection?
A: Well, it could — this is speculation on my part.
Q: Well, do you know?
A: I believe it to be brake lights or the Mitchley’s porch light.
See the trial transcript (RT 4968, 4969)
Later in the same cross-examination, Smith said it outright (RT 4972:23-4973:9):
Q: Now, you are saying you don’t know what that light is that is seen on the Mitchley video or the illumination that’s on the Mitchley video on the vehicle that drives out of the driveway on the 4th; correct?
A: Correct, it appears to be a reflection or a light.
Q: And if it’s a reflection, you would need something on the vehicle that could reflect it; right?
MR. IMES: Objection. That calls for speculation.
THE COURT: Overruled.
THE WITNESS: I believe I’m saying the latch is what is reflecting.
Q: Now, you haven’t said it yet, but I knew that’s where you were going. The latch, what color was it in 2010?
A: I don’t know.
See the trial transcript (RT 4972, 4973)
The State’s case agent did not know what color the latch was in 2010. The McStays’ own video shows it, below.
Eight days later, on March 12, Liscio testified that the light lined up with a latch and could be a reflection, though he said he did not know what it was (Section B.2). Bachman’s testimony never changed. He testified for the defense in May, beginning May 2, seven weeks after Liscio, and was recalled by the defense on May 23. On May 2 he still described the comparison as my marker light up top, and still said, “It looks, to me, like you can see the light in the video” (RT 7471:8-28). On May 23 he agreed the marker light was one of “these three distinct features” he had used to exclude the McStays’ Trooper (RT 8080:12-16). As I see it, the case agent who built the State’s comparison was never told that the light he identified had become a reflection. Every expert who testified agreed my marker light could not be seen in the porch camera. Liscio said it was not important “because you can’t see it” (RT 5088:19-22), and Stutchman said “it would be blocked by this beam” (RT 6924:21-24). The light in the video never changed. What changed was that the State’s first explanation, my marker light, was proven impossible, and the State needed a new one that still kept my truck in the video.
That leaves three questions. Where does the light sit on the vehicle? Is it a light of its own, or light bouncing off the latch? And does my truck have a light there? The testimony answers all three, and I set it out below, along with every point the State raised against it.
1. Where the light sits: about 39 inches off the ground, level with the top of the headlight.
The Sheriff’s crime scene specialist, C.S.S. Ross, measured my truck in 2014. His report put the bottom of the headlight at 32½ inches from the ground, the top of the headlight at 39 inches, and the bottom of the marker light on the box at 60 inches. Stutchman used those measurements to test the State’s claim by asking where my truck’s lights would appear in the Mitchley video if it were my truck. He used the headlight in the video as his ruler, because my truck’s headlight is a known six and a half inches tall. On April 24, 2019, on direct examination by Mr. Maline, in front of the jury, he explained it with Exhibit 1090, a still from the Mitchley video (RT 6923:10-27):
Stutchman: Okay. So what — what we’re looking at here is the headlight, and as you can see the bottom of the headlight is 32 and a half inches, the top of the headlight from the ground is 39 inches, so that’s six and a half inches, so that gives a known dimension here of that headlight. And so I’ve got a line here on the bottom and a line on the top, and then I used Adobe Photograph CS5 Extended, which has measurements tool, very accurate measurements tool — tool, and used the headlight — six and a half inches — to create a custom scale, so that gave us a custom scale to calculate other dimensions.
So using that custom scale, went down from the bottom of the headlight, 32 and a half inches, and that gives us the ground. Then went from the ground up 60 inches, the height of the bottom of the marker light on the pickup that use to belong to Mr. Merritt, and you can see that the 60 inches put this above the beam, or whatever that is between the camera and the truck, and that would be where the marker light would be on Mr. Merritt’s former truck.
See the trial transcript (RT 6923)
Then he found where the light that can actually be seen sits. He took the frame where the headlight is at a certain spot in the camera’s view, moved forward through the video to the frame where the light on the side reaches that same spot, and laid one frame over the other. Because both lights pass through the same spot along the truck’s own path, they can be compared directly. He told the jury what that showed, using Exhibit 1092 (RT 6925:7-6926:3):
Q: And 1092, what have you done here?
Stutchman: What I have done here is, this is the headlight, and then moving the truck forward through the frames, this is an overlay —
Q: Mr. Stutchman, can I just ask you —
Stutchman: Yeah.
Q: — when you say this is a headlight, if you could just identify for the jury which headlight we are talking about?
Stutchman: Oh, the same one we had in the last one.
Q: So the vehicle is the Mitchley video?
Stutchman: Correct.
Q: Okay.
Stutchman: And then this is the light in question, and the top of the headlight to the ground is 39 inches, and this light is right at the top of the headlight, so this light is about 39 inches from the ground. Again, precluding it from being the marker light on the side of the truck formerly owned by Mr. Merritt, because here’s the 60-inch height, and it would be hidden.
Q: So in other words, is what you’re saying, the side light on this video in the Mitchley video is almost parallel to the headlight?
Stutchman: Same height, correct.
Q: So the — the vehicle that passes through the Mitchley video passes with the headlight and that rear light almost parallel?
Stutchman: Yes.
See the trial transcript (RT 6925, 6926)
He had written the same analysis into his report of April 19, 2019, before he testified. The report explains the overlay this way: “Each light is in approximately the same location within the camera view in the respective frames. This exhibit demonstrates that the marker light is approximately the same height as the top of the headlight with each light being line up in the same position in both images, which is 39” from the ground” (Stutchman report, p. 9). Its conclusion: “The result of the analysis shows that the marker light is even with the top of the headlight. Since, according to the measurements taken by C.S.S. Ross, the bottom of the headlight is 32 ½ from the ground, the top of the headlight is 39” from the ground, and the maker light is 60” from the ground on the truck formerly owned by Mr. Merritt, it precludes the truck in the video from being the truck previously owned by Mr. Merritt” (p. 10). These are the two exhibits from the report.
The report, like the exhibits, calls the visible light a “marker light.” ADA Imes used that wording on cross-examination on April 24 to suggest Stutchman had confused it with my marker light. Stutchman answered him in front of the jury (RT 6966:14-6967:4):
Q: Yet you are saying we see it here?
Stutchman: That’s not what I’m saying.
Q: You are saying that’s the side running light, are you not?
Stutchman: You are talking about one thing. I’m referring to another. On the top of the box of the Merritt vehicle is a marker light. That’s what I’m talking about. You are talking about the light on the side box down lower.
Q: No, sir. You have referred to it multiple as the side running light in your report and your testimony; correct?
Stutchman: I may have.
Q: What you are referring to is that stationary illuminated light that would be on the side of the box at 60 inches; correct?
Stutchman: No. That was not what I was referring to. I was referring to one side of the box, same level — height as the headlight that is seen in the overlay exhibit that I did and also in the channel 7, channel 6 comparison.
See the trial transcript (RT 6966, 6967)
He had said the same on direct that morning: “This is a side light which I labeled marker light, side marker light, but it’s a side light” (RT 6924:8-9). On April 30, on redirect examination by Mr. Maline, he said it again (RT 7249:5-17):
Stutchman: In the Mitchley video, the items were the lights —
Q: When you say “lights,” are you talking about —
Stutchman: Headlights. I’m sorry. The headlights.
Q: Okay.
Stutchman: And if there were what we’ve been referring to as driving lights under the headlights or not. They were the light on the side, and comparing the height — I’m not talking about the top marker light on the box. I’m talking about the one on the side — and how high it was. And it was equal with the height of the top of the headlight, which is 39 inches high.
See the trial transcript (RT 7249)
He walked the jury through the measurement a second time that day and gave the same answer (RT 7254:22-7255:11):
Stutchman: The next was to identify the light. The side light here (indicating). And then the next one was moving it up so that it is overlaid with the frame of the headlight.
So, we have the headlight, we have the side light. We know the top of the headlight is 39 inches. And so, this is about that. That height.
Q: So, you were able to determine that that side light on the vehicle in the video is approximately 39 inches high; is that correct?
Stutchman: Correct.
Q: Okay. Now, since that light is 39 inches, and Mr. Merritt’s side light on his truck is 60 inches on the bottom portion of the light —
Stutchman: Yes.
Q: — that would exclude Mr. Merritt’s truck; is that correct?
Stutchman: Correct.
See the trial transcript (RT 7254, 7255)
ADA Imes challenged the measurement on recross. Here is the whole exchange (RT 7275:11-7276:18):
Q: You said you created a custom scale to do those measurements —
Stutchman: Yes, that’s correct.
Q: Adobe Photoshop, right?
Stutchman: Yes.
Q: Did you do anything to intrinsically or — validate those measurements with other objects within the video?
Stutchman: No. We just did this.
Q: So, were you familiar with Mr. Liscio’s testimony where he used the FARO scan to overlay with the suspect video to verify position, heights, locations, et cetera?
Stutchman: Generally. I don’t know specifically what you’re talking about.
Q: You did nothing to verify with any other material to indicate that those measurements were accurately reflected on as you put them on here, correct?
Stutchman: Correct. They were sufficient as we did them.
Q: So you did not verify the height of that headlight being the range that we’ve already talked about a couple times with, let’s say, the fire hydrant?
Stutchman: No. The fire hydrant was not the same plane. It would not have been usable.
Q: But you would agree, then, with the FARO scan, you can get an accurate measurement of the height of that fire hydrant, correct?
Stutchman: Correct.
Q: And in relation to the headlights, that would show you some internal validation of whether or not your measurements were accurate, correct?
Stutchman: Correct.
Q: But you did not do that in this case?
Stutchman: Correct.
See the trial transcript (RT 7275, 7276)
That is true. He did not cross-check his scale against the hydrant, and the State was entitled to point it out. But it does not change his result, and here is why. A ruler taken from the truck works for things at the truck’s distance from the camera, and the hydrant stands at the curb, which is what he meant by “not the same plane.” His comparison never needed anything outside the truck. Both lights were measured at approximately the same spot in the view, on the same vehicle, against the same headlight, and the ruler was my own truck’s headlight, from the Sheriff’s own measurements. If the truck were mine, its marker light would be at sixty inches, behind the beam. The light that shows is at the top of the headlight.
ADA Imes also got Stutchman to agree, on cross-examination on April 24, that the headlights look round in the first frames because of washout (RT 6976:22-6977:10):
Q: And you would agree that any graininess and quality of the Mitchley video that even the headlights show a lot of washout around them; correct?
Stutchman: I would have to see what you are referring to.
Q: Well, let’s go to — we will look at the video again. It will probably be the easiest. You see right in the initial frames where the headlights come in, they look quite round; right?
Stutchman: Yes.
Q: Okay. The headlights on the defendant’s truck are not round, are they?
Stutchman: No.
Q: That would be washout; correct?
Stutchman: Correct.
Q: And that’s not something that someone intentionally adds to this. It naturally occurs; correct?
Stutchman: Correct.
See the trial transcript (RT 6976, 6977)
On April 30 Stutchman answered the washout point himself. Asked whether “the headlights in the Mitchley video are quite washed out,” he said, “In some frames. Only some frames” (RT 7277:4-7). That does not touch the measurement. The question was about “the initial frames where the headlights come in.” The frame Stutchman measured is the one in his Exhibit 9-A, below, and it has the headlight near the right side of the view, later in the pass, not in those first frames.
Here is the part that cuts against me, and I want it on the page. The 39 inches rules out my marker light, but it does not by itself rule out my truck. Dr. Rudin, the State’s retained expert for about four years, who testified at trial as a defense witness, measured the FARO scan of my truck, the Sheriff’s 3D laser scan of it. He put the “passenger-size light” at 3.22 feet and the latch on the side of the box at “3.333, slightly higher than this” (RT 7960:28-7961:10). That is about 40 inches. So the light Stutchman measured sits at about the height of that latch, and that is the State’s whole theory: that the light is the latch catching light. My truck has no light at 39 inches on that side. So the question that decides it is whether the light in the video is a light of its own, or light bouncing off a latch. Parts 2 through 4 answer that question.
Liscio agreed the height can be worked out this way. On cross-examination by Mr. McGee, he was asked whether, knowing the height of the headlight, he could work out the height of the light at the back from the frames (RT 5157:1-19):
Q: So, if the headlights are leaving the edge of a screen that we’re seeing here, at a certain edge, and you know the height of that headlight, based on that comparison, would you be able to establish the height of the taillight when it — or, the illumination in the rear relative to that same height?
Do you know what I’m saying?
Liscio: I think you’re asking me if I can figure out the height of the illumination near the back of the vehicle.
Q: Correct.
Liscio: Yes. And so, actually, the answer to that is it’s more or less around the latch. In the area of the latch. So, that height is what I would have to —
Q: I’m talking about just the height of the headlight to the height of that illuminescence (sic). They appear to be approximately the same height?
Liscio: I would have to look at it on the model and see how it compares. But there’s —
See the trial transcript (RT 5157)
So the State’s own expert put the light “in the area of the latch,” which Rudin measured at about 40 inches, within about an inch of the top of the headlight. On where the light is, the evidence agrees. The question is what it is.
2. It is a light, and it stays on the whole way through both cameras.
The Mitchley house had two outside cameras recording that night, “on both sides of her house” (San Diego Sheriff’s follow-up report, Det. Laibach, February 18, 2010). Channel 6 is the porch camera, the Mitchley video itself. Channel 7 sits at the end of the house, between the homes, and looks straight out at the street. Liscio, the State’s expert, did not use channel 7 at all (Section B.5). Stutchman did. On April 24, on direct examination by Mr. Maline, he told the jury how he tested whether the light was a light or a reflection (RT 6928:12-6929:4):
Q: And what specifically did you do to either confirm or deny that?
Stutchman: A couple of things. One is that I examined the channel 7 video that’s on the end of the Mitchley house, and the truck drives directly by that camera view on the screen. And then I did a side-by-side video so you could see the truck drive by the channel 7 and then into and through the Mitchley video.
Q: And in that — in that presentation, you actually used some specific software so that you can better show the jury; is that correct?
Stutchman: I am using QuickTime because I can go frame-by-frame or any speed I want.
Q: And can you describe for the jury what is the difference between a light and a reflection?
Stutchman: Well, a light is something that exists. It’s real. A reflection is from light that’s transmitted to a surface that reflects it back.
Q: Okay. And does a reflection require a light source?
Stutchman: It does.
See the trial transcript (RT 6928, 6929)
He told the jury where channel 7 is, “on the end of the Mitchley house and looks straight on out on the street,” and that the two recordings play “at the same time because there is no exact sync point. It’s not like we see the light lined up within a certain reference, but you see both of them progressing at the same time” (RT 6930:2-3; 6930:13-16). Then he played them for the jury (RT 6930:25-6931:25):
See the trial transcript (RT 6930)
Stutchman: Okay. I’m going real slow. Okay. Here is the light in the Mitchley video. Headlight. And here is the headlight in the channel 7 video. They both move to perspective camera views. Now, you will see the headlight then disappears behind the side of the house. And then you will see the sidelight up here. There it is up in the top of the frame. As it moves you can see it better and better. And it’s over here on the Mitchley. And the closer the camera gets, the brighter it gets. And there it is. I will go back and do it again.
Q: From the channel 7 side we saw the light moved through the frames. There was no gap in the light; correct?
Stutchman: No constant.
Q: Light is constant. Okay.
Stutchman: I will go back through one — by the time it comes into the view —
Q: If you could speak up.
Stutchman: I’m sorry. Yes. From the time it goes into the view until the time it leaves the view it’s constant. I will go back and do that a few more times. Here we have it on the Mitchley side. Now, I’m going to play it just at regular speed again. I will do that again just for sake of thoroughness. Okay. Here it is again. I will do that one more time.
Q: Okay. So from the — actually, from both sides we see that that sidelight remains a constant as it moves through the frames; is that correct?
Stutchman: That’s correct.
See the trial transcript (RT 6931)
Watch the porch-camera recording (channel 6) at full frame
He showed it again on April 30, on redirect (RT 7252:13-27):
Stutchman: You see the headlights coming in in both camera views. The channel 7 is looking more straight out at the roadway where the vehicle is, the Mitchley is obviously an angle from the porch camera.
Q: If you could describe what we’re seeing in the channels —
Stutchman: We’re seeing the headlight in channel 7 is gonna disappear behind the wall. And then it will be followed by the side light, which, as it progresses, you can see it more clearly because it’s getting more centered within the camera frame. And then it goes out.
And if you look over to the right, you see it over there, too. In the Mitchley video.
See the trial transcript (RT 7250, 7251, 7252)
Liscio, who did not use channel 7 in his analysis (Section B.5), told the jury on cross-examination by Mr. McGee that the light “behaves differently” there. Asked why he would not say it was a taillight, he answered: “It’s not about what I can or can’t say; it’s about what the evidence can show. And sometimes the evidence can only take you to a certain point. And right now, the evidence can only take me to a point where I can say it’s an illuminated area, it behaves differently in the other video. You have one angle here which you’re not capturing many frames. And, again, looking at it from the other angle, it behaves differently. And so, all I can say is that it’s illuminated, it lines up with the latch. I don’t know what it is. Other than that’s the closest that we can get” (RT 5149:2-14). This was false. The light does not behave differently in channel 7. It stays on from the time it enters that camera’s view until it leaves, as the video above shows and as Stutchman testified after playing both cameras for the jury (RT 6931:15-16). Liscio had not used that camera in his analysis. A few questions later he said, “the reason I didn’t use this video is that I don’t have anything to do any measurement or alignment from. There’s such little to work with here” (RT 5150:3-6).
See the trial transcript (RT 5149)
3. Why it is a light and not the latch.
A reflection is not a light of its own. Something has to shine on a surface for that surface to throw light back. Stutchman explained to the jury what it means that this light stayed on through both cameras (RT 6931:26-6933:2):
Q: So what is significant about the fact that it’s constant and it’s illuminating the whole time?
Stutchman: That would be a strong indicator that it’s actually part of the vehicle. It’s that it’s going not continuously consistently, not a part — not a reflection because a reflection wouldn’t move with the vehicle consistently, which it does in both camera views. And in order for there to be a reflection there has to be a light source that’s transmitting light to a reflective surface.
Q: So in this — there is couple of things I want to ask you. Number 1, if an object passes through a light source and it reflects, there will be — for lack of a better word — a flash; correct? A momentary illumination. Let’s it put that way.
Stutchman: Yes. Right.
Q: When the lights — when it passes through, and the light source is no longer fixated on that, there is no more illumination?
Stutchman: Correct.
Q: So it would be a blip of a light, and then it would be gone?
Stutchman: Right.
Q: Okay. If you had a light or a illumination that continued as we saw here, the light source would have to follow it and move itself?
Stutchman: Precisely. Would have to follow it precisely.
Q: Okay. And there — as you pointed out, there is no light source to either do it momentarily or to be consistent; correct?
Stutchman: Correct.
Q: Okay. And therefore, do you have an opinion as to whether this was a light or a reflection?
Stutchman: A light.
See the trial transcript (RT 6932)
He was then asked whether a light shining on the latch would show anywhere else on the truck (RT 6933:23-28):
Q: Now, if that latch was the recipient of a light source of some sort, would that light source also hit other parts of the vehicle?
Stutchman: It certainly would.
Q: Okay. Did you see any of that?
Stutchman: No. No.
Stutchman also compared the light to the latch itself. He told the jury that Liscio’s main reason for saying it could potentially be a reflection was that it lined up almost exactly with a latch on the side door of my truck’s box, in the model of my truck Liscio laid over the video, “[b]ut that’s not correct” (RT 6933:10-18). Liscio never said it was a reflection. He said “it’s not inconceivable that the latch could be causing some type of reflection” and “I don’t know what that illumination is” (RT 5078:27-28; 5148:18-20). Stutchman layered the light over that latch and showed the jury what he found (RT 6938:10-25):
See the trial transcript (RT 6933)
Q: This is 1099. What are we looking at here?
Stutchman: We are looking at the illumination on the side of the door. I mean, it’s been superimposed because we made layers. And you can see it’s not the same angle, it’s not the same shape, it’s not the same location as the latch.
Q: So this illumination, this light that I’m seeing is more of a horizontal light —
MR. IMES: Objection. Leading.
THE COURT: Sustained.
Q: What’s the difference between the light and the latch?
Stutchman: The light is horizontal. The latch is vertical.
Q: So even if this were a reflection, it wouldn’t match; is that correct?
Stutchman: Right.
See the trial transcript (RT 6938)
The latch itself settles it. In 2010 the box on my truck was primer gray, and the latches were the same flat, unpolished metal, primer gray like the rest of the bed. They were not chrome and they were not curved. The State’s own witness, Sergeant Smith, confirmed the metal. On direct examination by ADA Imes, he testified that under the later white paint the latch was “metal, it’s not chrome or anything,” and agreed it was “gray or silver metal” (RT 4966:20-25). On cross-examination by Mr. McGee, he testified (RT 4973:20-4974:14):
See the trial transcript (RT 4966)
Q: And that latch, you said in 2019, you scraped off the paint?
A: I didn’t scrape off all of the paint, but yes, I scraped to see what was underneath.
Q: And it wasn’t chrome?
A: It was not chrome, no.
Q: It’s just flat metal?
A: Yes.
Q: Do you know what color the rear portion of that vehicle was painted like in 2010?
A: It was gray.
Q: Like a primer gray? I will show you what’s page (sic) 634, see if this refreshes your memory.
A: It does in the sense that it’s gray. I can’t — from the quality of this, I can’t tell you if it’s flat or polished or primer.
Q: Well, in this picture in the report can you see light reflecting off the door — the passenger or driver’s side door?
A: On the picture on the right?
Q: On this one, yes.
A: Yes.
Q: But you can’t see that same reflection off of the rear; correct?
A: No, you don’t see the same type of reflection.
See the trial transcript (RT 4973, 4974)
The Sheriff’s own case agent recorded the same thing in 2014. Sergeant Bachman’s report “Video / Image Comparison – Charles Merritt’s Truck” (Case No. 071304411, Bates 007747) puts a Sheriff’s photograph of my truck beside a still from video of my truck. In the video still, the utility box is gray. On the next page he explains where the video came from and what had changed: “I compared the photos of the truck to video images of the truck recovered from the McStay’s handheld camera. The truck bed appeared to be similar to the bed on the truck at the time it was processed, but the outside utility storage appeared to have been painted since Merritt owned it.” That video came from the McStays’ own camera, from the time I was doing business with them, so it shows the box as it was then.
Sergeant Smith was shown that very picture from Joseph’s camera, on the right side of the page my counsel put in front of him. He said the box was gray, then said that “from the quality of this” he could not tell “if it’s flat or polished or primer.” In the same answer he agreed that light reflects off the cab door in that picture, but “you don’t see the same type of reflection” off the rear (RT 4974:1-14). The picture is below for anyone to judge.
Mr. McGee asked Liscio, on cross-examination, how one reflection could show up in two cameras (RT 5148:12-21):
Q: If that light’s reflecting off of that latch, it’s now reflecting at two angles now, right?
Liscio: When the light hits a source, it disperses light all over. So, it’s not reflecting two, it’s reflecting in an infinite number of directions. That’s why we can see the light from any position.
So, I don’t know if — I don’t know what that illumination is; and so, I don’t know what the source is. I just know that it aligns with the latch. That’s about the best I can offer you.
See the trial transcript (RT 5148)
A standard physics textbook explains the difference between the two kinds of reflection. A smooth, shiny surface follows one rule, “The angle of reflection equals the angle of incidence,” while a rough surface sends light off “in many different directions, or diffused,” and “Diffused light is what allows us to see a sheet of paper from any angle” (OpenStax, College Physics, section 25.2, “The Law of Reflection”). Liscio’s “any position” is the second kind, the way paper or a wall reflects. A surface like that looks only as bright as the light falling on it. That is where the latch theory fails. A flat, primer-gray latch on a flat, primer-gray box scatters light the same way the box around it does. Whatever light fell on that latch fell on the box door around it, and the latch would look like the door it is mounted on. It could not stand out as a bright point of light, in one camera or in two, while the box around it stayed dark. That is the same thing Stutchman told the jury: a source lighting the latch “certainly would” light other parts of the truck, and nothing else was lit.
The State never established what was lighting the latch. On direct examination by ADA Imes, Liscio pointed to several lights and said he did not know (RT 5078:28-5079:28):
Liscio: So — and the fact that you can see the vehicle — when it firsts come into view, you see it bright, then — then it keeps moving. It goes dim, and then it starts getting brighter again. Right. So just before it exits the screen, it’s bright again. So what could be happening here, is that there are other lights on in the street, a street light or a house light or things like that, and when it was farther away there’s something shining on it — okay — that illuminates it.
And as it starts moving, it moves out of the way of this light, and it starts transitioning to — gets brighter and brighter and brighter because there’s another light that’s illuminating it. So that’s — it’s quite conceivable that that is what is happening. There are certainly lights on the street which could cause that. I can show you, if we move around the street here, there’s some kind of a spotlight. So this is the — the neighbor’s home with the security camera, and over here there’s like a spotlight that’s pointed right at the vehicle.
I don’t know if it was on or off or if it was even casting a shadow, but I’m just pointing out there’s lights here. This one is behind a bush, so it’s somewhat blocked. There’s another light here at the front of the house. There’s a streetlight right here. So, you know, I don’t know — I don’t know — I don’t know what the explanation is or why. I mean, there’s — there’s the porch light, as well — right — so it could be coming in. Maybe the porch light is casting something, I don’t know. But I think you can see from this respect here, if I zoom in and I turn this off and on, it looks like it’s just something coming from the latch.
See the trial transcript (RT 5079)
ADA Imes raised the porch light with Stutchman on cross-examination on April 24 (RT 6973:5-27):
Q: That would also be getting closer to the front porch light on the Mitchley video?
Stutchman: The camera was on the front porch.
Q: Therefore, that change in aspect ratio between where that — whatever is causing that illumination and that front porch light changes, could be the reason why it changes in its luminosity; correct?
Stutchman: That’s not what my analysis showed.
Q: But it’s possible, though, isn’t it?
Stutchman: Anything is possible, but it’s not consistent with the evidence.
Q: Well, the evidence is it changes luminosity, correct, brightness; correct?
Stutchman: It gets brighter.
Q: Also disappears; correct?
Stutchman: Very briefly.
Q: Right. And it changes its position in relation to a front porch light that comes on; correct?
Stutchman: That’s also where the camera is at.
Q: But the camera is not going to cause the reflection or the illumination; right?
Stutchman: The illumination as it gets closer to the camera would be more visible.
Earlier in that cross-examination, Stutchman agreed he had done “no independent research to verify any other light sources” beyond the two videos (RT 6961:16-23). Liscio, the State’s expert, never identified a source either. He told the jury he did not know what it was (RT 5148:18-20). The answer is the same for every light Liscio pointed to. A street light, a spotlight, a house light or the porch light, falling on a flat, primer-gray latch, falls just as much on the primer-gray box around it. Not one of them could make the latch shine while the box beside it stayed dark. When my counsel asked Liscio whether “[t]he hydrant then should be illuminated by the light source that illuminates that spot,” ADA Imes objected that it assumed facts not in evidence, and the court sustained the objection (RT 5156:15-19).
See the trial transcript (RT 6961, 5156)
In closing, ADA Imes argued that the latch did not need to be shiny. He pointed to a water valve cover in the street, “steel or whatever it was as the headlights hit it? It has a reflection,” and said “[t]he yellow fire hydrant had a reflection in this video. So you don’t have to be chrome” (RT 8203:5-9). Those things were in the path of the headlights. The headlights point forward, away from the side of the box, and nothing in either camera shows light falling on the side of that truck. He also told the jury the latch was “very difficult to manipulate,” attributing it to Liscio “and I believe, maybe, even Sergeant Smith” (RT 8203:11-14). Liscio was the source. He went to see my truck once, the day before he testified, in March 2019: “So yesterday, I requested to go see the vehicle” (RT 5070:5). In his direct testimony he said: “in some of the photos that I seen on the truck, over the past, as well, those latches, they get stuck open or they’re loose. So there was one that was, like, flopping around, even yesterday. And the one that’s back there was open. Actually, it was hard to close for whatever reason. I don’t know. So again, it’s not inconceivable that back then, an old truck, it’s a work truck, maybe it gets beat up, you know, the handles might be a little bit harder to open or close or sometimes they get stuck a little bit open.” My counsel moved to strike that as speculation, and the court overruled the motion (RT 5080:1-13; Section D.1). What he saw was the truck in 2019, nine years after the video. Everything else came from photographs, and what he said about 2010 was a guess, in his own words “not inconceivable” and “maybe.” No witness testified that the latch was hard to work in 2010, and Sergeant Smith never said it at all. That latch was on my truck, and it was not hard to work. When the jury viewed my truck in the parking lot, the latches had been clipped open, and a juror asked, “The latches are clipped open, can we see them flipped back, as well?” The court had the gate put up and the latches closed (RT 7646:12-18). I was there. A stick had been wedged inside the latch to hold it slightly open, and after the juror asked, the detective hit it to close the latch. How the State argued all of this to the jury is covered in Section C.8.
See the trial transcript (RT 5080, 7646, 8202, 8203)
4. The four frames.
In the porch camera, the light drops out of view for four frames and then comes back. Stutchman put that at about a third of a second (RT 7272:13). The State relied on that gap. ADA Imes stepped Stutchman through the frames on April 24, and his first answer was the beam (RT 6964:9-28):
Q: Okay. So as we progress to the next frame, where did it go?
Stutchman: It looked like it went behind the beam.
Q: Oh, but there is no speed bump there to raise the level of the truck; right?
Stutchman: Correct. Unless it’s the angle of the truck.
Q: Oh, but you said angles don’t matter.
MR. MALINE: Objection. Misstates the testimony.
THE COURT: Sustained as argumentative.
Q: Didn’t you say right before the break that angles don’t matter?
Stutchman: I don’t recall what you are talking about.
Q: It’s still not there, is it, after we advance the frame?
Stutchman: I do not see it.
Q: Still not there, is it?
Stutchman: I do not see it. There it is.
Q: Oh, it’s back, right, after, what, 3 frames?
Stutchman: I think so.
See the trial transcript (RT 6964)
A light at 39 inches is well below the beam, so that first answer does not hold, and I am not going to pretend he never gave it. Later the same afternoon, still on cross-examination by ADA Imes, he gave the explanation he held to from then on (RT 6971:27-6972:8):
Q: But you would still also agree that if that was a light illuminated by a bulb, it would be constant; correct?
Stutchman: Correct.
Q: And it would not disappear from the view of the camera unless there is some obstruction; correct?
Stutchman: Either that or compression artifacts could do that too.
Q: But in this case I have shown you that it does disappear, correct, for four frames?
Stutchman: Correct.
See the trial transcript (RT 6971, 6972, 6973)
On April 30, ADA Imes came back to it on cross (RT 7241:13-7242:13):
Q: Except for in the Mitchley video, it disappears, does it not?
Stutchman: It the light is gone for a fraction of a second, a third of a second —
Q: Four frames, right?
Stutchman: Correct.
Q: And then it changes intensity — correct? — in the fifth frame, correct?
Stutchman: I need to tell you what’s going on when that happens.
Q: Well, you weren’t there that day, were you not?
MR. MALINE: Your Honor, can the witness explain his answer?
THE COURT: Overruled.
Q: You were not there that day, correct?
Stutchman: I was not there that day. But I understand the video and the compression artifacts and the —
Q: And
Stutchman: — compression that this was captured with. And how compression artifacts work and how they find detail.
Q: But you agreed last Thursday that the light disappeared for four frames, correct?
Stutchman: The light was not visible for those frames. It doesn’t mean it wasn’t there. And then when it comes back, if you see a fragment of it and then it comes back to full luminance, that is the result of compression artifact masking.
See the trial transcript (RT 7241, 7242)
On redirect on April 30, Mr. Maline asked him to show the jury, and he did, frame by frame (RT 7272:8-7274:23):
Q: Now, in reviewing the Mitchley video. Counsel just on Cross-Examination today mentioned again that the light, this side marker light on the video that we see in the Mitchley video, disappears for — he says four frames. I think you said —
Stutchman: About a third of a second.
Q: Okay. And is that a result of any type of reflection activity?
Stutchman: No.
MR. IMES: Objection. Calls for speculation.
THE COURT: Overruled. He can offer his opinion.
Stutchman: No. From my analysis, it’s a result of compression artifacts.
Q: Is it possible to view the Mitchley video and describe what you’re talking about —
Stutchman: Yes.
Q: — compression artifacts?
Stutchman: When the lossy video compression is part of a video, it actually decreases the fine data in some areas, and it leaves compression artifacts, which I’ll be showing you, that are like dancing pixels.
Q: Now, Mr. Liscio also talked about the compression artifacts in the Mitchley video as well, correct?
Stutchman: Yes.
Q: Okay.
Stutchman: Are we ready?
Q: Yes.
Stutchman: Can we have the lights? On the screen.
[A recording was played in open court.]
Stutchman: Okay. What I’m going to do is play it. In the dark areas here (indicating), watch for what looks like dancing pixels. See these areas here that look like dancing pixels? Those are compression artifacts.
Q: Is there a way to do it wider and then point out where you see the compression artifacts?
Stutchman: Yes. I’m going to do it frame by frame.
So, here is where the side light is seen. And then we see these artifacts. They’re visibly there. And then follow this one. That becomes a light.
So the light is actually there, it’s just masked by the artifacts.
Q: And that would be common in a situation where you have a lower-quality surveillance video?
Stutchman: Where you have a lossy compression video.
Q: Can you explain — what is that?
Stutchman: Lossy compression means you are losing some quality by compressing it.
The reason for compression is to reduce the size of — the file size of the video so you can store more on a single hard drive without taking up the whole space. So they use lossy compression that makes the file size smaller, but you also lose quality because of it.
Q: Is that a situation when you have surveillance video that’s running continuously with lots of video being shot?
Stutchman: Yes. Very, very common.
Q: You would want to compress it into a file that could be stored so you could store more of it?
Stutchman: Store it or streamed.
Q: Okay. Are you done showing that?
Stutchman: Yes, I am.
Q: Is it your opinion that that light doesn’t — it is — it’s masked by the compression artifacts at that stage?
Stutchman: That’s correct.
See the trial transcript (RT 7272, 7273, 7274)
ADA Imes did not challenge the compression explanation of the four frames on recross (RT 7274:25-7278:20), and no witness was called to answer it. In closing, ADA Imes told the jury, “even with Mr. Stutchman, the defense witness, that it changed for four frames” (RT 8202:23-25), and left out the explanation the same witness gave. How the cross-examination on this point was handled is covered in Section C.5.
5. Channel 7: the video shows it.
Stutchman measured the height of the light in the porch camera only. ADA Imes made that point on cross on April 30, and Stutchman answered it (RT 7241:5-12):
Q: You didn’t do that for that channel 7 video, did you?
Stutchman: I didn’t have any — I didn’t have comparison measurements to do that in this one.
Q: So, it would be irresponsible to draw a conclusion that it, in fact, is the side marker light?
Stutchman: No. Because you can see it in both the side by side in both the Mitchley video and the channel 7.
No measurement is needed to see this, and the video is above for anyone to watch. In channel 7, the headlight runs along the top of the frame and goes out of view, and the light on the side follows it out at the same point, along the same line. Two lights on the same side of the same truck that leave the frame at the same point are at the same height, the same reasoning Stutchman used in the porch camera. That is the height of the top of the headlight, the same height Stutchman measured in the porch camera, about 39 inches. My truck has no light there, and the one light it does have on that side of the box, sixty inches up, never appears.
Put plainly: the light on the side of that vehicle sits about 39 inches off the ground, level with the top of the headlight, measured against my own truck’s headlight. That rules out my marker light, which is sixty inches up and behind the beam. The State’s answer was that the light is my latch, which sits at about that height, catching light. But the light stays on from the time it enters channel 7 until it leaves the porch camera, and Stutchman explained the four-frame gap as compression masking, and no witness was called to answer it. My latch was flat, primer-gray metal on a flat, primer-gray box. It could not shine brighter than the box around it, and nothing in either camera shows any light falling on that box. No one ever established a source. It is a light, my truck has no light there, and the vehicle in the Mitchley video is not my truck.
(d) The word “excluded” in his written report.
On recross, the prosecutor, ADA Imes, established that Stutchman’s written reports did not use the word “excluded” in their opinions-and-conclusions section. Asked, “In neither of your reports did you say that that was an exclusionary factor, did you?”, he answered: “I thought that I did. In the first report. I showed it as an exhibit in that report.” Told to “[s]how me in the opinions and conclusions, last page, where you used the word ‘excluded,’” he answered: “I’m sorry. It’s not there” (RT 7279:10-16). On redirect he identified where it was: “That image is in my report. Comparing the headlights,” on page 3, “[c]omparing the headlights from the Mitchley video truck with the headlights and the parking lights of the truck that was image 0246JPG” (RT 7279:21-28). Just before that recross, asked whether the running light extending out below the headlight was a factor, he had answered “Yes,” “[b]ecause it’s clearly obvious where the headlight is versus where the driving light is” (RT 7278:25-7279:4). So the comparison was in his report; only the word “excluded” was not on the conclusions page. That is so, and it does not change what he told the jury under oath: that the missing running lights and the marker-light geometry each exclude my truck (RT 6922; 6924; 6926; 7271-7272). The report’s wording was a point for cross-examination. It was not a retraction of his sworn analysis.
Put plainly: my truck has front running lights that are always on; the video shows darkness where they would be. That is one exclusion. Separately, at the rear, the one light that is visible sits too low to be my marker light, which is mounted high enough that the awning beam would block the camera’s view of it. That is a second. Two independent exclusion factors, on two different lights, from a witness the State spent its closing calling a hired critic who did nothing.
B.4. Where the expert evidence came out.
Side by side, the expert evidence runs one way. The State’s own expert of four years rejected my truck on the available data, because the identification was geometrically impossible. The mid-trial substitute could say only that the vehicle was “consistent with” a model of truck shared by countless others, while disclaiming any identification and conceding that the features the identification required cannot be seen. The defense expert excluded it on two independent grounds. No qualified witness identified the truck as mine. The State had no expert testimony capable of placing my vehicle at the scene during the time my alibi covered. What remained was argument.
B.5. The second camera: the side-yard view.
The Mitchley house had a second camera, looking out from between the homes at a different angle (the side-yard view, channel 7). It recorded the same vehicle.
In that view, I see the light at the rear of the vehicle stay bright and steady as the vehicle leaves the frame, the way a taillight does.
The State’s own expert could not say otherwise. Asked about that light, Liscio said: “I don’t think you can say that’s a taillight,” and also “you can’t tell from the video whether it is or it isn’t” (RT 5147:27-28; 5148:8-10). He agreed that if it is a taillight, “that would be one feature that wouldn’t be consistent” with my truck, and asked whether that would exclude my truck, answered: “Possibly. Possibly.” He never tested it (RT 5145:28-5146:5). Pressed further, he conceded “it’s possible that it’s another vehicle” and “I’m not saying that this is your client’s vehicle” (RT 5150:18-5151:13).
He did not use this camera at all: “the reason I didn’t use this video is that I don’t have anything to do any measurement or alignment from” (RT 5150:3-6). Asked whether he still stood behind his statement that there was nothing important in it, he answered: “I don’t know” (RT 5149:15-23).
The defense expert, Gregg Stutchman, did use it. What he found in this camera, why it shows the light is a light of its own, and the video of the two cameras side by side are set out in Section B.3(c), above.
Put plainly: the State had a second camera that watched the vehicle leave. Its own expert refused to use it, would not say the light was not a taillight, and admitted that if it was, the truck was not mine. The only expert who examined both camera views found the light stayed on through both of them, and testified that it was a light, not a reflection.
C. What the jury was told instead
Because the expert evidence rejected, excluded, and disclaimed the identification, the State could not prove through testimony that the truck in the video was mine. In closing argument and on cross-examination, the prosecutors put before the jury, as established fact, statements the evidence did not support and in several places flatly contradicted.
C.1. Liscio’s disclaimed speculation, argued as identifying fact.
Liscio testified that he could not make an identification and that the distinguishing features were not visible in the video (Section B.2). In closing, the prosecutor, ADA Imes, told the jury the opposite.
A prosecutor may ask a jury to draw an identification from the evidence as a whole, even one no expert would make. That is not my complaint. My complaint is narrower: the prosecutor told the jury the witness had shown identifying features that the witness testified could not be seen.
He told the jury the unique features were shown to be consistent and visible: that Liscio “inserts the model, and he inserts the shadow trace that he did, and he shows you the consistency of that shadow with unique characteristics of the defendant’s” truck, “its uniqueness based on the rear-end characteristics of the defendant’s truck” (RT 8204:26-8205:6), and that “those unique class characteristics, that box, that trailer hitch, the shape of the bumper — Mr. Liscio even showed you how that shape is construed and manipulated by the shape of the curb and how that shadow is consistent with placement of the” truck (RT 8205:7-10). Liscio had conceded that none of that detail is visible in the video, and that the outline was a trace from the FARO scan of my own truck (RT 5130:26-5131:4; 5132:4-7; 5132:13-16). As to “that box” in particular, he had told the jury, on the State’s own redirect, that the shadow “would still look the same” if the box “wasn’t there” (RT 5167:25-5168:2). A feature whose absence would not change the shadow cannot make the shadow unique to my truck.
The same argument asserted, as observed fact, that “[t]he shadow left by that vehicle has distinct characteristics” (RT 8201:19-20). The witness on whose analysis that rested had testified to the contrary. The outline the jury was shown was not taken from the video at all: “No. What I’m doing is I’m projecting the — it’s a trace of the shadow that was seen in the FARO scan data, and projecting that on the roadway where the video is” (RT 5131:1-4); “that trace that’s there is not from — I didn’t trace the video” (RT 5132:9-10); “[i]t’s an overlay of what we measured someplace else, and then overlay of the video” (RT 5132:12-13). Asked whether the exhibit should be understood to show those features in the footage: “You’re not saying any of that detail is seen here, correct? — A: Correct… So it shouldn’t be understood as ‘Oh yeah, we can see all that stuff here, too’? — A: Correct” (RT 5132:4-16). The “distinct characteristics” described to the jury were characteristics of a laser scan of my own truck, laid over the video. They were not observed in the evidence. They were imported into it.
See the trial transcript (RT 5131, 5132)
He told the jury the exhaust pipe “matches even the pixelation zoomed in, frame by frame, track by track” (RT 8206:10-12), when Liscio had conceded the exhaust cannot be seen in the shadow at all (RT 5181:26-5182:1). He told the jury the reflection theory was validated: “he figured out this trajectory of the side latch through the video being consistent. Low and behold, shocking, Mr. Liscio was right” (RT 8207:22-24), presenting as proven a conclusion the witness had reached only with “I don’t know” and “I’m just speculating” (RT 5144:28-5145:1).
See the trial transcript (RT 8207)
And he urged the jury to find the very identification the witness had refused to make (RT 8272:1-8):
THE PROSECUTOR (ADA IMES): YOU HAVE A TRUCK THAT CANNOT BE EXCLUDED. YOU HAVE A TRUCK THAT CANNOT BE EXCLUDED FROM THE MITCHLEY VIDEO. YOU HAVE A TRUCK THAT CANNOT BE EXCLUDED FROM THE TIRE DEPRESSIONS IN THE DESERT. IS IT CONCLUSIVE PROOF? NO. BUT IS IT A COMPELLING AND REASONABLE INTERPRETATION THAT IS, IN FACT, THE DEFENDANT’S TRUCK GIVEN THE UNIQUE CHARACTERISTIC, THE TIMING, THE LOCATION …
See the trial transcript (RT 8272)
The witness whose analysis that argument rests on had testified: “I cannot make an identification. Which means I can’t say it is your client’s truck” (RT 5156:1-2). The prosecutor’s own “IS IT CONCLUSIVE PROOF? NO” does not fix the problem; it sharpens it. Having conceded the evidence was not conclusive, he still told the jury it showed the truck was “in fact, the defendant’s truck,” turning the expert’s non-identification into the State’s conclusion of identity.
The phrase “a truck that cannot be excluded” was itself built. Liscio had already disclaimed identification twice: “So I can’t make an identification with the — with the evidence that I have” (RT 5082:5-6); “I cannot make an identification. Which means I can’t say it is your client’s truck” (RT 5155:25-5156:2). Only after those disclaimers did the prosecutor elicit the single hedge the closing phrase rests on: “I believe your ultimate conclusion was Mr. Merritt’s vehicle cannot be excluded from being the vehicle that appeared in the vehicle [sic]; is that right? — That’s correct” (RT 5171:24-28). Non-exclusion, from a witness who has just said he cannot identify the vehicle, is not an identification; it is the absence of one. And on redirect, after Liscio had conceded on cross that the distinguishing features are not visible, the prosecutor had him re-affirm “the unique nature of the shadow behind the truck” (RT 5165:27-5166:6), eliciting again the characterization the witness had just disavowed.
The State’s own rebuttal confirms the overstatement. In rebuttal, the prosecutor, ADA Rodriguez, described Liscio’s conclusion in far weaker terms: he “basically said, I can’t exclude the truck” (RT 8449:14-17), which is much closer to what Liscio actually said. Having walked the expert testimony back to non-exclusion, the State then rebuilt “the defendant’s truck” on “all of those items of evidence together” (RT 8450:5-7), not on Liscio’s analysis.
See the trial transcript (RT 8449)
Put plainly: the expert said, “I cannot say it is your client’s truck.” The prosecutor said, “it is, in fact, the defendant’s truck.” Same evidence, described by the man who examined it and by the man who needed a conviction. When the State returned in rebuttal, it accurately described Liscio’s conclusion as an inability to exclude my truck. That demonstrates the distinction the prosecutors themselves recognized: Liscio had not identified my truck. Yet in closing, the State had invited the jury to treat invisible distinguishing features as though they established precisely that identification.
C.2. Rudin was described to the jury as having come around to the State’s theory. He had not.
The argument did not stop at overstating Liscio. It told the jury that Dr. Rudin, the State’s own expert whose analysis had moved to a rejection, had come around to the State’s theory of the light. The prosecutor, ADA Imes, said Rudin “used, during most of his analysis, the side light, not the latch,” and that only after going home overnight did he “figured out this trajectory of the side latch through the video being consistent” (RT 8207:18-23). Then: “Low and behold, shocking, Mr. Liscio was right. It must have been the side latch causing some type of refection because it’s consistent through the video, and it’s consistent with the location of the side latch” (RT 8207:23-26). And: “That latch is consistent even in his experiment” (RT 8207:27-28).
Rudin adopted the trajectory point, and nothing more. After preparing visuals overnight, he testified that the two features “fall exactly same trajectory” (RT 7951:3-9). What he never did was adopt Liscio’s explanation that the light was a reflection off the latch, or say that Liscio was right. He confined his conclusion to the trajectory of the features. He tracked an illuminated feature in the video that he twice refused to identify. Describing the flash point, he told the jury: “We don’t know what it is, but we call it a real light” (RT 7951:26-27). Tracking it across the frames: “I tracked the — whatever, mystery light — and we don’t know what it is, right, so I call it mystery light” (RT 7952:5-7).
See the trial transcript (RT 7951)
His conclusion was about geometry, and he limited it himself. When defense counsel McGee pressed him toward flashing, Rudin drew the line: “So now you’re asking me about flashing and all this which is a different issue. Right now I’m addressing a different issue, what is the trajectory… What I’m saying, simply, that this two features will follow the same trajectory” (RT 7954:11-16). “That’s my main conclusion on this” (RT 7954:18).
He was handed the reflection theory in open court and did not take it. Counsel put the premise to him: “If there is anything going through — or this is hitting some reflector, causing some reflecting, going through some point, the other latch will go through the exact same point?” (RT 7954:23-25). Rudin said nothing about a reflector, a reflection, or a latch as the source of the light. He answered about the timing of video frames, and qualified even that: “Up to synchronization of video frames because frames are not exactly — they’re one third- — I’m assuming. I have never examined original DVR” (RT 7954:26-28).
The record contains no adoption by Rudin of a reflection, of the latch as the source of the light, or of Liscio’s opinion. It contains a witness who called the feature a mystery light, kept his conclusion to trajectory, and turned down the reflector premise when it was offered. The prosecutor told the jury the opposite, and the conversion he described was not a gloss on Rudin’s testimony but a replacement for it. Its function in the argument was structural. The State’s photogrammetry rested on Liscio alone, and Liscio had disclaimed the identification. A corroborating expert was needed. The State did not have one, so it described the expert it had as though he were the expert it needed.
Put plainly: the State’s own expert of four years looked at that spot of light and told the jury, twice, that no one knows what it is. He called it a mystery light. Asked directly whether it was a reflection off something, he would not say so. The prosecutor told the jury that Rudin went home, worked it out overnight, and came back agreeing with the State’s expert. The record contains no such change of mind.
C.3. Two prosecutors told the jury the defense expert called Rudin’s work “flawed.” Under oath, he gave only a conditional answer.
On cross-examination, the prosecutor, ADA Imes, tried repeatedly to get Stutchman to say he had found Rudin’s work flawed. He never said it without a condition: the work he criticized he attributed to the Sheriff’s Department, and he said he had never seen Rudin’s results. The prosecutor then told the jury, in closing, that the witness had said it, and a second prosecutor, ADA Rodriguez, repeated and added to it in rebuttal, where the defense could not respond.
Asked whether he found Rudin’s methods flawed, Stutchman testified he had prepared no report on Rudin and did not know the work was Rudin’s (RT 7243:2-11):
Q: In this case, you also had the chance to review the work of a Dr. Lenny Rudin, did you not?
Stutchman: Yes, I did.
Q: And isn’t it true you found his methods to be flawed?
Stutchman: I didn’t prepare any report on Dr. Lenny Rudin.
Q: Ahhh. Yes, you did.
Stutchman: Did I?
Q: Did you not know that?
Stutchman: No, I did not.
The prosecutor then directed him to his report: page 3, where he criticized “the analysis of the SB model 2,” and page 5, where the second sentence of his summary used the word “flawed.” Stutchman said, “I’m not seeing where I said ‘flawed,’” and when shown the word, “Yes. I see that” (RT 7243:12-7244:11). Pressed further, he testified that he had attributed the work he criticized to the Sheriff’s Department, did not know it was Rudin’s, never saw a report from Rudin, and would not say Rudin’s results were flawed (RT 7244:12-28):
Q: Were you aware that that was the work of Dr. Lenny Rudin from Cognitech?
Stutchman: I did not.
Q: Matter of fact, you attribute it to the sheriff’s department?
Stutchman: Correct.
Q: But nonetheless, you found his work flawed, correct?
Stutchman: Well, the dimensions are off. … The dimensions of this truck I’m looking at are off. Are skewed.
Q: From his work. What you were looking at of his work.
Stutchman: If that was his work, then yes.
Q: And his results were flawed, were they not?
Stutchman: I actually don’t know what his results were. I never saw a report from him.
See the trial transcript (RT 7244)
He accepted “flawed” only on a condition, “if that was his work,” as to a fact he disputed, and he did not accept the ultimate point: he had never seen Rudin’s results. The prosecutor supplied the Rudin attribution. The witness never did.
In closing, the prosecutor, ADA Imes, told the jury the witness had said it (RT 8209:9-14):
THE PROSECUTOR (ADA IMES): Even the defense’s own witness, Mr. Stutchman, said Lenny’s work was flawed. He tried to attribute it to the Sheriff’s Department. Maybe, he unwittingly didn’t realize it was, I guess, his idol, Mr. Rudin, who had done that work. He seemed quite embarrassed when he testified to that.
See the trial transcript (RT 8209)
The prosecutor’s account removed the qualifications that made the testimony meaningful. Stutchman had criticized dimensions in material he attributed to the Sheriff’s Department. When the prosecutor attributed that material to Rudin, Stutchman answered conditionally: “If that was his work, then yes.” Asked whether Rudin’s results were flawed, he expressly said he did not know those results and had never seen Rudin’s report. The closing argument omitted both limitations, presenting a conditional answer about disputed authorship as an unqualified condemnation of Rudin’s work. The additional assertions that Rudin was Stutchman’s “idol” and that Stutchman appeared embarrassed were the prosecutor’s characterizations, not testimony.
In rebuttal, a second prosecutor, ADA Rodriguez, repeated it and added to it (RT 8441:7-11):
THE PROSECUTOR (ADA RODRIGUEZ): So we have Stutchman that conceded the characteristics that match the truck. Interestingly enough, he called Dr. Lenny’s work flawed until Dr. Lenny became a defense witness. Then all of a sudden, he’s a creative genius. Look at the flip flop in opinion.
See the trial transcript (RT 8441)
Stutchman never called Rudin a “creative genius” and never praised him anywhere in the record. The “flip flop” has no testimony behind it. The rebuttal compounded the original misstatement with an invented reversal, delivered at the one stage of argument the defense could not answer.
This does not depend on whose work Stutchman actually criticized. The word “flawed” did appear in his written report, attached to a comparison he understood to be the Sheriff’s Department’s work, which is exactly the attribution he would not make on the stand without a condition. Even if that comparison had been Rudin’s, he testified he did not know that and had never seen Rudin’s results. The jury was told, without the condition, something the witness said only with one.
The same closing used the same witness three incompatible ways. Where he helped the State, he was a credible corroborator: “you heard, even with Mr. Stutchman, the defense witness, that it changed for four frames” (RT 8202:23-25). Then he had done nothing: “STUTCHMAN DID NO MORE THAN BLOW UP AN AERIAL PICTURE OF THE DESERT. ALL HE WAS CALLED FOR WAS TO CRITICIZE EUGENE LISCIO” (RT 8257:3-5). Then he was the source of a Rudin criticism he had given only on a condition (RT 8209:9-14). The dismissal is itself false: Stutchman performed photogrammetry, conducted the sixty-to-sixty-one-inch marker-light analysis, and gave two independent exclusion factors (Section B.3).
Put plainly: the prosecutor kept asking. The most the witness gave was “if that was his work, then yes,” and then: I never saw Rudin’s report; I don’t know what his results were. So the prosecutor told the jury he had said yes, with no condition, and added that Rudin was his idol and that he looked embarrassed, which no witness ever said. Then a second prosecutor stood up in rebuttal, where no one could answer him, and described a “creative genius” flip-flop that never happened.
C.4. Rudin’s method was described to the jury as an invention. He described it as the opposite.
The prosecutor, ADA Imes, told the jury that Rudin had confessed to inventing his method for this case: “what did he tell you? It was a process I dreamt up. It was a process that’s never been used before, never been validated before, never been used by others for validation” (RT 8208:17-20).
See the trial transcript (RT 8208)
Rudin described his analysis as “classical for grammetry,” classical “not in the sense that this is an old method, but it’s a variation on an old method that I came up with in 1995” (RT 7957:1-3). He also said, “this is something I’ve been thinking forever since that 402 hearing” (RT 7957:3-4). He also testified that his method was “exactly the same method people use for human heights, and that was validated,” and “[i]n my opinion it’s completely validated” (RT 8030-8031).
What Rudin identified as the limitation was not his method. It was the evidence: “We don’t have a method — that’s going back to my principal. We don’t are have a method to look at bunch of lights and say what is it. Because the problem is physically not well defined. You don’t have enough information” (RT 7970:25-28). Rudin distinguished a limitation in the available evidence from a limitation in the underlying principles of photogrammetry. He described his approach as a variation on an old method, which he tied to 1995, and testified that the analogous methodology used for human-height analysis had been validated. That does not, by itself, establish that every application of his approach had been independently validated. But it does not support the claim that he invented an entirely new method. More importantly, Rudin identified the fundamental problem with the video: the illuminated points did not provide sufficient information to determine confidently what produced them. That limitation applied to any expert attempting to identify the same features, including Liscio. The prosecution never applied that same limitation consistently to Liscio’s analysis, even though his identification theory depended on interpreting the same unresolved visual features. The prosecutor took a limitation the witness located in the evidence and recast it as a defect in the witness. The jury was left to understand that the State’s expert had a sound method and the reversed expert had a homemade one, when the testimony that argument was drawn from had established that the evidence itself does not contain what an identification requires. The State’s own argument confirms it, used against Rudin alone: “Dr. Rudin even said, the actual measurements of the truck are unknown in the suspect video” (RT 8209:20-22). If the measurements of the vehicle in the video are unknown, they are unknown for every expert who examined it. The State used that fact to attack the expert who rejected my truck, and never once applied it to the expert its identification depended on.
Put plainly: Rudin never said his method was junk. He said that when all you have is a scattering of lights in a grainy night video, no method, not his, not Liscio’s, not anyone’s, can tell you what produced them, because the information is not there. The prosecutor turned that into a confession of incompetence, and then asked the jury to accept an identification from exactly the kind of analysis Rudin had just said cannot produce one.
C.5. The prosecutor put facts before the jury through his own questions.
Throughout the cross-examination of Stutchman, the prosecutor, ADA Imes, placed factual assertions before the jury in the form of questions: pointing at the screen to represent that invisible features were visible, supplying technical propositions no witness had established, and asserting a federal lighting requirement, attributed to the wrong agency, with no evidence behind it. A question is not evidence, but an assertion made in a question does its work the moment it is spoken, whether or not an objection follows.
(a) Pointing at features the witnesses said could not be seen.
As to the shadow, he asserted it twice by pointing: “But you see the same shadow here (indicating) and (indicating), right?” Stutchman had just said, “I don’t see the shadow with that definition,” and he answered, “Well, that isn’t very clear. I’m not sure if the jurors can see it or not” (RT 7231:2-10). As to the bed: “Do we not see the bed of the truck in that position in the Mitchley video?” — “We do not see any detail of the bed of the vehicle in the Mitchley video” (RT 7235:8-11). As to the hitch and box, he built a “uniqueness” ladder on features both video experts said are invisible in the video, asking the witness to confirm the “shape of the hitch” and the “unique” box (RT 7222-7224). The questions represented to the jury that these features could be seen and matched in the evidence, when the testimony of both video experts was that they cannot.
(b) Presenting a truck-derived overlay as though it were the video.
Before the State cross-examined Stutchman, Liscio had already conceded the shadow outline was traced from the FARO scan of my truck, not from the video (RT 5131:1-4; 5132:4-16). The prosecutor nonetheless cross-examined Stutchman as though the overlay reflected the video. He first got Stutchman to agree that Liscio’s 3D model was consistent with the FARO scan, two things both made from my truck: “Did you find anything inconsistent between Mr. Liscio’s 3D model … and the FARO scan to be inconsistent? — No” (RT 7232). Getting a witness to agree that the truck matches itself proves nothing about the video. He then tried to carry that agreement onto the video: “isn’t it true that Mr. Liscio’s outline was consistent with the shadow that was seen in the suspect video?” Stutchman refused: “No. You do not see this detail in the actual Mitchley video” (RT 7233); “you do not see the detail that we see here in the actual video behind the truck” (RT 7231). And he named the problem: the overlay “creates an impression that this is the truck, whether it is or not” (RT 7235).
The prosecutor then tried a formal syllogism, and defense counsel Maline objected mid-question (RT 7236-7237):
Q: The trailer hitch and the box on the back of the truck cast a unique shadow, do they not?
Stutchman: In the — In the model yes, they do.
Q: Well, you already agreed that the 3D model was consistent with the shadow that was cast in the FARO scan, correct?
Stutchman: Correct.
Q: Therefore, if “A” is true and “B” is true —
MR. MALINE: Objection, Your Honor. Counsel’s —
Q: — the next must be true, correct?
MR. MALINE: Counsel is misleading this witness on the issue of —
THE COURT: Objection is sustained. Calls for speculation. Conclusion.
The witness’s qualifier, “In the model yes, they do,” is the whole point. The unique shadow exists in Liscio’s FARO-derived model, not in the video. The syllogism would have carried the model’s features onto the video, proving my truck’s presence from features the video does not show. The prosecutor then ran the same inference again in different words: “those are unique characteristics that contribute to that shadow, correct?” The defense objected that it misstated the testimony, and this time the court overruled (RT 7237). The jury watched the court block the inference and then allow it, rephrased, moments later.
The prosecutor also invited the jury to substitute its own untrained eyes for the expert’s. He asked whether a lay juror who “were to view that and see it differently than you, they would be entitled to that opinion, would they not?” (RT 7234). On a photogrammetric question, the jury was told it was free to see a match the expert could not.
When Stutchman began to explain the four-frame disappearance the State would later argue as proof (“I need to tell you what’s going on when that happens”), the prosecutor cut in: “Well, you weren’t there that day, were you not?” My counsel asked whether the witness could explain his answer; the court said, “Overruled” (RT 7241:21-26). Stutchman gave the explanation anyway: “[t]he light was not visible for those frames. It doesn’t mean it wasn’t there,” and the return to full brightness “is the result of compression artifact masking” (RT 7242:9-13). Then ADA Imes said, “That’s interesting, because that’s not what you said on Thursday. When did you come up with that theory?” This was false. Stutchman had raised compression artifacts with ADA Imes himself, in front of the jury, on Wednesday, April 24, the first day of cross-examination. Asked whether a light would disappear from view “unless there is some obstruction,” he had answered, “Either that or compression artifacts could do that too” (RT 6972:2-5). Earlier that afternoon his first answer had been that the light “looked like it went behind the beam” (RT 6964:9-11), and the State was free to point to that. But the theory was not new. He did not testify on Thursday, April 25; that morning the court told the jury that “we are not going to be able to be in session today” (RT 7004:11-12). My counsel objected that the question was argumentative, and the court sustained the objection. When Stutchman began to say he had mentioned it before, ADA Imes told him, “You don’t need to answer, sir.” Mr. Maline said, “Counsel doesn’t need to tell the witness the law. The Court can do that,” and the court answered, “The objection was sustained. It was proper to advise the witness he didn’t need to answer” (RT 7242:14-28). So the jury heard the accusation that the explanation was new, and no one reminded them that he had given it six days earlier. The expert’s explanation was interrupted twice on cross, and the disappearance was then argued to the jury in closing as proof. Earlier in the same cross, ADA Imes suggested it would be “irresponsible to draw a conclusion” that the light was the side marker, a premise Stutchman rejected because the feature appears in both camera views (RT 7241).
See the trial transcript (RT 6964, 6972, 7004, 7242)
Put plainly: the shadow the prosecutor waved in front of the jury was traced from my own truck and laid over the video: the truck matched to itself, then presented as if it matched the footage. When the defense expert kept saying you cannot see those features in the actual video, the prosecutor tried a syllogism the court stopped, then rephrased it until the court let it through, and finally told the jury it was free to see the match the expert could not. And when the expert began to explain that the light’s disappearance was a compression artifact, not a reflection, he was interrupted, and the same disappearance was then argued to the jury as proof. The match was manufactured in the asking.
(c) A federal lighting requirement attributed to the wrong agency.
To challenge the missing-running-light exclusion, the prosecutor, ADA Imes, asserted, as the premise of a question, that running lights were required by the Federal Trade Commission (RT 6982:6-13):
Q: YOU ARE TELLING ME THAT IN 2010, THERE WAS A VEHICLE THAT EXISTED THAT HAD ZERO RUNNING LIGHTS ON THE FRONT?
Stutchman: THAT’S WHAT IT’S CONSISTENT WITH.
Q: DESPITE BEING REQUIRED BY THE FEDERAL TRADE COMMISSION?
MR. MALINE: OBJECTION. ASSUMES FACTS NOT IN EVIDENCE.
THE COURT: OBJECTION SUSTAINED.
See the trial transcript (RT 6982)
The FTC is not the federal agency that establishes motor-vehicle lighting safety standards. Those standards fall within the federal motor-vehicle safety framework administered by the National Highway Traffic Safety Administration. The prosecutor identified no applicable standard, offered no evidence that the claimed requirement applied to the vehicle in the Mitchley video, and the court sustained the objection to the premise. The assertion had still been spoken to the jury. The prosecutor had already pressed the same premise a moment earlier, “ARE YOU AWARE OF ANY MAKE OR MODEL OF ANY CAR IN 2010 THAT DID NOT HAVE SOME FORM OF RUNNING LIGHTS ON THE FRONT END OF A CAR?”, to which Stutchman answered that he is not “A MECHANICAL EXPERT OR A VEHICLE LIGHTING EXPERT” and could not answer (RT 6981:20-27). After the sustained objection, he restated it three more ways: whether Stutchman had investigated “IF THERE WAS ACTUALLY ANY VEHICLE EVER MADE THAT DOES NOT HAVE ANY TYPE OF RUNNING LIGHTS ON THE FRONT” (objection overruled; answer: “I DID NOT”); “ON YOUR COMMON SENSE EVERY DAY DRIVING AROUND THE UNITED STATES, HAVE YOU EVER SEEN A VEHICLE THAT DOESN’T HAVE SOME TYPE OF RUNNING LIGHT?” (objection sustained as argumentative); and “HAVE YOU EVER OBSERVED A VEHICLE, IN YOUR EXPERIENCE, THAT DOES NOT HAVE A RUNNING LIGHT OR RUNNING LIGHT TURN SIGNAL COMBINATION ON THE FRONT OF THE VEHICLE?” (answer: “I DON’T RECALL”) (RT 6982:14-6983:5).
(d) Physics and a color supplied by the prosecutor.
Through his own questions, the prosecutor supplied the bulb-wattage and luminosity physics behind the State’s “wash-out” theory: that running lights, being lower wattage than headlights, would be indistinguishable in a grainy video. No vehicle-lighting expert testified to any of it, and the questions stood unobjected (RT 6960:2-28). He then asserted, as the premise of his questions, that the running lights on my truck were “orangeish yellowish” (RT 6979:8-14).
The color premise came from the prosecutor, and it was offered to do a specific job: to explain why a real, lit running light would not show as its own band beside bright headlights. The State’s own evidence shows that it does. Two photographs taken by San Bernardino County Sheriff’s detectives during their investigation show the running-light lenses directly beneath the headlights (Photo 1, daylight) and, lit at night, showing as a bright band beneath each headlight, separate from the headlights’ glare (Photo 2). Both come from the Sheriff’s Department’s own investigative materials. The detectives’ own night video shows the same thing as the truck approaches (Section C.5(e)). Lit, the running lights on my truck do not wash out beside its headlights in the State’s own photographs. They show. Different cameras, exposures, angles and distances can change how lights appear, so these photographs alone do not prove what the Mitchley camera had to record. What makes the point substantial is Stutchman’s comparison and exclusion testimony, together with the State’s own expert saying the lights were “not detectible” and that one reason could be a different vehicle.
(e) The State’s own photographs and video.
Photo 1 (daylight) shows the running-light lenses directly beneath the headlights. Photo 2 (night, lights on) shows them lit: a distinct band of light under each headlight, not washed out by the headlights’ glare. Both were taken by the State’s own detectives. That band of light is exactly what the Mitchley video does not show.
The State’s detectives also filmed my truck at night with its headlights on. As it approaches the camera, the running light shows as a separate band of light beneath each headlight, visible through the headlights’ glare. That band never appears in the Mitchley video. The video comes from the Sheriff’s Department’s own investigative materials. Sergeant Ryan Smith was present when it was taken and confirmed the running lights were on (RT 3434:1-9).
Each of these put before the jury, as fact, something the record did not contain: an identification the witness disclaimed, a criticism the witness gave only on a condition, features the witnesses said could not be seen, a syllogism the court stopped, and a legal requirement no evidence supported. Separately and together, this was the manufacture of evidence by argument.
Put plainly: a question is not evidence. But a question that asserts a fact puts that fact in the jury’s mind whether or not the witness agrees, and whether or not the objection is sustained. The prosecutor pointed at a screen and told the jury it showed a shadow the witness said he could not see. He invoked the wrong federal agency for a lighting requirement no evidence supported. He put a color for my running lights into his questions to explain why they would vanish in the video; the State’s own photograph and video show they do not vanish. And when the court stopped him, he asked the same question three more ways.
C.6. The State’s own report swapped the labels on its comparison photographs.
A San Bernardino County Sheriff’s Department report (Case No. 071304411, Report Area H-2013-104, p. 3, Bates 007737), authored by Bachman and dated October 17, 2014, shows two photographs of the truck side by side, captioned: “The photograph on the right was taken on October 15, 2014, during the follow up contact. The photograph on the left was clipped from Mitchely’s surveillance footage from February 4, 2010… The photographs show the consistencies between the surveillance footage and Merritt’s [truck].”
The labels are reversed. The image the caption calls the video still is actually the October 2014 exemplar photograph, the one showing lit running lights beneath the headlights. The image the caption calls the 2014 exemplar is actually the Mitchley video still: dark, low-contrast, with no lit running lights at all. The report presents the exemplar’s running lights to the reader as though they appeared in the video, and relabels the video, the very image Stutchman testified shows no running lights where they must appear, as the known photograph of the truck.
See the trial transcript (RT 7475)
The caption claims “consistencies,” plural. The most significant of them, running lights, exists only because the report shows the exemplar while calling it the video. Correct the labels, and the video the report actually displays shows the same missing running lights Stutchman relied on.
Each photograph also carries a red circle around what the caption calls “what is believed to be the electrical plug on the front of the vehicle,” offered as another point of consistency. But the circled object cannot be made out in the actual video image. A circle drawn around an indistinguishable feature does not establish consistency. It is the same pattern as Liscio’s rear-of-vehicle features (Section B.2), recurring at the front.
The report was created years before trial and was part of the investigative record on which the State’s identification theory was built. Whether the mislabeling was a clerical transposition or something else, its effect was to create, in the State’s own file, a documentary appearance of consistency, running lights present in the video, that the video itself does not show.
Bachman admitted the transposition on the stand. Shown Bates 7737 on direct examination by my counsel, he first described the left photograph as “a still or screenshot of the truck when we processed it” and the right as “a snippet of the Mitchley video” (RT 7475:15-19). Then: “I just noticed that it says the photo on the left was from the Mitchley video, which is incorrect. That would be — the one on the right was from the Mitchley video” (RT 7475:25-27). He agreed he was “drawing circles around what you believed were similarities,” including “an electrical box on the bumper of Mr. Merritt’s truck” (RT 7475:28-7476:6), and that after October 15, 2014, he did nothing further “to either exclude or include Mr. Merritt’s vehicle as being the one in the Mitchley video” (RT 7476:21-25). Counsel identified the report page as next in order, “1146” (RT 7475:9-12).
Put plainly: the report told the reader, here is the video, here is the truck, and they match. But the photograph doing the matching was not the video. It was the truck. The State’s own file swapped the labels on the one comparison that could have answered Stutchman’s exclusion, and even the feature circled as consistent cannot be seen in the image that actually is the video.
The mislabeling did not stand alone. The proposition it created on the page, that the running lights of my truck are visible in the Mitchley video, is the same proposition the prosecutor asserted through the premises of his own questions at trial and argued to the jury in closing. The report is documentary evidence of how an incorrect comparison entered the investigative record. Whether the transposition was inadvertent or deliberate, the resulting presentation attributed characteristics of the known truck photograph to the surveillance image. That matters because the presence or absence of those characteristics became a contested issue at trial. The other ways the running lights were argued into the video are in Section C.7.
C.7. The running lights were argued into the video four ways.
My truck has always-on running lights. The Mitchley video shows none. That was Stutchman’s ground of exclusion: it is “dark where the running light would be,” and he used that as “a factor to exclude Mr. Merritt’s truck” (RT 7271:12-25). If the running lights are not in that video, the State’s only physical placement of me at the scene fails.
The State offered assertions and explanations for the missing running lights, but it never demonstrated that the lights on my truck could disappear in the Mitchley recording under the conditions shown. Sergeant Smith claimed he could see them. Liscio suggested they might be present but undetectable, while also acknowledging that the vehicle could be a different truck. Neither resolved Stutchman’s exclusion analysis through a controlled comparison using the Mitchley camera. The State’s theory was that the lights were present but lost to glare or other limitations of the recording. Liscio acknowledged that possibility, but he did not demonstrate that it occurred, did not reproduce the conditions of the Mitchley recording, and expressly identified a different vehicle as another explanation. The prosecution argued the possibility of washout as though it resolved Stutchman’s exclusion analysis, when its own expert had not resolved the competing explanations. It was argued four ways.
In closing, by argument. The prosecutor, ADA Imes, pointed the jury to a 2014 photograph of my truck: “I will note for you, by the way, in Exhibit 796, the glow and the bleed-out in that photograph, even though it’s taken four years later with a better camera and a closer angle, those lights are all washed out, including the parking lights” (RT 8202:13-17). At trial, Mr. McGee showed Sergeant Smith Exhibit 796, “a photograph, a close-up of the video that was done by the Sheriff’s Department,” and Smith agreed. Asked whether it and the Mitchley close-up “both show the running lights,” he answered, “I’m — yes” (RT 3505:11-17, 22-26). In closing, the same photograph was offered as proof that the lights wash out. Whatever photograph he meant, a photograph taken four years later with a better camera from a closer angle is not evidence of what the 2010 surveillance camera could capture. The sentence itself says why. And the State’s own detectives photographed my truck at night with the lights on: the running lights show plainly, as a separate band beneath each headlight, in their photograph and in their video (Section C.5(e)).
See the trial transcript (RT 3505)
On cross-examination, by unsworn assertion. The wattage physics and the “orangeish yellowish” color premise, neither supplied by any witness (Section C.5(d)).
In the file, by mislabeling. The swapped captions in Bates 007737 (Section C.6). The one feature the mislabeling created was the appearance of running lights in the footage.
In the record, by leaving the alternative untested. The State’s own photogrammetry expert would not say the running lights were merely washed out. His answer was not the answer the State needed:
“What I’m saying is that it’s quite likely that it’s not detectible is what I’m saying. So, it may be on, but we can’t see it; or it may be off, and that’s why we don’t see it. Or it could be a different vehicle, right? So there’s different scenarios there.” (RT 5128:14-19)
See the trial transcript (RT 5128)
Three scenarios, from the State’s own expert. The third is that the vehicle in the video is not my truck. He put a different vehicle on the record as a live explanation for the missing lights, and neither he nor the State ever ruled it out.
The second scenario does not survive the record. My running lights cannot be switched off while the headlights are on, and the headlights in the Mitchley video are on. I know this about my own truck, and Sergeant Ryan Smith of the San Bernardino County Sheriff’s Department so testified. He was present when the Sheriff’s Department filmed my truck at night, and confirmed the running lights were on (RT 3434:1-9). Then:
Q: COULD YOU TURN THOSE OFF WHEN YOU HAD THE TRUCK RUNNING WITH THE HEADLIGHTS ON?
A: NO.
Q: LET ME ASK YOU: DID YOU GUYS TRY TO TURN THEM OFF WHILE THE HEADLIGHTS WERE STILL ON.
A: YOU COULDN’T, NO.
Q: SO THE PARKING LIGHTS OR THE RUNNING LIGHTS ALWAYS HAD TO BE ON WHEN THE HEADLIGHTS WERE ON?
A: CORRECT. IT’S LIKE ANY CAR, THE RUNNING LIGHTS ALWAYS TURN ON IF YOU TURN THE HEADLIGHTS ON.
(RT 3434:10-19.)
With “may be off” eliminated, Liscio’s scenarios reduce to two: the running lights are present but undetectable, or the vehicle is not my truck. The State needed the first. Its own expert would not choose between them.
And the State never ran the test that would have settled it. Asked whether he had asked for the truck to be driven in front of the camera at night, Liscio answered: “I did not ask them to go drive the truck, no” (RT 5127:25-5128:5).
Put plainly: the running lights on my truck are always on. They cannot be switched off while the headlights are burning, and in that video the headlights are burning. They are still not there. The State could not answer that with evidence, so it answered it with a story: the lights are there, you just cannot see them. To make the story work, the prosecutor needed the lights to disappear beside the headlights; the State’s own night photograph and video show them plainly. He needed a photograph of the video showing lights; the one in the State’s own file was a photograph of the truck, with the labels swapped. And the State’s own expert, given the chance to say the lights were merely washed out, said instead that they were not detectible, and that one reason might be that the vehicle was not my truck at all. Nobody ever drove my truck past the Mitchley camera at night to find out.
Decide for yourself, did they know the truth?
The prosecution told the jury two opposite things about my truck’s running lights.
They can be seen.
Q: And can you see those running lights in the Mitchley video?
Sergeant Smith: Yes.
(RT 3470:8-9)
See the trial transcript (RT 3470)
Sergeant Smith, shown a close-up of the Mitchley video beside the Sheriff’s photograph of my truck (RT 3505:4-14):
Q: … you are saying these two pictures both show the running lights; correct?
Smith: I’m — yes.
(RT 3505:15-17)
MR. IMES: WHAT IS THAT GRAY BAR RIGHT THERE IN BETWEEN?
Stutchman: IT’S EMPTY SPACE.
MR. IMES: YOU SURE IT’S NOT A DIMMER LIGHT?
(RT 6980:9-11)
They can’t be seen.
Liscio, the State’s expert: it’s quite likely that it’s not detectible … it may be on, but we can’t see it.
(RT 5128:14-16)
MR. IMES: DO YOU HAVE ANY INDEPENDENT FORENSIC EVIDENCE THAT THAT WASHOUT IS NOT CONCEALING POTENTIALLY DIMMER RUNNING LIGHTS ON THAT VEHICLE?
(RT 6977:21-23)
MR. IMES: YOU ARE TELLING ME THAT IN 2010, THERE WAS A VEHICLE THAT EXISTED THAT HAD ZERO RUNNING LIGHTS ON THE FRONT?
Stutchman: THAT’S WHAT IT’S CONSISTENT WITH.
MR. IMES: DESPITE BEING REQUIRED BY THE FEDERAL TRADE COMMISSION?
Objection sustained.
(RT 6982:6-13)
Q: Why did you not highlight that that light is missing from this side?
MR. IMES: Objection. Assumes facts not in evidence that the light is missing.
THE COURT: Appears to be missing. He can answer.
Sergeant Bachman: … I was noting consistencies in there.
(RT 8081:20-27)
MR. IMES, in closing: those lights are all washed out, including the parking lights.
(RT 8202:16-17)
Both are presented as my truck. Different cameras can record lights differently, but the State’s own photographs and video show how my truck’s running lights appear at night.
C.8. An identification was argued from a light the prosecutor told the jury no one could identify.
Liscio said under oath that he did not know the source of the illuminated spot (RT 5140:11-13; 5144:28-5145:1). Rudin called it a mystery light and refused to identify it (Section C.2). No witness told the jury what that light was.
See the trial transcript (RT 5140, 5144, 5145)
The prosecutor told them, and in the same argument told them nobody knows. He conceded it at the start: “What is it? No one really knows, given the quality and character of this — of the video” (RT 8202:26-27). He conceded it again in the middle: “Remember, when you talk about the side latch, illumination, whatever that is” (RT 8205:21-22). And he conceded the condition of the video itself: “everything kind of gets washed out on the front end; it’s hard to see; you can’t even see the direct headlights” (RT 8206:13-17). Describing Liscio’s own zoomed-in excerpt, he said the same: “You can see even when he zooms in on the photo — video, how pixilated and washed out these headlights get to where you can’t even see the definition of them” (RT 8204:8-10). Between and after those concessions, he supplied:
- An identification: “It’s not the best video, granted. But it was more consistent with a side latch and some type of reflection off the side latch” (RT 8202:28-8203:2). Liscio had raised a side-latch reflection, but only as speculation: he did not know the source of the light (RT 5140:11-13) and said he was “just speculating” (RT 5144:28-5145:1). Rudin never adopted it. The prosecutor was free to argue an inference from Liscio’s testimony; what he did instead was turn an expressly unverified possibility into a stated explanation.
- A mechanism: the water valve cover in the street “has a reflection,” and “[t]he yellow fire hydrant had a reflection in this video. So you don’t have to be chrome” (RT 8203:4-9). Just before that, he accused the defense of the very thing he was doing: “The defense will probably tell you, oh, it’s not chrome, it wouldn’t reflect light, it’s too intense. That’s a lot of speculation” (RT 8203:2-4).
- A physical condition: “What you probably have to be is at a position to be able to catch the light, such as slightly open or ajar” (RT 8203:10-11). No evidence shows the latch on my truck was open or ajar on February 4, 2010, and his own “probably” and “such as” concede it.
- An attribution to unnamed witnesses: “And you heard testimony from Mr. Liscio, and I believe, maybe, even Sergeant Smith that, in fact, that lever, that particular one was very difficult to manipulate” (RT 8203:11-14). A prosecutor telling a jury what the evidence was, while conceding on the record that he does not know who gave it, is not summarizing evidence. He is supplying it.
- Brake-light optics: “Remember, when you saw the truck, as well as the evidence you heard from the stand, the housing around those brake lights had an open translucent area to them. Well, if it’s open or translucent, it would allow more light through, making it brighter, causing the effect that you would see in the shadow on the street” (RT 8205:26-8206:3). The housing he attributed to the evidence. The physics that made it matter came from nowhere: no witness gave that opinion. It is a brightness conclusion, delivered by an advocate.
- Glare, attributed to Liscio: He told the jury Liscio had shown “there would appear to be this strange glare, which was possibly from the top of the bumpers caused by the projection of the lights” (RT 8204:3-6). “Possibly,” from a witness who had already said he was speculating about the light’s source, argued forward into the inference as though it had been established.
See the trial transcript (RT 8202)
See the trial transcript (RT 8203)
Set against the concessions that bracket them, these assertions describe themselves. The prosecutor told the jury that no one knows what the light is, and then told them it was a reflection off a latch that was probably ajar, catching light in the manner of a water valve cover, in a video whose front end he conceded was washed out. Every load-bearing piece of that account (the latch, the reflection, the ajar position, the reflective mechanism, the physics of the translucent housing) entered the case in the prosecutor’s own voice. The State’s own expert had told the jury that reflections called for a physicist and were “not a simple answer” (RT 5154:24-27). No physicist testified. What may not be admitted from the witness stand cannot be supplied from the lectern.
Put plainly: the prosecutor told the jury, twice, that nobody knows what that light is. In between, he told them what it is: a reflection off a latch that was probably hanging open. No witness said that. The State’s replacement expert said he was speculating. The State’s own expert of four years called it a mystery light. The only person in that courtroom who claimed to know what the light was, was not under oath.
C.9. The case agent’s comparison searched only for inclusion.
The Sheriff’s Department comparison report behind the State’s “consistency” narrative was the work of the case agent, Sergeant Bachman. He admitted on the stand that it came from a method built to confirm, not to test. He “compared pictures based off the belief, initially, that it was the Trooper” (RT 7480:4-6). Asked whether for my truck he was “looking to include it,” he answered, “Yeah, to find consistencies in there”; asked whether with the Trooper he was “looking for inconsistencies,” he answered, “Right” (RT 7480:15-20). Two vehicles, two opposite standards.
Confronted with a parking light present on my actual truck but missing from the video, and asked why he had not noted it, Bachman answered: “I was noting consistencies in there” (RT 8081). The trial court, over the prosecutor’s objection, stated on the record that the light “[a]ppears to be missing” (RT 8081).
See the trial transcript (RT 8080, 8081)
Applying the same exclusionary reasoning Bachman used against the Trooper to the marker-light evidence concerning my truck produces the opposite result from the one he sought: it supports excluding my truck. He agreed the marker light was one of “these three distinct features that you used to exclude the Isuzu Trooper” (RT 8080:12-16). My counsel put to him his preliminary-hearing testimony: “because that marker light is there and seen on the video, that’s how you conclude it’s not the Isuzu Trooper” (RT 8080:17-20). My marker light sits at about sixty inches and is blocked by the overhang; a marker light visible at the low position shown is inconsistent with my truck exactly as the wrong-side exhaust was inconsistent with the Trooper. At the preliminary hearing he had testified that “[t]here’s an inside marker light on the passenger side, rear portion on the vehicle leaving the house,” and that it was “not present on the McStay’s Trooper”; the prosecutor objected, hearsay and improper impeachment, and the court overruled (RT 8080:24-8081:4).
Bachman told the jury twice that the light could be seen in the video: “It looks, to me, like you can see the light in the video” (RT 7471:28); “it was just on the fact that you can see the light in the video” (RT 7472:3-4). My counsel also put to him his preliminary-hearing testimony that the marker light “is there and seen on the video” (RT 8080:17-20). That is the opposite of the prosecutor’s closing statement that no one could identify it. And he confirmed he never measured the awning, porch, or roof of the Mitchley residence (RT 7474), the geometry that decides whether the marker light could appear at all.
Put plainly: the man who built the State’s comparison report admitted he set out to include my truck, not to test whether it belonged in that video. He wrote down only the similarities and skipped the light that was missing. And the one feature he swore he could see, the marker light, is the feature that cannot be there if the truck is mine. His own logic excludes the truck he set out to include.
C.10. The closing statements, catalogued.
In closing and rebuttal, ADA Imes and ADA Rodriguez made at least sixteen statements that either directly contradicted testimony, omitted qualifications necessary to understand it, or presented disputed and speculative propositions as established facts. The distinctions matter. Some statements were demonstrably inconsistent with the witnesses’ words. Others converted a qualified opinion into a categorical conclusion. All moved the jury toward identifying my truck more confidently than the expert evidence permitted. Each is listed with the testimony it should be read against.
ADA Imes told the jury:
- That the shadow showed “unique characteristics of the defendant’s truck,” “that box, that trailer hitch, the shape of the bumper” (RT 8204-8205), when Liscio had conceded those features are not visible and the outline was a FARO trace of my own truck (RT 5131-5132).
- That “[t]he shadow left by that vehicle has distinct characteristics” (RT 8201:19-20), when Liscio’s own report found it “was not possible to find any unique or identifying features for the vehicle in the video,” and when he conceded on the stand the outline was a FARO trace of my own truck, not the video (RT 5131:1-4; 5132:4-16).
- That the exhaust pipe “matches even the pixelation zoomed in, frame by frame, track by track” (RT 8206:10-12), when Liscio expressly testified that the comparison was only “within the ballpark, but it’s not exact,” and that it was “difficult to say exactly where it ends” because “it’s pixelated” (RT 5181:9-11; 5182:13-15). The prosecutor presented as a match of particular features what his own expert expressly acknowledged was not exact.
- That Rudin’s data points “all still matched … You saw the 10 point match. All those data points still lined up” (RT 8207:28-8208:9), when the reason Rudin reversed was that the points could be made to line up only by placing the truck “below ground level, in order to make that match,” and the overall length of the truck in the video did not match the FARO scan of my truck, as the trial court’s own ruling recites: “those measurements did not match” (RT 7984:9-23). Points that line up only when the truck is underground are not a match.
- That Rudin’s margin of error “moved … from 5 percent or 6 percent up to 10 percent, and then … back to 9 percent” (RT 8208:22-24), when at RT 7847 Rudin gave his threshold as five to six percent; I have found no nine-percent figure in his testimony.
- That Rudin was “an expert within [sic] an agenda from the minute he hit the stand” who “reaches out to the defense” (RT 8206:21-26), when, as defense counsel told the court, Rudin’s own email said “I know I’m still a prosecution witness” (RT 7833:22-25), when the record shows he took his changed conclusion to the prosecution, and when ADA Imes asked him on cross, “Isn’t it true you’re upset he didn’t use your software?”, the defense objection was sustained, and Rudin answered, “That’s ridiculous” (RT 8013:9-12).
- That Rudin said “if it worked, I could retire. I want to do this, so I can make money off it” (RT 8207:2-5), reversing what he actually said (see below).
- That “[y]ou have a truck that cannot be excluded … from the Mitchley video” (RT 8272:1-3), stated categorically and without qualification, when Rudin had rendered a qualified rejection of my truck and Stutchman had identified two independent exclusion factors. Liscio agreed that he could not exclude the truck, but that was his opinion, not the conclusion of the expert evidence as a whole. The prosecutor converted one expert’s non-exclusion opinion into an unqualified assertion that the truck could not be excluded, notwithstanding the contrary testimony (Section D.6).
ADA Rodriguez told the jury:
- That “Dr. Lenny … never attempted to match a data point to the latch” (RT 8441:11-12), when Rudin testified in detail that he did (RT 7960:28-7961:10), and when ADA Imes’s own closing said “[t]hat latch is consistent even in his experiment” (RT 8207:27-28).
- That Rudin’s process “shrunk the Trooper” and he “couldn’t exclude that process” (RT 8441:11-15), when Rudin testified “there’s no shrinking or expanding model” (RT 7865) and that his model “cannot shapeshift” because “[i]t’s a rigid object” (RT 7965).
- That “[h]is tests are not validated. This is brand new science that has never been used before” (RT 8441:17-19), when Rudin testified his method was “exactly the same method people use for human heights, and that was validated” (RT 8030-8031).
- That “Dr. Lenny (sic), from day one, would not exclude the truck, and still from that witness stand would not exclude the truck,” and “never concretely excludes the truck” (RT 8440:17-23), when Rudin said “I render a rejection” (RT 8048:26-27).
- That “[h]e couldn’t do the trajectory” (RT 8441:1), when Rudin testified that the features “fall exactly same trajectory” (RT 7951:3-9), and when ADA Imes’s own closing told the jury Rudin “figured out this trajectory” (RT 8207:18-23).
- That “Stutchman didn’t do the work. He conceded the unique characteristics that included the truck” (RT 8440:16-17), when Stutchman measured the light on the side of that vehicle at about 39 inches against my own truck’s headlight and gave two independent grounds for excluding my truck (Section B.3). What he did concede, on cross-examination by ADA Imes, was that features of my truck itself, such as the hitch and the box, could be unique to it (RT 7223:17-22; 7224:12-16; 7226:28-7227:8). He never agreed any of them can be seen in the video: “No. You do not see this detail in the actual Mitchley video” (RT 7233:3-9).
- That “the headlights are washed out no matter what frame you look at” (RT 8441:19), when Stutchman testified that the washout appeared “[i]n some frames. Only some frames” (RT 7277:4-7).
- That “you know from the angle on the camera, it doesn’t go all the way across the street. The whole reason that that truck is captured on the Mitchley video is because that truck pulled so far over to the curb side and brakes. That’s why that truck shows on Jennifer Mitchley’s video” (RT 8449:23-28). Part of that had support: Liscio had testified that “the vehicle is close to the curb, and I don’t know why” (RT 5059:4-6). What was not true is that the camera cannot see across the street. It does. On February 18, 2010, San Diego detectives watched Mitchley’s footage and wrote: “In looking at the footage from 02-03-10 at 1637 hours, we saw the bottom and tires of Mcstay’s green truck (currently parked in their driveway) pull into the driveway,” the McStays’ driveway, across the street. Mitchley had told them her cameras covered “her side of the street only,” but the footage showed the far side (San Diego Sheriff’s follow-up report, Det. Laibach, case 10018139H, February 18, 2010). The clip below is from the same porch camera on February 3, 2010. At about four seconds, a car crosses on the far side of the street, going the same direction as the vehicle on the evening of February 4. It is not next to the curb, and the camera still records it, bottom and tires. At about sixteen seconds, the McStays’ dark truck crosses on the far side, coming home. Neither one pulls over to Mitchley’s curb.
Watch the full February 3, 2010 recording, uncut
See the San Diego Sheriff’s follow-up report (Det. Laibach, February 18, 2010)
Two more items belong with these but are not false statements of fact. After a defense objection to item 12 (“Objection. Misstates the testimony. Ask to admonish.”) was overruled (RT 8440:24-26), ADA Rodriguez added: “you wonder why the prosecution didn’t call Dr. Lenny. Dr. Lenny sat up there talking in circles” (RT 8440:27-8441:1), the overruling of the objection visibly emboldening the escalation. And outside the closing, ADA Daugherty objected “cumulative” three times to Stutchman’s exclusion testimony (RT 7271-7272), each objection acknowledging that the exclusion was already in evidence; each was overruled.
The “retire” statement. Rudin’s actual words, explaining to the court what he meant: “If I’m wrong, and we do this experiment, and we can actually match these three points — three points being the front lights, and the other light — I said I’m going to retire” (RT 7911:15-18). He would retire if the test proved his rejection wrong. He added that he said this to Imes, and “AT THAT MOMENT I THOUGHT IT WAS THE WRONG THING TO SAY. I BASICALLY DISCOURAGED HIM FROM DOING THIS” (RT 7911:18-20). “I’m going to retire,” not “I can retire.” It was an expression of confidence in his conclusion, told to the jury as a financial motive to fabricate.
“Reaches out to the defense.” Rudin did not defect. When his re-analysis changed his conclusion to a rejection, he took it to the prosecution, the party that had retained him: “I MADE A CALL TO DEPUTY DISTRICT ATTORNEY, MR. IMES … AND I TOLD HIM THAT WE HAVE A PROBLEM” (RT 7910:2-4), and was set aside. In the hearing on those communications he testified: “I WAS TOLD TO STAND DOWN, BASICALLY,” and that Imes wrote “WE WILL ASK YOU TO STOP THE WORK, YES. AND ALSO THAT THERE WILL BE NO EXPERIMENT” (RT 7912:1-14). When he said before the jury that “ONE OF REASONINGS I BELIEVE I WAS TOLD TO STAND DOWN” was that he was advocating for the re-projection test, the prosecutor moved to strike it as nonresponsive, and the court said, “SUSTAINED. THE LAST QUESTION IS STRICKEN” (RT 8047:24-28). His own email, as defense counsel quoted it to the court, shows how he understood his role even after the reversal: “I know I’m still a prosecution witness” (RT 7833:22-25). The court itself described him as “contacted by the prosecution,” whom “the prosecution intended to call,” and whom “[t]hey did call” at the 402 hearing, until “he changed his mind” (RT 7834:1-5), and at the motion for new trial said he “was initially retained by the prosecution” (RT 8958:7-8). The State did not lose Rudin to the defense. It set him aside when he stopped saying what it needed, and then told the jury the reverse.
Put plainly: a jury that had heard two exclusions, a rejection, and a disclaimer was told it had heard consistency, a match, a validated identification, and an expert with a motive to lie. These sixteen statements did not all employ the same method. Some contradicted testimony directly. Some removed qualifications. Others converted uncertain or model-derived features into supposed observations from the video. Their common effect was to strengthen the State’s identification while diminishing the evidence against it.
↑ Back to the menuD. The trial court’s rulings
D.1. Defense objections to speculative testimony were overruled.
When defense counsel objected that Liscio’s testimony was speculative and moved to strike, after Liscio speculated that the latch could be “stuck a little bit open,” the court overruled the objection (RT 5080:11-13). When counsel objected on relevance grounds that the box was not visible in the video, the objection was overruled, letting the jury weigh a feature the witness conceded could not be seen: “Objection. Relevance. Because the box isn’t seen in the video.” “Overruled” (RT 5167:4-6).
D.2. Objections that cut off the defense cross-examination were sustained.
When counsel asked Liscio, “What is a reasonable percentage range for things that you don’t see?”, the prosecutor, ADA Imes, objected “Asked and answered”; counsel told the court, “He hasn’t answered it yet”; and the court sustained the objection (RT 5087:9-13). The court then asked its own general question about a margin of error, and Liscio answered that it “was on the order of a couple of inches, roughly” (RT 5087:16-27). The question counsel asked, about the features that cannot be seen, was not answered. When counsel sought to establish the taillight point, “Just to be clear, if that’s an actual taillight, it’s not my client’s vehicle, right?”, the court sustained a speculation objection (RT 5150:12-16). When counsel rephrased it, the court let it through over the prosecutor’s objection, and Liscio conceded “if that’s a different vehicle, then it’s not the same vehicle,” “it’s possible that it’s another vehicle,” and “I’m not saying that this is your client’s vehicle” (RT 5150:18-5151:13). What never came in was the direct answer: that if the light is a taillight, it is not my truck.
When counsel sought to summarize what was visible in the video, “But you can’t see the shape of the vehicle, you can’t see the form of the vehicle. All you can see are headlights, taillight, shadow, and a illuminescent (sic) spot, correct?”, the court sustained the prosecutor’s objection that it misstated the testimony, added “And argumentative,” and when the witness began to answer, told him, “You don’t need to answer” (RT 5155:12-23).
When counsel asked whether “[t]he hydrant then should be illuminated by the light source that illuminates that spot,” the prosecutor objected that the question “[a]ssumes facts not in evidence,” and the court sustained it, “Also vague” (RT 5156:15-19). In closing, the same prosecutor used the hydrant’s reflection to argue that the latch did not “have to be chrome” (RT 8203:4-9).
Liscio’s speculative explanation remained before the jury. Although cross-examination exposed important limitations in his opinion, the court sustained objections to additional questions directed at those limitations, including the direct hypothetical connecting a taillight identification to the exclusion of my truck. The rephrased examination established that another vehicle was possible, but the jury did not receive the direct answer counsel had sought.
D.3. The court’s comment before the jury.
During the defense cross-examination on whether the illuminated spot was a taillight, counsel asked Liscio: “So, you’re just going to find whatever evidence matches the theory that you want to reach, and you’re going to say that’s a latch, it’s not a light, right?” The prosecutor objected on one ground: “Objection. Argumentative.” The court sustained it and added a ground of its own: “Objection’s sustained. It’s argumentative and assumes facts not in evidence” (RT 5148:22-28). Phrased in the court’s own words, on a ground the prosecutor had not raised, it told the jury the bench viewed the defense’s line of questioning as improper.
D.4. Speaking objections.
The court permitted the prosecutor to make objections that argued the State’s position, asserting for example facts “not in evidence; such as a bulb being burnt out” (RT 5129:2-4) and characterizing the witness’s earlier answers (RT 5126:1-2). When the court responded, it addressed both sides at once: “Both of your comments are argumentative, and should be reserved for your closing arguments” (RT 5129:7-9).
Put plainly: the court did not sustain every prosecution objection or overrule every defense objection. But several consequential rulings permitted the State’s speculative explanation to remain while restricting questions intended to expose its implications. The defense elicited significant admissions from Liscio; the problem is that the court limited additional examination at precisely the points where counsel sought to turn those admissions into an explicit exclusionary conclusion. And when the defense pressed Liscio on whether he was fitting the evidence to his theory by calling the light a latch, the court told the jury, in its own voice and on a ground the prosecutor had not raised, that the question assumed facts not in evidence. The rephrased question drew only the concession that another vehicle was possible. The direct answer never came in.
D.5. At the 402 hearing, the court offered “consistent with,” and Rudin declined it.
At the section 402 hearing, after the prosecutor, ADA Imes, passed the witness, the court examined Rudin itself and offered the prosecution-favorable characterization: “some people would say it would be consistent with, is that a term that you would use?” Rudin declined it: “to say consistent, I … would need a few more things”; “we would not call it consistent or inconsistent.” The court settled for “you cannot eliminate it” (RT 3684-3685). I do not suggest the court originated the State’s theory. The point is narrower: even when the court itself offered the phrase “consistent with,” Rudin refused to adopt it without more information. It is the term the State later built its identification on, through a different expert. The Sheriff’s October 2014 report had already spoken of “consistencies” (Section C.6).
D.6. The court described Rudin’s evidence as excluding the truck, then called the record inconclusive.
During trial, the court three times described Rudin’s evidence as excluding my truck, twice in describing Rudin’s conclusions and once in its ruling, describing what Imes’s e-mail had told the defense: in the bench colloquy, that the defense could present “DR. RODIN’S [sic] CONCLUSIONS THAT I THINK THE TRUCK IS EXCLUDED, THAT MR. MERRITT’S TRUCK IS EXCLUDED AND WHY IT’S EXCLUDED” (RT 7930:18-20); describing what Rudin could tell the jury: “I changed my opinion, and now my opinion is I can exclude the vehicle and here’s why I can exclude it. He can testify on all of that in front of the jury” (RT 7833:6-8); and, in its ruling on the suppression motion, that the length mismatch “would certainly be a factor which would suggest exclusion of Mr. Merritt’s truck, and that those measurements did not match” (RT 7984:14-17), and that “Mr. Merritt’s truck would likely be excluded as the truck in the video due to the length of the truck not matching” (RT 7985:9-12). The court also admitted Stutchman’s two exclusion factors over three prosecution objections (RT 7271-7272), and stated that the light Bachman had not noted “[a]ppears to be missing” (RT 8081).
See the trial transcript (RT 7833, 7930, 7984)
At the motion for new trial, the same court first called the Mitchley video “of relatively limited significance,” because it “is not a complete surveillance of all the activity that might have been in that area,” shows “only a few segments,” and “does not show the truck arriving” (RT 8957:18-23). It then turned to the experts. It said “[t]he best analysis was ultimately provided by Dr. Rudin at the end of trial” (RT 8958:6-7). It recounted that Rudin “changed his opinion and said that his initial analysis was wrong because he actually had the truck below ground level for those things to match up. So he said, Now, they don’t match up, and he would tend to exclude the defendant’s truck as being the truck” (RT 8958:11-15). Then: “He concluded his testimony with saying that what was needed was a live re-projection test or experiment. That would be definitive. He said he urged both sides to do such a test. Neither side did it. He said without that test, all you have is competing models, and there are problems with all of them. So there’s no definitive conclusion that can be reached with regard to whether the truck was or was not Mr. Merritt’s” (RT 8958:15-22).
See the trial transcript (RT 8958)
The truck identification was the only physical evidence the State offered to place me at the McStay residence. It was not corroborated by a witness who could identify me, or by any other physical evidence tying me to the scene. When the court came to rule on the motion for new trial, it did not confront that record. It misdescribed it.
That description is not what the record shows. The court called Rudin’s the best analysis, and then treated his conclusion as waiting on a test. Rudin did not make his conclusion depend on that test. He reached one without it: “BASED ON THE DATA I HAVE… I RENDER A REJECTION,” and said the test could later overrule it: “AN EXPERIMENT CAN OVERRULE MY REJECTION IF IT TURNS OUT TO BE THAT WAY… RIGHT NOW I DON’T SEE A REASON” (RT 8048:26-8049:3). The court’s own words confirm that neither side ran the test, and it was the State that bore the burden of proof. The ruling also never mentions Stutchman, who excluded my truck on two independent grounds (RT 7271:12-25; 6922:1-3). And in the same passage, the court said Rudin “would tend to exclude the defendant’s truck as being the truck” and, sentences later, that there was “no definitive conclusion that can be reached” (RT 8958:13-22). Those two statements can coexist: an expert can tend to exclude a vehicle while the evidence still falls short of a definitive answer. The problem is what the summary left out. It reduced Rudin’s qualified rejection to inconclusiveness, and it did not mention Stutchman’s independent exclusion at all. That understated the combined force of the defense evidence.
This was not a harmless imprecision. The truck identification was the case. If the court’s description of the expert testimony had been accurate (two independent exclusion factors supported by Stutchman’s sworn testimony, together with the State’s original expert’s qualified rejection, all reached without requiring the further experiment the court treated as necessary for a definitive conclusion), the motion for new trial would have confronted a record in which no expert identified my truck, and the only expert support for the State’s inference was a “consistent with” opinion, against the identification the State argued to the jury as “in fact, the defendant’s truck” (RT 8272:1-8). Instead, the court’s summary repeated the imprecision the trial itself had produced: a rejection recast as inconclusive, and an exclusion left out altogether.
The court also reasoned: “if it is the defendant and his truck leaving the house at 7:45, and if the evidence is that the McStays were still in the residence until 8:28, that evidence would be exculpatory. But the defense claimed that it was not his truck. And if it was not his truck, and a truck not his truck is leaving the area before the McStays were killed, where they were still in the residence with activity going on in the residence after that truck leaves, the fact that it’s not his truck doesn’t have any significance” (RT 8957:23-8958:4).
Both halves of that alternative cannot be assessed by a measure the court applied to only one of them. If the truck is mine, the court is right that the timeline is exculpatory: I am gone before the window closes. But if the truck is not mine, the consequence is not “no significance.” It is that the only physical evidence offered to place my vehicle at the scene is wrong. The State did not argue to the jury that an unidentified truck left the residence. It argued that Liscio’s analysis showed the truck was, “in fact, the defendant’s truck” (RT 8272:1-8), the very identification Liscio himself refused to make (Section C.1). If that identification is wrong, the State’s only physical placement of me at the scene during its own charged window does not exist. That is exculpatory by a different route than the first branch, removing the State’s proof rather than placing me elsewhere, but it is exculpatory all the same, and the court’s own reasoning gives no basis for crediting one branch and discarding the other. The ruling credits the truck’s identity only when identifying it as mine would help me, and treats the opposite finding as immaterial exactly when it would hurt the State. That is not a neutral evaluation of the evidence. It is the same one-sided treatment of the identification that runs through the trial itself, reproduced at the motion for new trial.
Put plainly: the court that reviewed my case after trial described Rudin’s below-ground problem and his tendency to exclude my truck, but it recast his rejection as waiting on a test, and it left out Stutchman’s independent exclusion testimony altogether. Rudin did not say he needed a test to reach a conclusion; he said a test could someday undo the conclusion he had already reached. Stutchman was not mentioned at all, though he excluded my truck twice, on his own two grounds, independent of Rudin entirely. The motion for new trial was my chance to have this record examined with care. It was examined, and it was still gotten wrong, twice over.
Put another way: the same judge three times described Rudin’s evidence as excluding my truck, admitted the defense expert’s two exclusions over the State’s objections, and said a parking light defense counsel pointed to “[a]ppears to be missing” (RT 8081:15-24). Then, at the hearing meant to catch trial error, he called the record “no definitive conclusion” and never mentioned the defense expert who excluded my truck twice.
↑ Back to the menuE. The jury did not hear why Rudin changed, or when
My counsel did get the headline of Rudin’s reversal before the jury in closing: that Rudin was “their expert that they had for four years,” that his analysis had turned, “it can’t be that marker light … it’s not his truck,” that Liscio was retained “four days later” once “[o]ur whole theory that we’ve sold this whole time is wrong” (RT 8303:11-24), and that the State “didn’t call Lenny Rudin, once he changed his testimony” (RT 8349:2-3). That was argument, not evidence. The one time Rudin said before the jury that he had been “TOLD TO STAND DOWN,” the prosecutor, ADA Imes, moved to strike it and the court said, “SUSTAINED. THE LAST QUESTION IS STRICKEN” (RT 8047:24-28). Outside the jury’s presence, the court held that the defense could not go into “COMMUNICATIONS BETWEEN THE PROSECUTION AND MR. RUDIN REGARDING HIM BEING FIRED,” sustaining objections “UNDER EVIDENCE CODE 352” (RT 8046:3-16).
See the trial transcript (RT 8046)
What the court excluded under Evidence Code section 352 was the communications chronology: when Rudin told the State of his reversal, the instruction to stand down, and the sequence of his being set aside. Rudin’s technical conclusions did reach the jury, through his own testimony. What was lost was time. In February, the prosecution’s e-mail told counsel that Rudin could not validate the truck’s length and that the software had placed the truck below ground to make the match (RT 7984:2-23). Imes added that he had only “a rudimentary understanding of this” (RT 7984:28-7985:1). The written detail, the text later designated Exhibit O, laid out the below-ground Z coordinate and why a position along the curb was impossible (RT 7933:1-2; 7937:1-12).
The e-mail was not the same as providing the detailed text, or the supporting technical analysis. The distinction matters because counsel’s ability to cross-examine Liscio depended not merely on knowing that Rudin disagreed, but on having the specific measurements and reasoning needed to confront Liscio’s model.
That technical material was precisely what counsel needed to confront Liscio with the State’s original expert’s contrary measurements while Liscio was on the stand. My counsel said so on the record: it was information “I could have used on cross on Mr. Liscio,” it “came to light after the People rested,” and “we can’t unring the cross-examination of Mr. Liscio” (RT 7944-7945). The court agreed the material was Brady material the State “had a duty to provide” (RT 7944:17-18), but with no motion brought, it ruled there was “no issue before the court” (RT 7945:24-26). Having it after Liscio left the stand is not having it in time to cross-examine him with it.
See the trial transcript (RT 7944)
Put plainly: the defense was told in February that Rudin’s model put my truck below ground. The written detail of why, the text that was the perfect cross-examination of Liscio, came after Liscio had left the stand.
↑ Back to the menuF. Exhibit O: the four points that were not turned over in time
When Rudin reversed, he set out the specific bases for his rejection, “the four points that are a problem,” in a text message later designated Exhibit O. The court found that ADA Imes did email the defense about the problem: that Rudin could not validate the overall length of the truck against the FARO scan, that the software had placed the truck below ground level to make the match, and that there was a pixel-space issue, adding that he had only “a rudimentary understanding of this” and the defense should “feel free to contact Dr. Rudin” (RT 7984:2-7985:3). But the text message itself, which laid out, in defense counsel’s words, “the Z coordinate problems, curb placement problems and goes in detail,” was not provided. As counsel told the court, the prosecution “forwarded the e-mail saying that we fired him,” but “the contents of the text, which is Exhibit O, this was never given to defense” (RT 7932:10-7933:5). When the defense raised this, ADA Vos argued that the text was “IRRELEVANT TO THEIR ACCUSATIONS OF MISCONDUCT AND IRRELEVANT TO THEIR ACCUSATIONS OF SUPPRESSION” (RT 7932:4-6).
The trial court found that “Exhibit O the more detailed text message was, number one, still exculpatory, and number two, should have been provided” (RT 7985:27-7986:1). It denied relief anyway, reasoning under People v. Morrison that evidence is not “suppressed” if the defense obtains it before resting, and that the substance came in through Rudin’s eventual testimony (RT 7983-7986). In the same ruling, it denied the defense motion to strike Liscio’s testimony (RT 7986:10). Defense counsel then told the court that, “as Mr. Imes said, I don’t have to make my experts write reports” (RT 7986:22-23), and the four technical points were left in a text message rather than a report.
See the trial transcript (RT 7985, 7986)
The text was not peripheral. It was the written, itemized basis for rejecting the only physical evidence offered to place my vehicle at the scene, written by the State’s own long-retained expert. And after it surfaced, the State argued the opposite of its contents to the jury, telling the jury Rudin’s data “still matched” (RT 8207:28-8208:9) when the text listed the four points on which it did not.
Put plainly: the State’s own expert wrote down four technical problems that formed the basis of his qualified rejection of my truck. The prosecution sent the defense an email summarizing the problem and saying he had been let go, but not the four points themselves. Then it told the jury the opposite of what those four points said. The court found the text was exculpatory and should have been handed over, and denied relief because it eventually came out.
↑ Back to the menuG. My trial counsel
My counsel did object and did move to strike at several points: the speculation objection and motion to strike at RT 5080, the relevance objections at RT 5074 and 5167, and the cross-examination the court cut short at RT 5087, 5150, and 5156.
Counsel did not move to strike Liscio’s reflection opinion in its entirety, although Liscio had admitted he did not know the light source (RT 5140; 5148; 5154) and could not exclude a taillight (RT 5145:28-5146:5). Counsel did not challenge the foundation for Liscio’s particular opinion: whether he had sufficient data and a reliable analytical basis to attribute an unexplained light in a low-resolution night video to a specific part of a specific vehicle.
I identified the swapped captions in the Bachman report (Section C.6) to my trial counsel myself, and I asked counsel to impeach the witness with them. Counsel raised the discrepancy on direct examination. Counsel had Bachman identify which photograph was which, and he conceded the caption was “incorrect” (RT 7475:15-27). The examination then moved on to the circles and the electrical box (RT 7475:28-7476:6) without establishing why the swap mattered: that the photograph labeled as the video is the one showing lit running lights, and the photograph labeled as the 2014 exemplar is the actual video still, showing none.
↑ Back to the menuH. What the jury was instructed, and why it could not work
The jury was instructed under CALCRIM 224 that, before relying on circumstantial evidence to find a fact necessary for guilt, it had to decide whether the evidence allowed two reasonable interpretations, one pointing to guilt and one to innocence, and if so, to adopt the one pointing to innocence.
The truck identification was circumstantial in the purest sense. No witness saw me at the McStay residence. The State asked the jury to infer my presence from a vehicle in a grainy night video.
Here, unlike other parts of my case, the innocent interpretation did reach the jury. Rudin testified that he rendered a rejection. Stutchman testified to two independent grounds of exclusion. Liscio conceded he could not make an identification and that the distinguishing features cannot be seen. The innocent reading was not merely reasonable. Rudin rejected the identification, Stutchman identified grounds that exclude my truck, and Liscio could not identify the vehicle. Liscio did give a qualified opinion that the vehicle was consistent with my truck’s model, and the State was entitled to argue it. But no expert affirmatively identified the vehicle as my truck.
What the jury did not get was an accurate account of that testimony. Before it could weigh the innocent interpretation, it was told: that the defense expert called Rudin’s work flawed, when he answered only on the condition “if that was his work” and said he had never seen Rudin’s results (Section C.3); that Rudin reversed overnight and adopted the State’s latch theory, when he called the light a mystery light and kept his conclusion to trajectory (Section C.2); that Rudin’s method was dreamt up and never validated, when he described a variation on an old method, which he tied to 1995, and placed the limitation in the evidence, not himself (Section C.4); that the shadow showed the unique characteristics of my truck, when Liscio conceded none of that detail is visible and the outline was a trace of my own truck laid over the video (Section C.1); that the running lights were washed out, when the State’s expert said they were not detectible and offered a different vehicle as one explanation (Section C.7); and what the unidentified light was, in a passage that twice conceded no one knows (Section C.8). The trial court’s rulings limited further efforts to correct the prosecution’s account. The jury heard Liscio acknowledge that the illuminated spot might be a taillight and that another vehicle was possible. But when counsel sought the direct conclusion that, if the light was a taillight, the vehicle was not my truck, the court sustained the objection; and the summary of what the video actually showed was cut off as misstating the testimony and argumentative (Section D.2). The underlying exclusionary possibility was before the jury; its clearest formulation was not.
CALCRIM 224 required the jury, when circumstantial evidence reasonably supported two interpretations of a fact necessary to guilt, to adopt the interpretation pointing to innocence. The innocent interpretation here was that the vehicle in the Mitchley video was not my truck. That interpretation was supported by Rudin’s qualified rejection and Stutchman’s two independent exclusion factors. Liscio’s inability to identify the vehicle did not independently establish that it belonged to someone else, but it left the State without an affirmative expert identification. If the jury found both interpretations reasonable, the instruction required it to adopt the innocent one. The prosecution’s repeated mischaracterization of the expert testimony directly affected the evidence the jury was asked to evaluate in making that determination.
I cannot know what the jury did in deliberations, and I do not claim to. My point is about what the instruction was given to work with. The prosecution’s repeated misdescription of the expert testimony impaired the jury’s ability to weigh the reasonable innocent interpretation, that the vehicle was not my truck. The problem was not that CALCRIM 224 was left out or read wrongly. It was read, and read correctly. The problem is that the State’s account of the evidence distorted the facts the instruction was supposed to apply to, because the State had replaced the record with an account of the record, and the court had restricted portions of the cross-examination directed at restoring those distinctions. Elsewhere in my case the innocent evidence was kept from the jury; here it was described out of existence. The result for the instruction was the same.
Put plainly: the jury heard the truth. The State’s own first expert rendered a rejection of my truck on the data he had. The defense expert gave two independent exclusion factors. The State’s replacement expert could not identify the vehicle. Then the prosecutors told the jury the experts had said the opposite. The instruction told the jury to adopt the innocent reading if it was reasonable. By the time they deliberated, they had been told, again and again, that the witnesses had said something else.
↑ Back to the menuI. What this means
None of these things happened alone, and they cannot be understood alone. Each one protected the others.
The truck identification was the only physical evidence offered to place my vehicle at the McStay residence during the time my alibi covered. Nothing else did.
Take away what the record does not support, and nothing remains to place me there. No expert identified the truck. The State’s own expert of four years rendered a rejection of it, because on the data he had the geometry made the identification impossible. The defense expert excluded it on two independent grounds. The mid-trial substitute offered only “consistent with,” resting on an unknown light source, features he conceded are invisible in the video, and a shadow made from my own truck rather than observed in the footage. Even the prosecution, in rebuttal, described his conclusion as “I can’t exclude the truck” (RT 8449:14-17).
What carried the identification to the jury was the argument built on top of the testimony: disclaimed speculation presented as fact, invisible features described as visible, a conditional answer turned by two prosecutors into an unqualified criticism, facts planted through the prosecutor’s own questions, swapped labels in the State’s own report, a witness interrupted as he explained what the jury would later be told was proof, and a trial court that let the speculation in and kept the correction out.
That matters because of what the truck was answering. Cathy testified that I was home that evening, or “someplace else on the property,” such as “the business center at the clubhouse” (RT 5421:25-5422:4; see Home that night). The truck was the State’s answer to that. Once the identification is seen for what the experts actually said, that answer disappears, and nothing reliable places me at the scene. On top of that, the jury was instructed that it need not find my presence at the specific time my alibi addressed.
This is not a close case in which one bad ruling might have tipped the balance. Admitting non-identifying and speculative testimony, arguing it to the jury as proof of an identification no qualified expert would make, cutting off the cross-examination that would have exposed the difference, and the bench lending its apparent endorsement to the prosecution’s characterization, together supplied the jury with a physical placement the evidence did not contain. The State was relieved of proving the one fact its theory could not do without. Considering the truck evidence as it actually reads, rather than as it was argued, together with the alibi evidence and the other failures of proof documented throughout this site, I maintain that no reasonable jury properly evaluating the complete record would have convicted me.
J. Conclusion
My counsel told the jury: if it’s not his truck, you can’t convict him. The State did not disagree. It produced a truck identification that no witness would make.
The State’s own expert of four years rendered a rejection of my truck on the data he had, because on that data the identification was geometrically impossible. The defense expert gave two independent exclusion factors. The State’s replacement expert said he could not say it was my truck, that his opinion fit any truck of that model, and that the features an identification would need cannot be seen. The State’s case agent admitted he looked only for similarities, skipped the light that was missing, and swapped the labels on his own comparison photographs. The State’s own expert wrote down the four technical problems underlying his rejection of my truck. The prosecution sent the defense a summary, not the text; the defense got the text only after Liscio had left the stand; and the court found the text was exculpatory and should have been provided, but denied relief. The trial judge himself three times described Rudin’s evidence as excluding my truck.
The jury was told something else. It was told the experts matched my truck to the video, that the defense expert condemned Rudin’s work, that Rudin came around, that the invisible features were visible, that my running lights would wash out beside the headlights, when the State’s own night photograph and video show them plainly, and that a light nobody could identify was a reflection off a latch that was probably hanging open.
The State took testimony that the vehicle was “consistent with” a truck like mine and turned it into an identification. Its own expert would not make that identification, and the other two experts were diametrically opposed to it.
It was not my truck in that video. The evidence did not put it there. The only thing that put it there was what the jury was told about the evidence.
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