weekend discussion thread: 4/14-16/2012

[puppyraiser]

TLM may be in jail, but she recently testified in this trial.

It is upon her testimony that the Crown has built it's case.

The reason for TLM bringing VS to MR's car is an essential part of the Crown case showing the intent and knowledge required to find guilt on the charges.

TLM's testimony and credibility as a truthful witness are important issues.

JMO

But if TLM is such a liar then we should not believe anything she says, including the confession that she was the one to hold the hammer.

 

[Ardy]

BBM

I should read the whole post before I respond

Again, if we are to believe Derstine's suggestion of a drug debt, he knew at one point before Tori died that she was being held for a drug debt, it's at that point that it should have clicked for him, but it didn't and that's why he is being charged of kidnapping and murder. As for the rape, jurors I'm sure will use their common sense in that matter.

I do understand what you mean tho about not being able to react quickly to a situation like that. But after the fact when he was home in his comfy bed while Tori was buried under the rocks, he should have thought that wasn't right at all.

So many lives ruined by this

I agree wholeheartedly with you.

"Decision time" for MR was as soon as TLM uttered the words about an abduction. He should have driven directly to LE and nowhere else.

If he decided to ponder it over..............allowing TLM the access to murder VS........he made a grievous decision that resulted into a tragic ending.

His behaviour after the fact........is purely contemptuous.

JMO

 

[brighidin]

wow we must have been on that web site at the same time...I linked it further up from yours....I could do one better than you ha...(no offence just a casual comment ) as I have a SIL that is a lawyer with the Dept of Justice in Ottawa...BUT....I have bugged him so much over the RW case that I doubt if he would want me to start on him again...

Oh yeah? Well, my dad could beat up your dad!

If we both asked, I bet we would get three different answers. Lawyers. lol

 

[matou]

I didn't find the woman on the list, although I'm pretty sure she was one of the one's that was in court on Friday. I'll check Friday's thread - but if anyone remembers that it was a different day, could you please let me know?

Thanks!

Salem

I found this:

Trial Day 23: Witness 8 Posted Thursday evening by Blair R. Wilson

Trial Day 23: Witness 8​

An 8th witness took the stand today at the Michael Rafferty Murder trial today.

This witness cannot be identified as per court order issued by Superior Court Justice Thomas Heeney.

The witness said she met Rafferty on Sunday April 12, 2009 just 3 days after Tori Stafford’s disappearance.

The two met on a ‘Plenty ‘O Fish” dating website online and spoke occasionally on the telephone.

The unknown woman said she last saw Rafferty on May17, 2009 – two days before his arrest in Woodstock.

The two dated for 5 weeks she testified and was told he was a Dance Instructor and Contractor.

She also told the jury Rafferty borrowed a drill for the installation of speakers in the car door, along with a front passenger window handle installation and she noticed the rear passenger side window handle was missing.

The woman also testified Rafferty’s rear seat of his 2003 Honda Civic was missing.

The testimony will resume tomorrow at 10am. Where the Crown will call several more witnesses to the stand who will discuss comments made by others in the case.

http://www.1047.ca/local-news/michael-rafferty-trial

 

[Macright]

f) Plea Negotiation
A defendant can plead guilty at any point as a
criminal case proceeds. The Crown attorney may
agree to withdraw some charges in exchange for
a guilty plea to others, or allow the defendant
to plead guilty to less-serious charges. Such
agreements spare taxpayers the cost of conducting
a trial and spare victims of crime from having
to testify. The Crown attorney and the defence
lawyer may agree, as well, to recommend a lighter
sentence than normal for the offence. The judge
who passes sentence is free to impose a harsher
penalty, but must have good reasons for ignoring
such recommendations.


well the above tibit is rather interesting...I myself asked this very same question a few days ago about whether MR could plead guilty to a lesser charge mid way through the trial...I was told that it was impossible but after some research myself I find that my question was not as crazy as thought but indeed MR could plead guilty ie: being an accessory etc... gotta love the internet...anything one wants to know is right there in front of our noses....IMO

 

[brighidin]

But, if he didn't intend for any of the crime to happen, he shouldn't be found guilty of these most serious charges.

JMO.........

I am not a legal eagle, by any means, so this maybe a dumb comment. I understand the distinction between 1st degree/second degree/manslaughter, but in the case of kidnapping, does intent matter? If you kidnap someone, you kidnap them, right? Are there lesser degrees of kidnapping?

Or maybe you were just referring to the murder charge.

 

[Macright]

here is a link to compliment my post of #725 where I obtained the information re..making a plead midway through a trial..

http://www.tryjudging.ca/downloads/english/pdf/students/YBTJ_module04.pdf


so you don't have to scroll through the pages try page #108...

 

[Salem]

I found this info if you or anyone would like to read it..it may explain some of the questions that have been posed by some...

http://www.justice.gc.ca/eng/pi/pcvi-cpcv/guide/sech.html

Thanks Macright. From this pamphlet, I get this (without doing a thorough reading): The defence lawyer may negotiate to have the charges withdrawn or to allow the accused to plead to a lesser charge. They may also explore the possibility of alternative measures for their client.

This also makes me think it might be part of the negotiation process - Crown charges Murder 1 and Defense asks them to include Murder 2 or Manslaughter and they go back and forth and the Crown does or does not, depending on the evidence.

Again - this is just my opinion and inference from reading the material.

Nice link. Thanks!

Salem

 

[dilbert]

So it would seem, in US at least, the jury can find the accused guilty of a lesser offence if they feel the evidence does not support the greater offence, and according to this, it is up to the judge as to whether or not to include the Lesser Included Offence instruction to the jury.

Instructions Requested by Defendant

Whether or not a defendant puts on a case by presenting evidence or calling witnesses, there are jury instructions the defense can request.
Failure to Testify

If the defendant didn't take the stand to testify, the jury may be instructed his silence creates no inference of guilt. This is important because some jurors may believe that defendant's failure to testify means he's guilty. A defendant isn't automatically entitled to this instruction. He must ask for it.

Lesser Included Offenses

Generally, a defendant can request a lesser-included offense instruction if, from the evidence, a rational jury could find him guilty of the lesser offense but not guilty of the greater offense. The instruction won't be given if the lesser offense requires an element not required for the greater offense. Likewise, if the evidence only supports conviction of the greater offense, the court will deny the request.

http://criminal.lawyers.com/Crimina...ar-Jury-Instructions-at-a-Criminal-Trial.html

MOO

 

[Macright]

Thanks Macright. From this pamphlet, I get this (without doing a thorough reading): The defence lawyer may negotiate to have the charges withdrawn or to allow the accused to plead to a lesser charge. They may also explore the possibility of alternative measures for their client.

This also makes me think it might be part of the negotiation process - Crown charges Murder 1 and Defense asks them to include Murder 2 or Manslaughter and they go back and forth and the Crown does or does not, depending on the evidence.

Again - this is just my opinion and inference from reading the material.

Nice link. Thanks!

Salem

you are welcome..I have added another link above that may be of interest to you and others...

 

[JayFriend]

Au contraire..............

Juries consider the judge's instructions as most serious.,

Any individual juror who didn't believe they had to strictly follow the judge's instructions, would soon be informed of their duty by the other jurors.

Random speculation wouldn't be tolerated by the others.

IMO........

So is it likely that if all 12 jurors had a very bad feeling about the defendant and felt reasonable doubt as to his innocence based on everything they'd heard in evidence, they would find him guilty just on the judge's say-so? How could they live with themselves? Are members of the jury allowed to talk to the press after it's all over? Ever?

 

[puppyraiser]

That is a good point........although to truly remain anonymous he could have put the information into a letter and mailed it to LE from another city.

Everything electronic is traceable, if experts want to find it.

The only explanation for his actions that I can come up with in my mind, are that IF he had no knowledge of what he was involved in and took no part in the crimes...........he somehow convinced himself that he didn't do the actual crime and therefore had done nothing wrong. It would take a convoluted sense of ethics and morality......but maybe that is what he has.

That is not to excuse him...............in any way, shape or form.

If he did absolve himself of the crimes by such means, he will be punished.

In fact, he already has been for 3 years and will have some more time to serve yet. His reputation is completely destroyed and he will most certainly have to move and change his name, regardless of the outcome of this trial.

Any more scorn we can heap on him...........is okay with me.

But, if he didn't intend for any of the crime to happen, he shouldn't be found guilty of these most serious charges.

JMO.........

Either his sense of right and wrong are so off base that he's morally corrupt or he's so naive it's frightening. MOO It's hard to believe that a man who was 28 yrs old at the time, with no known income and yet addicted to percs and oxys was able to continue on with the drug use, continue meeting women on POF after the horrifying murder of a child, zip around a few counties in Southern Ontario to meet women....... basically carry on his normal routine and not become totally unraveled if he were anything but morally corrupt.

 

[Macright]

Either his sense of right and wrong are so off base that he's morally corrupt or he's so naive it's frightening. MOO It's hard to believe that a man who was 28 yrs old at the time, with no known income and yet addicted to percs and oxys was able to continue on with the drug use, continue meeting women on POF after the horrifying murder of a child, zip around a few counties in Southern Ontario to meet women....... basically carry on his normal routine and not become totally unraveled if he were anything but morally corrupt.

the only thing I can add to that is maybe he has no soul....IMO

 

[Salem]

f) Plea Negotiation
A defendant can plead guilty at any point as a
criminal case proceeds. The Crown attorney may
agree to withdraw some charges in exchange for
a guilty plea to others, or allow the defendant
to plead guilty to less-serious charges. Such
agreements spare taxpayers the cost of conducting
a trial and spare victims of crime from having
to testify. The Crown attorney and the defence
lawyer may agree, as well, to recommend a lighter
sentence than normal for the offence. The judge
who passes sentence is free to impose a harsher
penalty, but must have good reasons for ignoring
such recommendations.


well the above tibit is rather interesting...I myself asked this very same question a few days ago about whether MR could plead guilty to a lesser charge mid way through the trial...I was told that it was impossible but after some research myself I find that my question was not as crazy as thought but indeed MR could plead guilty ie: being an accessory etc... gotta love the internet...anything one wants to know is right there in front of our noses....IMO

Here, in the US, the accused can change his plea from not guilty to guilty up until the jury comes back with a verdict - including during the time that the jury is deliberating. However, both the Prosecutor and the Defense have to agree to whatever the charge is. If the Prosecutor thinks he/she is winning, it is unlikely they will agree to a plea deal for a much lesser crime. And vice versa - if the defense think they are winning, they are not going to plea to a really harsh crime.

This can be beneficial to both sides depending on how the trial goes and what the evidence shows when it is all tallied up.

Again though, its not Canada but it sounds like they are very similar.

Salem

 

[Salem]

So it would seem, in US at least, the jury can find the accused guilty of a lesser offence if they feel the evidence does not support the greater offence, and according to this, it is up to the judge as to whether or not to include the Lesser Included Offence instruction to the jury.




http://criminal.lawyers.com/Crimina...ar-Jury-Instructions-at-a-Criminal-Trial.html

MOO

Well then - maybe I better pull out my Criminal Procedure book, huh? My understanding is that the charges came from the Prosecutor, NOT the judge/court.

Hmmmmm........

Salem

 

[dilbert]

Lesser Included Offenses

An accused may be found guilty of a lesser-included offense. This is a criminal offense that's either:

An offense necessarily included in the charged offense
An attempt to commit the charged offense
An attempt to commit an offense necessarily included in the charged offense

A lesser-included offense jury instruction can protect an accused from an improper conviction. It may be given by the court at the request of the accused or the prosecution.

http://criminal.lawyers.com/Criminal-Law-Basics/General-Overview-of-Criminal-Verdicts.html

 

[dilbert]

So, based on the info from my last two posts, both the accused or the prosecution can request the Lesser Included Offence instruction, but it's up to the judge to approve or deny it.

MOO and always glad to help

 

[Salem]

So, based on the info from my last two posts, both the accused or the prosecution can request the Lesser Included Offence instruction, but it's up to the judge to approve or deny it.

MOO and always glad to help

Here are my thoughts on this, before I look it up. I agree that the accused and the prosecution can request lesser included defenses. I do not think it is fair to the defendent for the Court to be able to include lesser offenses, that the prosecution has not included in the complaint (unless of course the defense asks for it) because if the Prosecution does not prove its case, the defendant is acquitted. Not charged with a lesser crime. For the court to add lesser crimes (without negotiating with the defense) would mean that if the Prosecution did not prove the charges, the Court could just give the jury new charges - so instead of acquitting, the jury finds the defendant guilty of a lesser crime - he/she was NOT charged with to begin with, kwim?

Interesting discussion. I'm going to look it up. And thank you for the links.

Salem

 

[JayFriend]

TLM testified that she and MR went to a car wash in Cambridge and went into a convenience store washroom to change clothes.

From what I understand, LE said they never located the car wash.

I am wondering why that would be.

The only explanation I can see is that TLM had no clue as to the location, only what it looked like. Similar to the crime scene location, she was miles off. She said "Cambridge" based on a sign on Highway 401, I believe. "Cambridge" is a vast region centred around Galt, Preston and Hespeller, sort of like Mississauga is a regional municipality composed of several towns and villages. For all we know, the car wash may not even have been in Cambridge.

 

[ChaChaCha]

So it would seem, in US at least, the jury can find the accused guilty of a lesser offence if they feel the evidence does not support the greater offence, and according to this, it is up to the judge as to whether or not to include the Lesser Included Offence instruction to the jury.




http://criminal.lawyers.com/Crimina...ar-Jury-Instructions-at-a-Criminal-Trial.html

MOO

Thx Dilbert .... I am going to piggyback on your post.

IMO the reason that MR has been charged with First Degree Murder is because Tori's death occurred during an abduction and alleged sexual assault.

Here is the excerpt from the Canada Criminal Code that I have bolded for clarity:

Murder One
Hijacking, sexual assault or kidnapping

(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:
(a) section 76 (hijacking an aircraft);
(b) section 271 (sexual assault); (c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm);
(d) section 273 (aggravated sexual assault);
(e) section 279 (kidnapping and forcible confinement); or (f) section 279.1 (hostage taking).

Second degree murder
(7) All murder that is not first degree murder is second degree murder. R.S., 1985, c. C-46, s. 231;
R.S., 1985, c. 27 (1st Supp.), ss. 7, 35, 40, 185(F), c. 1 (4th Supp.), s. 18(F);
1997, c. 16, s. 3, c. 23, s. 8;
2001, c. 32, s. 9, c. 41, s. 9;
2009, c. 22, s. 5.


Murder reduced to manslaughter 232. (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

IMO Manslaughter is likely not a consideration.

JMO