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Jury now out in Tori Stafford murder trial

Michael Rafferty, who appeared in court for a pre-trial motion, leaves the courthouse in Woodstock, Ont., on Feb.7, 2011.

DAVE CHIDLEY/Dave Chidley / The Canadian Press

The Victoria (Tori) Stafford murder case is in the hands of the jury.

Shortly after 5:30 p.m. ET, Mr. Justice Thomas Heeney completed his day-long, 104-page charge to the nine-woman, three-man panel weighing the fate of Michael Rafferty.

"No jury will ever be in a better position to decide upon the facts of this case than you," he told them.

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Their deliberations will take place in the jury room on the 14th floor of the Superior Court building in downtown London.

Their first task is to select a foreperson.

As usual with a major trial, they will be sequestered overnight in a hotel.

The judge's remarks Thursday encompassed both the evidence in the case and the law, sprinkled with common-sense analogies readily understood by a layperson.

In May, 2009, Mr. Rafferty and his former girlfriend, Terri-Lynne McClintic, were charged in the kidnapping and murder of eight-year-old Tori. Now 31, he has pleaded not guilty to first-degree murder, sexual assault causing bodily harm and abduction.

In the prisoner's box, he listened attentively to the judge's instructions to the jury, sipping from plastic cups of ice water.

The trial is in its tenth week, and Thursday marked the 36th day of court proceedings.

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The jurors heard a total of 61 prosecution witnesses, while lead defence lawyer Dirk Derstine presented just one. His client did not testify.

With the murder charge, the jurors can take one of two routes to convict Mr. Rafferty, the judge explained: Either as the principal player, who actually killed Tori, or by aiding and abetting (encouraging) the crime.

If he was an aider or abettor, Judge Heeney said, the jury can convict him of either murder manslaughter.

With the other two charges, there is a straight choice: guilty or not guilty.

Three sets of circumstances make a killing first-degree murder, the judge explained: Either when it has been planned ahead of time, or when it occurs in the course of someone being sexually assaulted or confined.

Aside from the allegation of sexual assault, the broad facts of the case are not in dispute.

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Chiefly at issue is who of the two defendants was the driving force.

In April, 2009 Tori was lured from outside her school by Ms. McClintic and taken to Mr. Rafferty's car, parked nearby. She was then driven more than 100 kilometres to a secluded rural area north of Guelph, where she was beaten to death with a hammer the defendants purchased earlier that day.

Her remains, naked from the waist down, were discovered three months later.

Hammer blows to her head were the cause of death, the autopsy found, but the other two sets of injuries – 16 fractured ribs and a lacerated liver – could also have been fatal.

Ms. McClintic subsequently confessed to first-degree murder and two years ago she was sentenced to life imprisonment with little chance of parole for at least 25 years.

Now 21, she was the key prosecution witness at this trial.

But a few weeks before the trial began in March, Ms. McClintic altered her account of events in one key regard: She said that she – not Mr. Rafferty – wielded the hammer that killed Tori in a fit of murderous rage, triggered when she saw Mr. Rafferty raping her.

The Crown maintains it makes no difference which of the accused inflicted the fatal wounds: Each is equally culpable in Tori's death.

Judge Heeney's charge to the jury began with a review of some of the basics: the presumption of innocence and the Crown's burden of proof; the irrelevance of any information not aired in court; the importance of rendering a verdict "without sympathy or prejudice;" an explanation of what "reasonable doubt" means; the difference between direct evidence and circumstantial evidence, both of which are valid.

Then he outlined the defence theory as to how and why Tori died: that Ms. McClintic was the driving force behind events; that Mr. Rafferty was merely a horrified onlooker who did little more than drive the car that day, and reluctantly helped conceal Tori's body after Ms. McClintic murdered her; and that nothing she told the trial can be believed.

Under cross-examination by Mr. Derstine, Ms. McClintic forcefully rejected that scenario.

Nor did he offer any other supporting facts to buttress his argument.

As a result, Judge Heeney told the jury, Mr. Derstine's theory cannot be regarded as evidence.

Nor is Ms. McClintic's guilty plea relevant, he said.

"It has absolutely no bearing on whether Michael Rafferty is guilty."

The judge dwelt at length on the events of April 8, 2009, citing key portions of prosecution evidence, including Ms. McClintic's testimony, in which she recounted Mr. Rafferty telling her in the runup to grabbing Tori: "It'll be easy, they're just getting out of school. you just have to talk about dogs or candy."

The judge also reminded the jurors how Mr. Rafferty allegedly goaded Ms. McClintic into participating in the kidnap, according to her trial evidence.

"Are you going to do it?," she recounted her boyfriend saying, in reference to alleged discussions they had had earlier about abducting a child.

"See? I knew you were all talk and no action."

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At The Globe and Mail since 1982, in assorted manifestations, chiefly crime reporter, foreign correspondent and member of the Editorial Board, Tim is now retired. More

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