5/15/2012--Sentencing

[swedie]

[I]An agreement in court Monday will instead allow Michael Thomas Rafferty, 29, charged with the murder of eight-year-old Tori Stafford, to be tried outside the girl's hometown, and indeed, entirely outside surrounding Oxford County.

He watched the day's dry legal debate in silence and showed no reaction to what one legal expert called the "uncommon" decision to move the trial.[/I]

Monday, Crown attorney Brian Crockett told court he'd consent to an application by Rafferty's lawyers to move that trial out of Oxford County.

The decision was made for administrative reasons and had nothing to do with court security or Rafferty's ability to get a fair trial, Crockett said.

But it was clear Rafferty's lawyers were satisfied the agreement gave the accused a better chance of a fair trail."The concern was always that the people of any given municipality see things extraordinarily strongly because of the fact it is local," his lawyer Dirk Derstine said.

"All we want for Mr. Rafferty is a fair trial. We are trying to do everything we can to make sure that happens.

http://www.lfpress.com/news/london/2011/02/07/17185366.html

 

[~n/t~]

Sorry I have been so busy just got them uploaded this morning

Beautiful!! Thanks for posting them CL. I got very emotional when they released the balloons and doves. :tears:

RIP Tori :rose:

 

[swedie]

A heartfelt amateur portrait of Tori. Awesome drawing Jeff! <3

http://www.woodstocksentinelreview.com/ur/story/119101

 

[Maple1]

http://canlii.ca/en/on/onsc/doc/2012/2012onsc703/2012onsc703.html

Thanks Hello_Kitty for this link.
Perhaps this should go in the evidence links thread as well.

I found this to be a worthwhile read. Especially after hearing most of the trial through tweets and media reporting.
So many points for and against certain evidence coming in or not.

Legal transcript (see above link)
R. v. Rafferty, 2012 ONSC 703 (CanLII)

Item 60 on left margin
Pasted in, see last sentence:
[60] * * * * * Accordingly, the Applicant’s request to exclude the contents of the Honda Civic is dismissed, because he has failed to demonstrate a breach of his s. 8 Charter rights with respect to that search. *Thus, the Crown is entitled to submit the items found in the car, listed in Appendix A to their factum, as evidence at trial. *This includes the Good Life Fitness gym bag, upon which was found a mixed sample of DNA, an analysis of which could not exclude the Applicant and Tori Stafford as the donors, and which has been characterized by the Crown as perhaps the single most important piece of evidence in their case.*

The blackberry, again read the last sentence.
IMO, the judge knew they had other ways to bring in the most important phone info and the magic words are: ping, ping, ping

Pasted in:
[145]** ** The next three points all relate to the Blackberry backup files, where the data will corroborate the Applicant’s communications and relationships with others, both before and after April 8.* This evidence is relatively unimportant because in almost every case the same point can be proven through other evidence that was not obtained through a Charter breach.* Every communication involves both a sender and a recipient, and the Crown is in a position to provide this evidence from the other end of the phone, so to speak.

 

[Maple1]

IMO, he is so over spending anymore time with MR.
Hopefully, we will have him to thank when MR has no legal grounds for appeal.
He did get a fair trial, IMO

Pasted in:

http://derstinepenman.com/index.php/component/option,com_fabrik/Itemid,52/

Dirk Derstine was called to the bar in 1993 and has dedicated his career to providing a strong defence to those charged with very serious crimes. He has been counsel in over seventy jury trials.

He has been counsel in over thirty murder trials. He has been counsel dozens of times in appeals at the Ontario Court of Appeal.

Dirk believes strongly that every accused person has the right to a fearless defence. He currently specializes in the defence and appeals of serious indictable matters.

Mr. Derstine is a regular instructor in trial advocacy seminars, most recently for the Ontario Bar Assocation seminar on cross-examination techniques.

 

[BorgQueen]

IMO, he is so over spending anymore time with MR.
Hopefully, we will have him to thank when MR has no legal grounds for appeal.
He did get a fair trial, IMO

Pasted in:

http://derstinepenman.com/index.php/component/option,com_fabrik/Itemid,52/

Dirk Derstine was called to the bar in 1993 and has dedicated his career to providing a strong defence to those charged with very serious crimes. He has been counsel in over seventy jury trials.

He has been counsel in over thirty murder trials. He has been counsel dozens of times in appeals at the Ontario Court of Appeal.

Dirk believes strongly that every accused person has the right to a fearless defence. He currently specializes in the defence and appeals of serious indictable matters.

Mr. Derstine is a regular instructor in trial advocacy seminars, most recently for the Ontario Bar Assocation seminar on cross-examination techniques.

While people reading the tweets and media updates were scratching their heads (re: his defence), turns out that he did a damn good job ensuring his client got a fair trial. Good on him.

 

[Wondergirl]

Thanks very much Hello Kitty for the extraordinary link to canlii.ca that you provided.

I have only just begun to research what is on there, and read in it's entirety, the extremely informative document regarding the Search Warrants. Wow. There was ALOT of information in there.

I am going to post a seperate post on the R. v Rafferty legal documents that are now available, that I have found. Then, I am going to look up TLM's info. This site is invaluable for the case law and it says there are 1 million Canadian cases there.

Thanks again!

:gthanks:





*

 

[Wondergirl]

CITATION: R. v. Rafferty, 2012 ONSC 1162
COURT FILE NO.: 10856
DATE: 2012-02-16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Michael Thomas Christopher Stephen Rafferty

BEFORE: Heeney J.
COUNSEL: Michael Carnegie, Counsel for the Crown
Dirk Derstine, Counsel for the Accused

HEARD: January 31, February 1, 7 & 8, 2012

ENDORSEMENT: C-8, D-5 (STATEMENTS OF THE ACCUSED)

[1] In this motion, the Crown seeks an admissibility ruling with respect to two statements
given by the accused to the police, one prior to his arrst and one immediately after. The accused had brought his own motion for relief under the Charter, but it is not being pursued because it relates to statements by the accused other than those discussed in these reasons, which the Crown does not seek to use.

http://canlii.ca/en/on/onsc/doc/2012/2012onsc1162/2012onsc1162.pdf

 

[Wondergirl]

CITATION: R. v. Rafferty, 2012 ONSC 742
COURT FILE NO.: 10856
DATE: 2012-01-31
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Michael Thomas Christopher Stephen Rafferty

BEFORE: Heeney J.
COUNSEL: Michael Carnegie, Counsel for the Crown
Dirk Derstine, Counsel for the Accused

HEARD: January 31, 2012

ENDORSEMENT: C-7 (ELECTRONIC EVIDENCE)

[1] My ruling of January 31, 2012 in Application D-4, relating to the Charter challenge with respect to evidence obtained through the four search warrants issued May 22, 2009, has rendered inadmissible most of the items of electronic evidence that the Crown was seeking to have ruled admissible in the present motion. The effect of that ruling was to exclude, pursuant to s. 24(2) of the Charter, the information obtained from the search of the laptop and Blackberry of the accused which were seized from his 2003 Honda civic. Excluding that evidence, in turn, rendered the electronic evidence obtained from the 20 gig. Hitachi hard drive irrelevant, and it was ruled to be inadmissible on that basis.

[2] After reviewing the list at para. 2 of the Crown&#8217;s factum, it appears that there are only two items that remain to be dealt with in this motion. The first, the contents of the SanDisk digital memory card, were ruled to be admissible in my earlier ruling. In the present motion, the written Defence Position filed by Mr. Derstine indicates that the accused is not contesting the admissibility of the photographs on that memory card.

[3] The other item is the Neoprint printout of the Facebook profile of the accused, which was obtained from the corporate headquarters of Facebook in California, pursuant to the Mutual Legal Assistance Treaty. A copy has been marked as Ex. 5 on this motion. The relevant part of that profile is a message posted by the accused on April 8, 2009 at 7:01 a.m. Pacific time (10:01 a.m. Eastern) as follows: &#8220;everything good is comming my way."

http://canlii.ca/en/on/onsc/doc/2012/2012onsc742/2012onsc742.pdf

 

[Wondergirl]

CITATION: R. v. Rafferty, 2012 ONSC 1009
COURT FILE NO.: 10856
DATE: 2012-02-14
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Michael Thomas Christopher Stephen Rafferty

BEFORE: Heeney J.
COUNSEL: Stephanie Venne, Counsel, for the Crown
Laura Giordano, Counsel, for the Accused

HEARD: February 3, 2012

APPLICATION D-3: ACCUSED TO SIT AT COUNSEL TABLE ENDORSEMENT

[1] In this application, the accused seeks leave of the court to sit at the counsel table beside or behind his counsel, rather in the prisoner&#8217;s dock, for the duration of his trial. He has been seated, to this point in time, in the prisoner&#8217;s dock.

http://canlii.ca/en/on/onsc/doc/2012/2012onsc1009/2012onsc1009.pdf

 

[Wondergirl]

CITATION: R. v. Rafferty, 2012 ONSC 703
COURT FILE NO.: 10856
DATE: 2012-01-31

ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:

Randy Schwartz, for the Crown
HER MAJESTY THE QUEEN

Respondent

&#8211; and &#8211;

MICHAEL THOMAS CHRISTOPHER
STEPHEN RAFFERTY

Applicant

Dirk Derstine, for the Applicant

HEARD: January 17, 18, 19, 20 & 23, 2012

Re: Application D-4 (s. 8 and s. 24(2) of the Charter) (added by me: Warrant Issues)

HEENEY J.:

[1] This is an application by the accused Michael Rafferty (&#8220;the Applicant&#8221, in which he alleges a breach of his right to be secure against unreasonable search and seizure, as guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms. He seeks the exclusion, pursuant to s. 24(2) of the Charter, of certain evidence obtained pursuant to several search warrants.

[2] Among other things, the application raises the emerging and perplexing issue as to the proper ambit of the powers of the state when they seize and search computers, hard drives and smart phones that function like mini-computers.

http://canlii.ca/en/on/onsc/doc/2012/2012onsc703/2012onsc703.pdf

 

[Wondergirl]

CITATION: R. v. Rafferty, 2012 ONSC 2745
COURT FILE NO.: 10856
DATE: 2012-05-06
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Michael Thomas Christopher Stephen Rafferty

BEFORE: Heeney J.
COUNSEL: Michael Carnegie, Counsel for the Crown
Dirk Derstine, Counsel for the Accused

HEARD: May 3 and 4, 2012

ENDORSEMENT: VETROVEC WARNING

[1] This endorsement arises out of discussions during the pre-charge conference that took place on May 3 and 4, 2012.

[2] Those discussions centred on my draft charge, which had been provided to counsel in advance, and which formed the basis for our discussions at the conference. It included a Vetrovec warning relating to the unsavoury witness, McClintic, since both parties had previously requested it. It went into detail regarding her criminal background, her history of violence dating back to childhood, her use of drugs, her fascination with death rap, and the extent to which her choice of music and writings are filled with violent imagery. It also pointed out the most striking feature of her unsavoury background: that she had confessed to having killed the victim in this murder case, Victoria Stafford.

[3] The charge warned the jury that it would be dangerous to convict the accused on the unsupported evidence of McClintic alone. In accordance with standard practice, it went on to suggest 14 items of independent evidence that the jury might find to be supportive of important features in her evidence. There were actually more than 14 on the list, since the item relating to corroboration of her testimony regarding the accused&#8217;s sexual assault of Victoria Stafford had 3 parts to it.

http://canlii.ca/en/on/onsc/doc/2012/2012onsc2745/2012onsc2745.pdf

 

[Wondergirl]

CITATION: R. v. Rafferty, 2012 ONSC 1098
COURT FILE NO.: 10856

DATE: 2012-02-14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Michael Thomas Christopher Stephen Rafferty

BEFORE: Heeney J.
COUNSEL: Michael Carnegie, Counsel for the Crown
Dirk Derstine, Counsel for the Accused

HEARD: February 8 & 10, 2012

ENDORSEMENT: C-2 (PHOTOGRAPHIC EVIDENCE)

[1] This motion was brought by the Crown to determine the admissibility of certain graphic photographs of the body of Tori Stafford. The intention is to present these photographs during the testimony of Dr. Michael Pollanen, who conducted the post mortem examination, and who will be providing expert testimony as to the mechanism and cause of death.

[2] There were literally hundreds of photographs taken of the child&#8217;s remains. Those have been pared down by Dr. Pollanen to twenty photographs which he considers to be essential to enable him to fully and fairly deliver his testimony. Most of those
photographs are very clinical in nature, such as pictures of the reconstructed skull. Only three can be considered to be graphic in nature. Of those three, the Crown has agreed to eliminate photo #6, leaving only photos #3 and #4 in dispute.

http://canlii.ca/en/on/onsc/doc/2012/2012onsc1098/2012onsc1098.pdf

 

[swedie]

IMO, he is so over spending anymore time with MR.
Hopefully, we will have him to thank when MR has no legal grounds for appeal.
He did get a fair trial, IMO

Pasted in:

http://derstinepenman.com/index.php/component/option,com_fabrik/Itemid,52/

Dirk Derstine was called to the bar in 1993 and has dedicated his career to providing a strong defence to those charged with very serious crimes. He has been counsel in over seventy jury trials.

He has been counsel in over thirty murder trials. He has been counsel dozens of times in appeals at the Ontario Court of Appeal.

Dirk believes strongly that every accused person has the right to a fearless defence. He currently specializes in the defence and appeals of serious indictable matters.

Mr. Derstine is a regular instructor in trial advocacy seminars, most recently for the Ontario Bar Assocation seminar on cross-examination techniques.

Thank you Maple for the link. MR got a VERY FAIR trial indeed, no doubt in my mind. Again I go back to cross examination techniques or lack thereof. JMHO I think Mr. Derstine needs to work on his cross examining techniques. Or as in MR's trial, as Derstine stated "everyone deserves the right to a fair trial". And that is just what he did for MR; fair IMO (and possibly Derstine's also) is, you do the crime, you do the time and I will only defend you in all fairness and according to the law. Derstine never once denied MR wasn't involved in some way, shape or form. JMHO.

 

[swedie]

CITATION: R. v. Rafferty, 2012 ONSC 1098
COURT FILE NO.: 10856

DATE: 2012-02-14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Michael Thomas Christopher Stephen Rafferty

BEFORE: Heeney J.
COUNSEL: Michael Carnegie, Counsel for the Crown
Dirk Derstine, Counsel for the Accused

HEARD: February 8 & 10, 2012

ENDORSEMENT: C-2 (PHOTOGRAPHIC EVIDENCE)



http://canlii.ca/en/on/onsc/doc/2012/2012onsc1098/2012onsc1098.pdf

Wondergirl thank you for all the informative links. So many technicalities to deal with. So many fine lines. From reading through all this information it is so telling and easy to understand how things of evidentary value can be thrown out or be counted as inadimissible. Everything must be followed to a T, all i's dotted and t's cross for sure. So delicate is the line between the rights of the victim and that of the accused. :moo:

Will be interesting to read TLM's SOF in totality. I would imagine it will be released to the general public once the court knows as to whether MR will file an appeal and as to whether it will be denied or follow up on. The reporters who were at her sentencing are privy to all the information in the SOF, but I believe they would not be allowed to release any of this information until all is settled in regards to an appeal from MR. IMHO I believe he will file one because that is how cocky and arrogant he is not to mention that is a trait of a psychopath along with; denial of wrongdoing, untruthful, lack of sincerity, no remorse, they are irrational and have no shame. JMO

 

[BorgQueen]

[/B]

Thank you Maple for the link. MR got a VERY FAIR trial indeed, no doubt in my mind. Again I go back to cross examination techniques or lack thereof. JMHO I think Mr. Derstine needs to work on his cross examining techniques. Or as in MR's trial, as Derstine stated "everyone deserves the right to a fair trial". And that is just what he did for MR; fair IMO (and possibly Derstine's also) is, you do the crime, you do the time and I will only defend you in all fairness and according to the law. Derstine never once denied MR wasn't involved in some way, shape or form. JMHO.

I don't think he needs to work on his cross examining skills. There really wasn't much for him to do there. As Mr. Derstine has stated, the Crown had a strong case. Cross examining has the potential to backfire. He asked questions where he needed to, and just let it be if he didn't absolutely need to. I also do not believe for a second that he threw his arms up in the air and worked to put his client in jail. He did his job. He provided his client with the best defence possible (which is his right), and ensured his client received a fair trial. I have no doubt that he believes the right decision was made by the jury, but when working as a defence lawyer, one has to compartmentalise ones feelings. If he let his feelings about his client get in the way (whatever they may have been), there would have been many, many errors and possibly a mistrial (or granted appeal).

MR got a fair trial AND the correct sentence. As flawed and problematic as the law can be, this time it worked. And thanks to everybody who worked very hard to make sure the law was followed without error -- including Mr. Derstine.

It was a nasty job, somebody had to do it.


JMO
:moo:

 

[AbbeyR]

MR got a fair trial AND the correct sentence. As flawed and problematic as the law can be, this time it worked. And thanks to everybody who worked very hard to make sure the law was followed without error -- including Mr. Derstine.

I totally agree.

I think Derstine did a great job with the cards he was dealt. I'm sure everyone has seen some of the big American trials -- think of how nasty this trial could have been. I respect Derstine's minimalist approach to cross-examination. He couldn't exactly challenge the facts, so the only other alternative I can imagine, is if he had chosen to tear all of the witnesses apart or tried to spin some ridiculous rumor into doubt. I am thankful that he did not play dirty.

 

[maxfactor]

CITATION: R. v. Rafferty, 2012 ONSC 1162
COURT FILE NO.: 10856
DATE: 2012-02-16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Michael Thomas Christopher Stephen Rafferty

BEFORE: Heeney J.
COUNSEL: Michael Carnegie, Counsel for the Crown
Dirk Derstine, Counsel for the Accused

HEARD: January 31, February 1, 7 & 8, 2012

ENDORSEMENT: C-8, D-5 (STATEMENTS OF THE ACCUSED)



http://canlii.ca/en/on/onsc/doc/2012/2012onsc1162/2012onsc1162.pdf

I see from your link that Det Smyth offered Rafferty the chance to go and help look for Tori's body too. Hmmm, wonder why he refused?

 

[BorgQueen]

I see from your link that Det Smyth offered Rafferty the chance to go and help look for Tori's body too. Hmmm, wonder why he refused?

He refused because it was evidence against him. It would prove that he was guilty in some way, and that McClintic was not lying. She was his "violent pawn". He recruited her because he saw in her somebody who will do his dirty work, and somebody to take the fall for him. He wanted HER to go down for what he did, so he can go free to do it again. From here, it looks very much like he worked very hard to cover up for himself, while leaving her to the wolves. He gets off on ruining the lives of others. I am NOT defending her AT ALL. She is absolutely guilty, even she said so herself. But she WAS another victim of his. He wanted her to go down. He got off on it. He tried to point LE in her direction during that first interview! I am very glad that she changed her mind about going down alone.
But, IMO, THAT would be why he refused. He wanted to (and believed he would) get away with it, while destroying yet another life (such as it was...).

Pretty sure I don't need to say what I think of MR. One can guess and get that right.
One of the debates on WS during the trial seemed to be 'who is the most evil of the two?'. I'd say that goes to MR. TLM is her own type of evil, she is also guilty of this crime, but MR was the leader. The Honda was the "engine", and it belonged to MR, the driver. TLM was the 'passenger'. The 'violent pawn' that he used to carry out this crime. She doesn't feel fear, she feels anger. He needed that... and somebody to point the finger at.

:moo:

 

[puppyraiser]

He refused because it was evidence against him. It would prove that he was guilty in some way, and that McClintic was not lying. She was his "violent pawn". He recruited her because he saw in her somebody who will do his dirty work, and somebody to take the fall for him. He wanted HER to go down for what he did, so he can go free to do it again. From here, it looks very much like he worked very hard to cover up for himself, while leaving her to the wolves. He gets off on ruining the lives of others. I am NOT defending her AT ALL. She is absolutely guilty, even she said so herself. But she WAS another victim of his. He wanted her to go down. He got off on it. He tried to point LE in her direction during that first interview! I am very glad that she changed her mind about going down alone.
But, IMO, THAT would be why he refused. He wanted to (and believed he would) get away with it, while destroying yet another life (such as it was...).

Pretty sure I don't need to say what I think of MR. One can guess and get that right.
One of the debates on WS during the trial seemed to be 'who is the most evil of the two?'. I'd say that goes to MR. TLM is her own type of evil, she is also guilty of this crime, but MR was the leader. The Honda was the "engine", and it belonged to MR, the driver. TLM was the 'passenger'. The 'violent pawn' that he used to carry out this crime. She doesn't feel fear, she feels anger. He needed that... and somebody to point the finger at.

:moo:

I agree 100%. MR's secrets and double life, (and the fact that he hid both so well) IMO makes him much, much more dangerous than TLM. I suspect that had it not be TLM, there would have eventually been another female groomed by MR to help carry out his desires.