Jurors deliberating the fate of Michael Rafferty, accused of raping and killing Victoria (Tori) Stafford, returned to a London, Ont., courtroom several times Friday to receive further instruction from the judge, as they posed two questions about sexual assault.
The 12-member jury asked Justice Thomas Heeney whether removing a child's underclothing over the course of an unlawful confinement constitutes sexual assault and asked later whether doing so would constitute sexual assault causing bodily harm.
In response to the second question, the judge laid out the three requirements for sexual assault causing bodily harm explaining that it involves an intentional force, which could include removing a child's clothes, the force was of a sexual nature and that it caused bodily harm.
Heeney explained that jurors could find Rafferty guilty of sexual assault if only the first two conditions were met.
Jurors asked the judge four questions since beginning their deliberations Thursday night, including a request to review evidence shown previously in the trial.
Rafferty, 31, has pleaded not guilty to first-degree murder, sexual assault causing bodily harm and kidnapping. A conviction on the first-degree murder charge would carry a life sentence in prison with no chance of parole for 25 years.
Tori disappeared outside her elementary school in Woodstock, Ont., on April 8, 2009. When her body was found more than three months later, she was only wearing clothing on the top half of her body
A pathologist testified that her remains were too decomposed to determine whether she had been sexually assaulted.
The Crown alleges the girl was abducted by Rafferty and Terri-Lynne McClintic, a former girlfriend who is now serving a life sentence after pleading guilty to the first-degree murder of Tori two years ago. The pair drove the girl first to Guelph and later Mount Forest, 100 kilometres north of Woodstock, where Rafferty raped the girl, prosecutors say.
Rafferty searched child porn
The girl's father, Rodney Stafford, said earlier Friday he is disappointed the jury hearing the case against the man charged with killing his eight-year-old daughter did not get the whole story about the accused.
Jurors did not hear that the man who spent a lot of time surfing online dating sites was also searching for something much darker on the internet — child pornography. Some of the search terms he typed into his laptop computer were "underage rape," "real underage rape pictures" and "nude preteen."
Rodney Stafford said outside the courthouse on Friday that he disagrees with the judge's decision to exclude evidence that showed Rafferty's laptop computer was used to search and view child porn, troubling details that only came out after the jury was sequestered Thursday night.
Police also found the movie Gardens of the Night had been downloaded to the accused's computer. The plot involves the kidnapping and sexual assault of a blond-haired, eight-year-old girl.
Not long after Tori disappeared, the 2006 movie Karla, about Paul Bernardo and Karla Homolka, was also downloaded to Rafferty's computer.
The reason the jury did not hear about any of those things is because of police error. The laptop was found in Rafferty's car, which police had a warrant to search, but they did not have a warrant to examine the contents of the computer.
It was ruled in pre-trial motions that police violated Rafferty's privacy by searching the computer and the evidence gleaned was not allowed to be introduced during his trial.
Stafford said he believes the information would have had a tremendous impact on the trial.
Michael Harding, who was Woodstock's mayor at the time Tori disappeared, said he was "horrified" to read some of the things the jury did not hear.
He said it is a concern that police did not have a proper warrant when they searched Rafferty's computer.
"I hope it doesn't cause something terrible to happen when it comes to [the jury's] ability to pass judgment," he said.
Jurors rewatch McClintic interrogation
Not long after deliberations started this morning, jurors made a request to Justice Heeney that they be allowed to watch a video from a May 24, 2009 interrogation of McClintic.
The judge granted the jury's request to watch a portion of an interview in which McClintic alleges Rafferty was the one who killed Tori, which contradicts testimony she gave during his trial that she delivered the fatal blows to the young girl.
In a one-hour portion of the six-hour interview, McClintic describes to OPP Det.-Sgt. Jim Smyth the sexual assault on the Grade 3 student and how she died. A tearful and sobbing McClintic tells the officer Rafferty kicked Tori and hit her repeatedly in the head with a hammer.
She testified over the course of two weeks during Rafferty's trial. Until January of this year, she had maintained Rafferty was the killer.
The Crown had to file various legal motions to be able to play the May 24 statement for the jury at trial. In order for the judge to allow the Crown to play the May 24 video as evidence, he had to assess its reliability. The fact that McClintic's original story put her at risk of being convicted of first-degree murder made it "much more probable" it was true, he concluded during discussions in March when the jury was excused.
The Crown successfully introduced a motion earlier in the trial to get the interrogation tape presented as evidence in Rafferty's trial, which means it can be used by the jury in their deliberations. Typically, previous inconsistent statements are only used to determine the credibility of a witness.
"This is not a situation where she was merely pointing the finger at the accused as the perpetrator," Heeney said at the time. "She provided enough information against herself in the May 24 statement to ensure her own conviction.... Why would she do that unless it were true?"
The new version of events is far less reliable, Heeney concluded.
Rafferty was frowning and shaking his head while the video played in court.
Jury resumes deliberations
After watching the video, Heeney explained that sometimes when jurors want to review certain testimony, they are also shown the relevant portions of the cross-examination of the witness.
He said he would not do that in this case but reminded the jury that McClintic's May 24 statement contradicts what she said during her testimony at Rafferty's trial.
"Most notably, of course, that it was she who wielded the hammer and stomped the child, not Mr. Rafferty," Heeney said.
Heeney told jurors Thursday they could find Rafferty guilty or not guilty for sexual assault or kidnapping. However, there are several options when returning a verdict on the murder charge, due in large part to McClintic.
The judge laid out a number of possible scenarios, involving Rafferty or McClintic delivering the fatal blows, which could result in a conviction of manslaughter, second-degree or first-degree murder. The jury could also return a not guilty verdict.
Jury members have been sequestered since Thursday evening after the judge gave his charge to the jury.