Jurors considering the case against the man accused of raping and killing Victoria (Tori) Stafford have listened to 62 witnesses and viewed almost 200 exhibits over the last two months but they haven't heard the whole story, including that the accused's laptop was used to search for child pornography.
Deliberations have started in the trial of Michael Rafferty, and because the jury is sequestered, what took place in court outside the presence of the jury can now be reported.
Rafferty, 31, has pleaded not guilty to first-degree murder, sexual assault causing bodily harm and kidnapping.
The jury was unaware the Crown tried to show the jury a number of terms entered into a Google search engine on Rafferty's laptop between Jan. 25, 2009, and April 7, 2009, one day before the blond-haired eight-year-old disappeared outside her elementary school in Woodstock, Ont.
Some of the phrases he searched were "underage rape," "real underage rape pictures" and "nude preteen."
That information had previously been ruled inadmissible because police violated Rafferty’s right to be free from an unlawful search by examining the contents of his BlackBerry and laptop without a proper warrant.
But the Crown sought to reintroduce the terms by arguing the defence raised evidence of Rafferty's character by suggesting Tori was offered — and rejected — as a sexual gift by Terri-Lynne McClintic.
McClintic pleaded guilty to the first-degree murder of Tori in April 2010 and testified over the course of two weeks during Rafferty's trial.
She told jurors she killed the girl by hitting her head repeatedly with a hammer, which contradicts a number of statements she gave, including during her own trial, that Rafferty was the one who delivered the deadly blows.
"It's gut-wrenching, because that's all information that you feel that should be out there," Tori's father, Rodney Stafford, told CBC's Connect with Mark Kelley after the jury began deliberations.
"There's a lot of information regarding Michael Rafferty that I feel should have been let out, but because it went against his character they couldn't release it."
Trial had many 'character landmines'
Prosecutor Michael Carnegie said the implicit suggestion was that Rafferty did not have a sexual interest in children, which he said was not sustainable based on data found on his computer.
Carnegie said there was another query, a search for advice on downloading child pornography, but prosecutors said they had no intention of trying to reintroduce that as evidence.
"This is a case that has had character landmines all over it and we've been fairly delicate in how we deal with that in many ways," Carnegie said during the voir dire.
Defence lawyer Dirk Derstine, however, said the information would harm Rafferty's right to a fair trial and could "fundamentally alter the character" of the proceedings.
Justice Thomas Heeney rejected the Crown's motion to introduce the search queries, ruling that Derstine had simply posed a question to McClintic, which she denied, and so had not entered the suggestion as character evidence.
During the same voir dire session, the Crown described how a movie about Karla Homolka and Paul Bernardo — who sexually assaulted and killed two teenagers in the 1990s – had been downloaded onto Rafferty’s computer two weeks after Tori disappeared.
Another film found on his laptop, Gardens of the Night, centres around the abduction of an eight-year-old girl with blond hair who is forced into prostitution. It had been downloaded on March 28, 2009. However, the judge ruled that the probative value of the film was outweighed by the potential to prejudice the jury.
Rafferty's character not on trial
Rafferty's character was the subject of a shorter voir dire after a former girlfriend testified he asked her to work as a prostitute.
Charity Spitzig also told jurors she gave Rafferty almost $17,000 between December 2008 and May 2009, including $500 on the day Tori disappeared.
Defence lawyer Derstine told the judge he didn't want to call for a mistrial but information about Spitzig's escort business was not supposed to come out in court.
Justice Heeney said the comment was offered by the witness and did not arise as a result of direct questioning from the Crown.
Spitzig's statement was made while jurors were hearing from more than a dozen women who were dating Rafferty during the spring of 2009, often at the same time.
The judge warned jurors that Rafferty's character should not be a prime consideration in the current case. The trial is not about how many women he dated, Heeney said, but what the women have said that is relevant.
Rafferty confronted McClintic during interrogation
Although jurors heard Rafferty's first interview with police, a 30-minute conversation on May 15, 2009, they were unaware investigators interrogated him for nearly four hours following his arrest several days later.
He continually and repeatedly denied all involvement in Tori's death, even after officers brought McClintic — who had implicated herself and Rafferty in the abduction and killing — into the room.
Investigators challenged him to tell McClintic that she was a liar to her face, which he proceeded to do.
Det. Staff Sgt. Jim Smyth, who found Tori's body more than three months after she disappeared, asked Rafferty during the interrogation about how he would be perceived in the media.
"Well, it doesn't matter what they say … nothing's gonna change," he replied.
"Let them think what they're gonna think," Rafferty told another officer about how the public would view him.
During the second week of the trial, defence lawyer Derstine voiced concern over photographs that showed Rafferty being transported in the back of a police car from the courthouse in London, Ont.
Derstine said such pictures could unduly influence the trial, noting that it is a general principle of the legal system to prevent the jury from seeing the accused in custody. He asked that his client be transported in a vehicle that would make such pictures difficult to take.
Rafferty has been in police custody since his arrest on May 19, 2009.
"It is regrettable but I'm not sure there is anything that I can do," the judge said, noting that the photograph had already been taken.
Closing arguments concluded earlier this week and the jury began deliberations on Thursday evening after the judge delivered his final charge.
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