Rafferty Verdict Fair

By now, most people who even remotely follow Canadian news know that 31-year-old Michael Rafferty has been found guilty of kidnapping, first-degree murder, and sexual assault causing bodily harm in the death three years ago of 8-year old Victoria (Tori) Stafford of Woodstock, Ontario. His accomplice and partner in depravity, Terri-Lynne McClintic, pleaded guilty two years ago to first-degree murder. Rafferty is to be sentenced for his crimes on Tuesday, May 15, 2012. The heinous and unspeakably cruel details of their actions have been well-documented in the media and do not have to be repeated here.

Judge Disallowed Police Search of Electronics

There has been some criticism in the media, though, about the judge’s decision to not allow into evidence what police found on Rafferty’s computer and other electronic devices located in his home and car. Police had search warrants for his home and car, but not specifically for the electronic equipment. Police said they assumed they could search and seize anything, including the electronic gear, found in Rafferty’s car and home; apparently believing the search warrants were all-encompassing. 

The judge, Mr. Justice Thomas Heeney of the Ontario Superior Court of Justice disagreed. He said police should have had a separate search warrant to search Rafferty’s electronic equipment and because they didn’t, evidence found on Rafferty’s computer and other electronic gear would not be admitted as evidence. 

Honest Mistake by Police

Heeney acknowledged the police acted in good faith during the illegal searches of Rafferty's electronics, and said police believed they knew the law in these regards. But he said at the very least the police were “careless” in not finding out, with certainty, whether they needed a separate search warrant for the electronics.  
So far, there has been no public suggestion that police conducted the illegal or unconstitutional search of Rafferty’s electronic equipment out of malice. Presumably it was an honest mistake or ineptitude that nevertheless could have had dire consequences for the Crown and children in our society at large. 
What if Rafferty had been acquitted if the Crown's remaining evidence against him, without the electronics evidence, wasn't strong enough? 
What if evidence from Rafferty's electronics, which would have been admitted if police had used the proper search warrant, would have convicted him? 
What if Rafferty then went on to rape and kill other children as a result of the police's 'honest mistake?' 
As it is, however, the Crown's case stood up without the electronics evidence.
Internet Searches Predicted Crimes?

The incriminating evidence found by police on Rafferty’s electronic devices showed his predilection for child rape and murder, which Heeney forbade the jury to hear; this evidence was released to the media and public once the jury began deliberating on Rafferty’s future, such as it is, on Friday, May 11, 2012. 

The relevance of Rafferty’s particular internet searches to his and McClintic’s crimes against Victoria Stafford cannot be ignored. Police found evidence that in the weeks before kidnapping, raping, and killing little Tori, Rafferty had searched the internet for information about child rape, nude pre-teen children, and had watched movies about kidnapping and murdering small girls. 
Did Rafferty's internet searching actually predict and set in motion the chain of events that resulted in Tori's horrible last day of her life?

In McClintic’s testimony against Rafferty—if she was truthful--she testified Rafferty initially complained that Tori, at just 8 years of age, was too old and he wanted someone even younger. McClintic also testified Rafferty said, as they drove away from Tori’s school, with the girl hidden in the back seat, ‘You know I’m going to ______ her, right?’
While a pathologist testified decomposition of Victoria's body made it impossible to determine if she was sexually assaulted, the implicit evidence spoke volumes: her poor battered body was naked from the waist down, when her remains were finally found. Why? There seemed only one logical conclusion, which the jury also determined. 

Realistically, this helpless 8-year-old child would not have willingly taken off most of her clothes in front of two adult strangers. Someone did it for, or to, her.

Judge was Right

I believe the judge was right to not allow the illegally-obtained evidence from Rafferty’s computer and other electronic devices into trial. Imagine the outrage from the public and media if he had not been cautious and allowed the illegal evidence to be admitted--and if Rafferty successfully appealed his convictions, or got off altogether, on grounds that his electronic gear was searched illegally. 

Better Cautious than Reckless
So, Heeney had at least two choices: be cautious or reckless. By being cautious, he seemed to do all he could to ensure Rafferty got a fair trial. The judge did not give the jury the chance to find Rafferty guilty with evidence that was wrongly obtained, especially since that particular evidence could bias the jury against Rafferty for his perceived character alone—regardless of whether he actually committed the crimes.

If Heeney had been reckless, he would have ignored his concern that police inadvertently botched their searches of Rafferty’s electronic equipment; and he could have hoped the jury would try to be fair with the illegally-obtained evidence. Clearly, the judge didn’t think this option was good enough, and I agree.

If Heeney had been reckless and allowed the evidence from Rafferty’s electronic equipment into trial, the judge also could have been perceived as condoning the illegal police search; and colluding with police to sabotage Rafferty’s rights—all of which would have done a huge disservice to the justice system overall.

Potential Damage to Defence

The evidence from the wrongful search of Rafferty's electronic gear potentially could have destroyed the defence’s unproven theory that Rafferty had no interest in sex with children or murder. But his lead attorney, a good legal aid lawyer, Dirk Derstine, might have had a good case for either a mistrial, or at least demanding the jury not be allowed to consider that particular evidence.
Defence Disavowed Rafferty’s Violence

During Rafferty’s trial, Derstine implied his client was just a hapless dope and dupe who drove the car and helped McClintic clean up after she savagely killed little Victoria Stafford; and he implied his client wasn’t interested in sex with children or murder.
Derstine theorized--but didn’t prove—that McClintic engineered the plan from start to finish: she kidnapped Tori on her own without being asked or told to do so by Rafferty; she offered the little girl to Rafferty as a ‘sexual gift’ which Rafferty declined; and she killed the child in the car when Rafferty went for a walk on McClintic’s instructions. 

After Rafferty’s guilty verdict, Derstine was asked by the media how it felt, or what it was like defending Rafferty. His answer was evasive, saying every person “in our system” deserves a strong and effective defence in a court of law; adding that just as Victoria Stafford was somebody’s child, so is Michael Rafferty.

The difference, however, is that Victoria Stafford’s life as somebody’s child, with all its potential hope, accomplishments, loves, and happiness with her family and friends, was snuffed out with unimaginable brutality and cruelty by Rafferty and McClintic before it really began.

And Rafferty? He gets to live out the rest of his wretched life, albeit in a little cubicle among the worst offenders imaginable, unless he commits suicide or is killed first.