Child porn searches kept from Rafferty jury

Randy Richmond, QMI Agency

Thursday, May 10, 2012

LONDON, Ont. – For three months leading to the murder of Victoria ‘Tori’ Stafford, Michael Rafferty searched the Internet for child porn.

His searches included “underage rape, “real underage rape pictures” and “pre-teen nude.”

He also accessed a how-to guide on raping children and dozens of child pornography videos, including some featuring incest and one purporting to be a “snuff movie” involving a child.

On March 28, 2009, 10 days before the kidnapping, Rafferty watched a movie about a man using a story about his lost dog to abduct a blond, 8-year-old girl walking home alone after school. She is taken away in the man’s car and forced later to perform sexual acts.

On April 23, 2009, after the kidnapping, he downloaded a movie about Karla Homolka.

But none of his disturbing Internet activity could be considered as evidence at his trial, largely because of a faulty search warrant.

Rafferty, 31, is on trial for kidnapping, raping and killing Tori on April 8, 2009.

After hearing 10 weeks of evidence and argument, the jury retired Thursday to begin reaching a verdict.

Because the jury is now sequestered, media can report information from search warrants, police reports, exhibits admitted during pre-trial and legal arguments when the jury was absent.

Included is Rafferty’s nearly four-hour police interrogation after his arrest that failed to elicit a confession.

In it, Det. Sgt Jim Smyth – known for getting confessions from several high-profile killers, including Rafferty’s girlfriend, Terri-Lynne McClintic, and former military commander Russell Williams – calls Rafferty a psychopath, “pure evil” and a “sick puppy.” At one point he brought McClintic herself into the room and challenged Rafferty to call her a liar to her face.

McClintic, 21, pleaded guilty to Tori’s first-degree murder in 2010 and is serving a life sentence. For three years she insisted Rafferty directed the kidnapping, raped Tori and killed her with a hammer. But on Jan. 14, two days before Rafferty’s pre-trial was to begin, she told police she was the actual killer.

Court documents released show how Smyth got the first confession in 2009, but then had to listen to her reverse part of that confession in 2012.

The most explosive information comes from the provincial police’s electronic crime unit’s computer searches and other police reports:

— Rafferty “joked” with girlfriends via e-mails that he’d like their young children as gifts. One woman texts him that she has 2-year-old twin daughters. “lol, can I have one?” he texts back. To another, he admits he’d like to do “bad dirty stuff … things that some ppl would really take offence to.” And, to yet another, he says he would like “ur first born” but “i cant say what i would like.”

— Some of his girlfriends told police he exhibited strange behaviour toward their children.

— A London woman told police in January 2009 that Rafferty drugged her glass of wine while they watched a movie at her place. He tied her hands behind her back, choked her and forced to have anal sex. Police determined the sex was not consensual, but the matter did not go to court.

— His interest in child porn extended back at least to 2006. A hard drive from an old computer found in Rafferty’s house contained nine child pornography videos, “some with an outwardly coercive element,” police reports say.

— He was also interested in adult and bestiality pornography and necrophilia websites, including some that showed “apparently deceased bodies left in rural areas,” police say. One image was of a dead woman in a field with no clothing from the waist down.

Police obtained most of the information from searching Rafferty’s laptop, BlackBerry and ipod Touch found in his Honda Civic and an older hard drive found in his house after his arrest.

Evidence of bad character is rarely allowed in trial. But twice, before and during the trial, the Crown tried to get at least the Internet searches admitted in order to suggest motive and planning of Tori’s abduction and to counter any defence allegations McClintic was responsible for the girl’s murder.

In pre-trial, Rafferty’s defence lawyer, Dirk Derstine, launched a blistering attack on the police search of the electronic items, saying the warrant for the car didn’t cover the computer.

“Inexplicably, no efforts were made to obtain a warrant to search the contents of the computer and other electronics,” he said.

Indeed, Det. Sgt Ken Falconer asked in an e-mail soon after the items were seized if a secondary warrant was needed to search the electronics found in the car. The head of the search warrant team told him to go ahead, believing the search warrant for the car was sufficient.

Justice Thomas Heeney agreed with the defence.

Most of the valuable evidence could be brought out in another way, Heeney decided. Much of the rest was either not valuable or “bad character” evidence that would prejudice the jury, he said.

Allowing the Internet searches would be, he acknowledged, “a close call.” But he decided against it.

The issue of the Internet searches surfaced again in trial, because Rafferty’s lawyer suggested McClintic offered Tori to Rafferty as a sexual gift, but he refused.

Derstine’s suggestion not only made McClintic look like someone who offers up little girls for sex, it made Rafferty look even nicer in contrast by refusing the gift, Crown attorney Michael Carnegie argued April 24.

It suggested that Rafferty has no sexual interest in children, the opposite of what the computer searches showed, Carnegie argued.

“There were other girlfriends, your honour, who have interesting and perhaps disconcerting things to say and conclusions drawn from various behaviours of Mr. Rafferty … towards their children,” Carnegie noted.

The Crown had no intention of calling them in, he said. Nor did the Crown show any inclination to seek admission of suspect text messages between Rafferty and his girlfriends.

Even if he is found not guilty, the exchanges raise questions. The OPP’s electronic crime section prepared hundreds of pages in reports on the searches of Rafferty’s laptop and other electronic devices. On March 30, 2009 he had this instant message exchange on his laptop with a girlfriend after an argument:

Girlfriend: well let me make it up to you. what would you like hun.

Rafferty: ur first born. i cant say what i would like.

Girlfriend: my first born.

Rafferty: thats up to u to be creative and if anything comes up i will call in my order. ur first born yes

Heeney decided he wouldn’t re-open that door to the computer searches. Unless a witness agrees to a question, those questions aren’t evidence. Because McClintic disagreed with the suggestion she offered Tori as a gift, that suggestion isn’t evidence.

And that meant, there was no evidence at the trial that McClintic offered girls as sexual gifts or that Rafferty refused this particular gift.

Allowing the laptop as evidence would have helped the Crown in other ways, as well. Rafferty exchanged his old BlackBerry just before his arrest and information on it was wiped clean.

But that old BlackBerry was synched to the laptop. That meant some text messages from April 8 and 9, 2009 remained.

For example, Rafferty texted McClintic April 9 “Get it?” That corroborated McClintic’s testimony he dropped off hair dye for her to change her appearance after Tori’s murder.

Through phone company records and testimony from girlfriends, the Crown was able to show in trial Rafferty made contact with several girlfriends and arranged dates in the hours after Tori’s death. That was hardly the response of a “horrified dupe” who merely witnessed a killing, the Crown argued.

One girlfriend texted Rafferty at 10:28 p.m., April 8, 2009, only hours after Tori was killed by hammer blows to the head, stuffed in garbage bags and hidden under rocks.

“Hey baby, how’s the work coming?” she asks Rafferty.

“Ick. Lol,” Rafferty texts back.