In opening remarks on March 5 to jurors in the Michael Rafferty trial, Ontario Superior Court Judge Thomas Heeney was explaining that in the weeks to come, they might be asked to leave the room while lawyers argued important legal matters in their absence.
The judge then said something that dozens of his fellows have uttered before him, and with equal unctuousness.
“We are not trying to hide anything from you,” he said.
But that simply wasn’t the case, and the judge and everyone in the courtroom but the jurors and the public knew it.
After pre-trial arguments held two months before the jurors were even selected, Judge Heeney had kicked out a great swath of powerful evidence of Mr. Rafferty’s sexual interest in children.
In a decision released Jan. 31, the judge ruled the jurors would never hear that forensic examination of Mr. Rafferty’s laptop revealed that in the months leading up to the eight-year-old’s slaying, he had done Google searches for “underage rape,” “real underage rape” and “best program to download child porn,” or that he had recently possessed substantial amounts of child pornography, including videos depicting “how-to instructions for child sexual assault” and others with what prosecutors called “a disturbing instructional purpose” and even several “snuff” films.
And in a decision made during the trial, when prosecutors tried to persuade the judge that the landscape had changed and he should re-consider his decision at least so far as the Google evidence was concerned, Judge Heeney again refused.
At one point during that argument, prosecutor Michael Carnegie snapped, “We always talk of the faith we have in the jury system [yet] we always seem to ignore it whenever we have evidentiary applications.”
If born in frustration, in his little “aria on the jury system” as he later self-mockingly called it, Mr. Carnegie nonetheless had put his finger on what is the white elephant in the sprawling criminal justice room.
It is this: Judges forever wax on about the strengths of the jury system yet routinely keep evidence — usually the very sort that to the layman would seem to be the most relevant — from them on the grounds they would misuse it or be “inflamed” by it.
To use the language of the courtroom, it’s a “reasonable inference” that this is because judges don’t wholly trust either jurors’ intelligence or judgment.
‘Judges so often exclude evidence the “What-the-jurors-didn’t-hear” story is now a staple’
The triers of the facts, which is the role jurors play at trial, often don’t have before them some of the most critical facts; things are kept from them, and the vaunted truth-seeking function of the trial is thus distorted if not outright foiled.
It raises the question of why, when the system doesn’t trust the triers of the facts, it even bothers with jury trials and doesn’t move to trial by judge alone, as happens in some parts of the world.
Still, even given all this — that judges so often exclude evidence the “What-the-jurors-didn’t-hear” story is now a staple of courtroom reporting — Judge Heeney’s reasons were surely curious.
Stripped to the core, the judge said that though the police had acted legally in getting search warrants for Mr. Rafferty’s home and car, and though they honestly believed that was sufficient to allow for a forensic examination of the hard drive, BlackBerry and laptop found therein, and though the law on such searches was then evolving, the police should have anticipated how it might change and sought another warrant to look at the devices.
In essence, Judge Heeney said, the police were good cops but bad lawyers.
As a “remedy” for what he called their carelessness, he deemed the search a violation of Mr. Rafferty’s Charter-guaranteed right against unreasonable search and seizure and threw the evidence out.
As well as the Google searches, also found on the laptop were download artifacts “indicative of the recent possession of known child pornography imagery” and two Hollywood movies dramatizing either child kidnapping (Gardens of the Night, which was downloaded just 12 days before Tori disappeared) or child sex killing (the 2006 film Karla, a fictional version of the Karla Homolka/Paul Bernardo sexual assaults and murders of three girls).
There was plenty of other evidence about Mr. Rafferty, chiefly that he had a penchant for sexual choking, that the jurors never heard because prosecutors didn’t try to have it admitted.
They had lined up no fewer than 12 women — not counting Terri-Lynne McClintic herself — who would have testified about Mr. Rafferty’s fondness for choking out his partners.
Not all of these episodes were consensual, prosecutors said in a so-called “bad character” factum that was filed with the court but never argued in full.
Indeed, Mr. Rafferty actually had one of his reluctant partners sign a waiver, giving him consent to choke her. “I agree to what Mike and I are doing tonight, sexual choking and passing out and other things,” it read.
The sexual choking had some real significance given Ms. McClintic’s evidence — in her first version of the killing, when she claimed it was Mr. Rafferty who did it — that she had heard a “gurgling” sound coming from Tori in the moments before her death.
She interpreted that to mean the little girl was being choked, a practice with which she was not unfamiliar.
As the 318-page ITO — Information To Obtain a Search Warrant — makes plain, until May 19, 2009, when Ms. McClintic abruptly confessed and for the first time implicated Mr. Rafferty, the massive investigation had “no clear direction.”
Indeed, police were looking hardest at members of the little girl’s own family: Her mother, Tara McDonald, was an admitted OxyContin addict and had been “peculiar in her statements” to police; her boyfriend James Goris had convictions for theft and drug trafficking; Ms. McDonald and her mother each told officers they suspected one another.
‘The law governing computer and electronic searches was then very much in a state of flux’
And all around the sordid periphery of Ms. McDonald’s side of the family were associates who used or dealt drugs or who had had brushes with the law.
But when Ms. McClintic confessed, and she and Mr. Rafferty were arrested, police switched gears and quickly sought warrants to search their houses and Mr. Rafferty’s distinctive 2003 Honda Civic — the car Ms. McClintic said was used to abduct Tori and in which she said Mr. Rafferty had raped her.
In pre-trial arguments, Mr. Rafferty’s lawyer, Dirk Derstine, challenged almost everything about the search in trying to get the evidence tossed.
But Judge Heeney found the police had been honest and acted properly and legally — except that they sent the hard drive seized from Mr. Rafferty’s house and the BlackBerry and laptop found in his car to an OPP forensic examiner without getting a secondary warrant.
The law governing computer and electronic searches was then very much in a state of flux.
There had been judicial hints that without a secondary warrant, such searches might not survive a Charter challenge, but the matter simply wasn’t settled yet.
When the forensic examiner asked if he needed a secondary warrant, a senior OPP officer and head of the search warrant team, Detective-Sergeant Bryan Gast, told him he didn’t. He relied on his experience, his training and on his reading of a law book, Hutchinson’s Canadian Search Warrant Manual.
In the edition Det.-Sgt. Gast had, the author warned vaguely against wide-ranging police searches and concluded, “At present, these issues remain unresolved but it is likely … [they] will be challenged as over seizure.”
Sure enough, just two months after the police had examined Mr. Rafferty’s laptop, came that first decision, a case called R v Little, which said clearly that police should seek secondary warrants before looking through computers and the like.
‘The judge in that case found there was a Charter breach, she admitted the evidence’
Still, though the judge in that case found there was a Charter breach, she admitted the evidence.
Even Randy Schwartz, the prosecutor who argued this issue for the Crown, had to acknowledge that according to the current state of the law, there had been a technical violation of Mr. Rafferty’s Charter rights.
But he fought vigorously to have the evidence admitted anyway, just as the judge in the Little case had done.
Kicking it out, Mr. Schwartz told Judge Heeney, “would deprive the jury of the tools it needs . that’s what you would be doing if you weBut, while admitting that “at the time of the search, no binding authority indicated that the police were obligated to obtain a [separate] search warrant” to examine the laptop, Judge Heeney nonetheless found that Det.-Sgt. Gast took “the risk” the law might change.
Then, on Jan. 13 this year, everything changed again.
In the fall of 2011, prosecutors had been intending to argue that much of the “bad character” evidence against Mr. Rafferty, including his habit of choking his partners, should be allowed.
Ms. McClintic, after all, had pleaded guilty to first-degree murder as a party to the crime, not as a principal. The penalty was the same — an automatic life sentence — but prosecutors were anticipating that Mr. Derstine might well try to point the ultimate finger of blame at her.
Mr. Derstine would have had plenty of ammunition too, for Ms. McClintic had already admitted to luring the little girl away and buying the murder weapon, and for a 21-year-old she had a violent and deeply troubled background.
If the defence suggested she was the killer, and that she is the sort of person more likely to have killed the child, prosecutors said they should be entitled to similarly put Mr. Rafferty’s character at issue.
Their factum was filed last fall, but when Ms. McClintic did her shocking about-face on Jan. 13 — she told a prison counselor it was she who had bludgeoned Tori to death, not Mr. Rafferty — prosecutors could hardly complain if Mr. Derstine made her character an issue.
The “bad character” matter was thus adjourned unless and until the defence put Mr. Rafferty’s character at issue.
Precisely that happened on March 23, in mid-trial, during Mr. Derstine’s cross-examination of Ms. McClintic.
Not content with her claim that she was the killer, Mr. Derstine suggested she was the “engine” driving the entire crime and that at one point she had “offered” Tori to Mr. Rafferty sexually, and “when it became clear he didn’t want your gift,” Mr. Derstine said, Ms. McClintic sent him away from the car and killed the child.
In other words, Mr. Derstine was suggesting that Mr. Rafferty wasn’t the sort of fellow to want to have sex with a child.
Leaving that impression uncorrected with jurors was, Mr. Carnegie said furiously in their absence, “a distortion of the truth-finding function” of a trial.
Court handout
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So late last month, prosecutors tried in a limited way to persuade Judge Heeney that by his questions, Mr. Derstine had opened the door and that the judge should re-think his earlier ruling.
(Mr. Derstine at one point actually argued that he had not been suggesting Mr. Rafferty wasn’t that sort of man, but rather that his question was more analogous to a suggestion that, “If on a Tuesday Frank said no to a drink doesn’t mean Frank doesn’t take a drink.”)
Bizarrely, an enduring difficulty with the Google searches was that if all of them were introduced — Mr. Rafferty had also searched for “naked girl seizing,” “seizures girl,” and “epileptic naked” — Mr. Derstine worried that Mr. Rafferty would appear a deviant, and if only the child-rape ones were allowed, it would appear he was interested only in sex with children, when he was in fact interested in sex with epileptics too.
In any case, the judge found that because Ms. McClintic didn’t “adopt,” or agree with Mr. Derstine’s suggestions, they remained simply that. And because lawyers’ questions aren’t evidence, there was no evidence before the jurors, he said, to trigger any action on his part.
In the result, jurors heard none of it.
Mr. Rafferty didn’t testify.
The only time jurors even heard his voice was when he pleaded not guilty, and in a brief audio interview with the police shortly after he first hit their radar as an associate of Ms. McClintic.
As they headed to their jury room Thursday, the jurors knew little of Michael Rafferty. The system hadn’t trusted them with the considerable volume of information there was about the stolid man in the prisoner’s box: They weren’t smart like lawyers or judges. They were merely the triers of the facts.
Interestingly, Judge Heeney often treated them, as many judges do, not only as slightly simple civilians, but as delicate flowers.
From that first day of trial, he regularly warned these nine women and three men — capable adults all, with jobs and families and responsibilities — about the “graphic and disturbing” evidence they were about to hear.
On the day forensic pathologist Dr. Michael Pollanen took the stand — through him, several photos of Tori’s terrible injuries were shown — the judge told the jurors “this will be the worst … you really need to steel yourselves.”
Yet throughout the nine weeks of the trial, as even police witnesses sometimes grew tearful in the stand and journalists snuffled, the jurors maintained their composure and gravity, as jurors before them almost always have done.
‘The jurors were tougher, smarter and more resilient than the system credited’
None of them swooned.
No one gasped in horror.
Not a one ever put up a hand, asking for a break.
[...]
Odds are, in the words famously uttered by the actor Jack Nicholson in the movie A Few Good Men, they could even have handled the truth.
re to exclude this evidence.”
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