Three times as they weighed the fate of the man accused of kidnapping, sexually assaulting and killing eight-year-old Victoria (Tori) Stafford, jurors posed questions of Mr. Justice Thomas Heeney.
Although the deliberations that led to their verdict – guilty on all counts – will forever remain secret, these queries represent the best clues as to what was on jurors’ minds during the more than 12 hours they sat on the 14th floor of London’s downtown courthouse deciding whether to send Michael Rafferty to prison.
The questions turned on three topics: Mr. Rafferty’s ex-girlfriend’s inconsistent statements to police, the exact definition of sexual assault and the burden of proof.
In each case, Mr. Justice Heeney discussed his response with Crown attorneys and Mr. Rafferty’s defence lawyer, Dirk Derstine, before bringing the jury back in to answer them.
The first time jurors asked for court to resume, they wanted to re-watch video of one of Terri-Lynne McClintic’s confessions to police. The young woman, who was dating Mr. Rafferty in the spring of 2009, admitted leading Tori away from Oliver Stephens Public School and bringing her to Mr. Rafferty. The Crown’s star witness, she testified that her former boyfriend had directed the crime and raped Tori in the back seat of his car. Ms. McClintic pleaded guilty to first-degree murder and is now serving a life sentence.
But there was one key difference between the version she told investigators in the May, 2009 video and the one she presented in testimony at trial. In her police interview, she said it was Mr. Rafferty who bludgeoned Tori to death; in the witness box, she said she had actually wielded the hammer.
Although prosecutors maintained it made no difference who actually killed the girl – both parties, they said, took part in the crime and were therefore guilty – they pushed hard to make sure the video, in which Ms. McClintic pinned most of the blame on Mr. Rafferty, was entered as evidence.
Jurors could have been hung up on deciding which version of her story to believe.
On two occasions, the jury asked court to explain whether removing a child’s undergarments while she was forcibly confined would constitute a sexual assault. At one point, they wanted to know if, when two people are present and one person takes off a child’s clothes, both are guilty of a crime. Mr. Justice Heeney asked them to rephrase that question as it was not clear what, if anything, the hypothetical second person was doing while the first person removed clothing.
Court heard during trial that Tori’s body was so badly decomposed there was no evidence of a rape, but that she was found naked from the waist down. The juror's questions could suggest they decided the only evidence of a sexual assault was Tori’s lack of clothing and wanted to know if they could convict Mr. Rafferty solely for this.
The question resulted in a long back-and-forth between Mr. Justice Heeney, Crown attorneys and Mr. Derstine. The judge ultimately opted to simply read the jurors a detailed definition of sexual assault that the lawyers had vetted, rather than tell them if removing a child’s clothing would constitute one.
The jury also inquired about the wording of one sentence in Mr. Justice Heeney’s instructions to them. But the question – which concerned whether the jury could convict Mr. Rafferty if they did not believe evidence that pointed to his innocence – touched on the vast issue of the burden of proof at trial.
Mr. Justice Heeney instructed jurors that it was not enough for them to reject evidence of Mr. Rafferty’s innocence: they must also believe, beyond a reasonable doubt, evidence from the Crown. The question is key in light of the paucity of evidence Mr. Derstine presented: he floated an alternative theory as to how the crime occurred, but presented little evidence to buttress it.
But in the end, the questions about sexual assault, three in all, seemed to be the jury’s sticking point. Within a couple of hours after their final question was answered, they returned guilty verdicts on all counts.
This suggests jurors spent most of their time discussing the sexual assault charge, which would certainly have been an efficient way to organize their deliberations. A homicide committed during a sexual assault is automatically first-degree murder: convict Mr. Rafferty of sexual assault, and the murder conviction would have to follow.
But in the end, there are only 12 people who will ever know for sure. And they are legally obligated not to talk about it.