Is this a failure in our Legal system?

[Boges]

If you're in Ontario you're probably aware of the Rafferty trial. He's accused of raping and killing a 9-year old girl in 2009. His girlfriend at the time admitted to killing the girl but Mike Rafferty has been accused of murder and rape as well. The trial has been going on for weeks now.

Yesterday the Jury was sequestered so evidence that was deemed prejudicial and wasn't admitted was made public. Some of it were some very creepy google searches about child porn and rape, Also the video in the link below.

If he get off, who thinks this is a massive failure in our legal system?

http://www.newstalk1010.com/blog/raffertyevidence/blogentry.aspx?BlogEntryID=10382283

In pre-trial proceedings Justice Thomas Heeney ruled a video brought forward by the Crown as inadmissible.

It was never presented to the jury as evidence, Heeney ruled it was prejudicial to the accused.

The over four-hour long video shows Michael Rafferty being interrogated by different OPP officers, including Det. Sgt. Jim Smyth, the officer who eventually found Tori Stafford's body.

The interview took place on May 20, 2009, the day after Rafferty was arrested.

An emotional Rafferty denies having any connection to the girl's disappearance and death, and calls Terri-Lynne McClintic a "liar" when she is brought face to face with him in the interrogation room.

Edited May 11, 2012 by Boges

[Michael Hardner]

Failure in that the police weren't careful enough to specify the search warrant ? Maybe, but are you going to blame them for that ?

[guyser]

Failure in that the police weren't careful enough to specify the search warrant ? Maybe, but are you going to blame them for that ?

Exactly.

[Boges]

Apparently the judge could have admitted the evidence. A precedent has been set.

It seems a rather waste of time to send this jury in a room to decide this case with some pretty vital evidence held back.

http://fullcomment.nationalpost.com/2012/05/10/tori-stafford-michael-rafferty-evidence/

Here's a good excerpt from a Christie Blatchford column.

At one point during that argument, prosecutor Michael Carnegie snapped, “We always talk of the faith we have in the jury system [yet] we always seem to ignore it whenever we have evidentiary applications.”

If born in frustration, in his little “aria on the jury system” as he later self-mockingly called it, Mr. Carnegie nonetheless had put his finger on what is the white elephant in the sprawling criminal justice room.

It is this: Judges forever wax on about the strengths of the jury system yet routinely keep evidence — usually the very sort that to the layman would seem to be the most relevant — from them on the grounds they would misuse it or be “inflamed” by it.

To use the language of the courtroom, it’s a “reasonable inference” that this is because judges don’t wholly trust either jurors’ intelligence or judgment.

Edited May 11, 2012 by Boges

[Michael Hardner]

Why should we show them material that isn't evidence ? The problem, furthermore, is mischaracterized here. We're not ignoring it - the crown tried to bring it forward, but it was obtained improperly so the defence was able to get it removed.

[jacee]

Rafferty is charged with murder.

Evidence of child porn use. Or even child sexual abuse is not evidence of murder.

[Boges]

Rafferty is charged with murder.

Evidence of child porn use. Or even child sexual abuse is not evidence of murder.

He's also charged with Sexual assault.

[jacee]

He's also charged with Sexual assault.

You are right. The cops screwed up on the search warrant.That's a shame.

[Michael Hardner]

You are right. The cops screwed up on the search warrant.That's a shame.

I wouldn't even say that. They had a warrant to search the car, which they assumed covered the laptop in the car. It's a complex issue, so can you honestly call this error a "screw up" ? I can't.

[jacee]

I wouldn't even say that. They had a warrant to search the car, which they assumed covered the laptop in the car. It's a complex issue, so can you honestly call this error a "screw up" ? I can't.

Gee ... maybe they should have asked the judge who approved the warrant?

Because obviously they "assumed" wrong.

[Michael Hardner]

Because obviously they "assumed" wrong.

Obviously, but not every mistake should be called a "screw up". They're not lawyers, they're police. "Screw up" to me is a gross error, not an understandable one.

[Boges]

Obviously, but not every mistake should be called a "screw up". They're not lawyers, they're police. "Screw up" to me is a gross error, not an understandable one.

It's sort of like if a cop didn't give someone their Miranda Rights back when Miranda rights weren't universal.

Is a Laptop a separate place, requiring a second warrant? It's a new legal opinion that it is, but there is case law that says when the evidence is so important to the trial it can be overlooked. Should Rafferty get off I suspect the issue will be debated vigorously in legal circles.

[Guest Peeves]

I wouldn't even say that. They had a warrant to search the car, which they assumed covered the laptop in the car. It's a complex issue, so can you honestly call this error a "screw up" ? I can't.

Not actually the facts as now known.

The state of computer evidence as covered in the warrant was discussed by the police. They knew such was in a state of flux..generally covered then, but subject to pending change that would require a separate warrant. They chose to ignore the potential change and it did change indeed.

Obviously given the criticality and importance of the computer details which are totally damning, they should have gone the extra step.

They took a chance and by trial time, the judge tossed that computer evidence.

[Guest Peeves]

Exactly.

On reading the details I find the police to have performed less than meticulously given the importance of their findings AND.... that there was a question on the future legality of the warrant.

Police also know that a trial would be years down the road. They had both the time and the reason to be thorough.

With ANY question, with the time and costs entailed and the need for ALL possible evidence, they took the easy road. I'm not saying they are incompetent, just not as thorough as they should have been.

To wit;

Stripped to the core, the judge said that though the police had acted legally in getting search warrants for Mr. Rafferty’s home and car, and though they honestly believed that was sufficient to allow for a forensic examination of the hard drive, BlackBerry and laptop found therein, and though the law on such searches was then evolving, the police should have anticipated how it might change and sought another warrant to look at the devices.

In essence, Judge Heeney said, the police were good cops but bad lawyers.

As a “remedy” for what he called their carelessness, he deemed the search a violation of Mr. Rafferty’s Charter-guaranteed right against unreasonable search and seizure and threw the evidence out.

And;

But Judge Heeney found the police had been honest and acted properly and legally — except that they sent the hard drive seized from Mr. Rafferty’s house and the BlackBerry and laptop found in his car to an OPP forensic examiner without getting a secondary warrant.

The law governing computer and electronic searches was then very much in a state of flux.

There had been judicial hints that without a secondary warrant, such searches might not survive a Charter challenge, but the matter simply wasn’t settled yet.

Pam Davies for National Post

A defence witness who cannot be identified (L) recounts her version of what she saw happen to Tori Stafford as she left school on the last day she was seen alive. Michael Rafferty, the man accused of kidnapping, sexually assaulting and murdering 8-year-old Stafford, watches on the right.

When the forensic examiner asked if he needed a secondary warrant, a senior OPP officer and head of the search warrant team, Detective-Sergeant Bryan Gast, told him he didn’t. He relied on his experience, his training and on his reading of a law book, Hutchinson’s Canadian Search Warrant Manual.

In the edition Det.-Sgt. Gast had, the author warned vaguely against wide-ranging police searches and concluded, “At present, these issues remain unresolved but it is likely … [they] will be challenged as over seizure.”

Sure enough, just two months after the police had examined Mr. Rafferty’s laptop, came that first decision, a case called R v Little, which said clearly that police should seek secondary warrants before looking through computers and the like.

[capricorn]

Rafferty guilty!

[Guest Peeves]

Rafferty guilty!

.........and with no death penalty, a sentence with no chance of parole for 25 years. Maybe a shank will render the sentence moot.

[eyeball]

.........and with no death penalty, a sentence with no chance of parole for 25 years. Maybe a shank will render the sentence moot.

I wonder why no one has ever proposed an early release program for the prisoners that are encouraged to exact the vengeance that our justice system fails to deliver?

[bleeding heart]

I wonder why no one has ever proposed an early release program for the prisoners that are encouraged to exact the vengeance that our justice system fails to deliver?

I agree. They so admire the predators that they believe them to be principled agents of real justice...(it's the same folks who think that prison rape--the mean, violent and strong, preying upon the weak--is so friggin' hilarious)...that they should advocate for their release. Hell, the killers could be drafted into neighbourhood watch programs.

Edited May 12, 2012 by bleeding heart

[Signals.Cpl]

.........and with no death penalty, a sentence with no chance of parole for 25 years. Maybe a shank will render the sentence moot.

I sure hope so.

[Argus]

Why should we show them material that isn't evidence ? The problem, furthermore, is mischaracterized here. We're not ignoring it - the crown tried to bring it forward, but it was obtained improperly so the defence was able to get it removed.

Isn't evidence? Are you kidding? Of course it's evidence! The fact the judges decided to arbitrarily change the law after the evidence had been collected has no relevance. You don't get to redefine the definition of a word just become some moronic judges decided to change a law which uses that word.

[Argus]

Rafferty is charged with murder.

Evidence of child porn use. Or even child sexual abuse is not evidence of murder.

Rafferty is charged with kidnapping and raping a child. Evidence that he was researching how best to kidnap and rape a child, and that he had a fixation for raping a child is not evidence?!

[Guest Peeves]

Rafferty is charged with kidnapping and raping a child. Evidence that he was researching how best to kidnap and rape a child, and that he had a fixation for raping a child is not evidence?!

Since it turned out right, I am of the opinion the cops learned a lesson, and, sometimes a judge is quite simply wrong.

[eyeball]

Since it turned out right, I am of the opinion the cops learned a lesson, and, sometimes a judge is quite simply wrong.

I'm more of the opinion that the jurists which were picked from the general public got it right. They are responsible for the success of our legal system in this case.

At risk of causing a thread drift I think our democratic system could learn a lesson here - I'd like to see a lot of other important things being weighed and decided on by members of the general public. Perhaps jury-like citizen-assemblies would make a good alternative to referendums in the way a jury makes a good alternative to mob justice.

As for leaving everything in the hands of politicians we should no more do that than we would leave everything in the hands of the police.

Edited May 13, 2012 by eyeball

[dre]

Rafferty is charged with kidnapping and raping a child. Evidence that he was researching how best to kidnap and rape a child, and that he had a fixation for raping a child is not evidence?!

Yes that type of evidence would be admissible if it was legally obtained.

[Signals.Cpl]

I'm more of the opinion that the jurists which were picked from the general public got it right. They are responsible for the success of our legal system in this case.

At risk of causing a thread drift I think our democratic system could learn a lesson here - I'd like to see a lot of other important things being weighed and decided on by members of the general public. Perhaps jury-like citizen-assemblies would make a good alternative to referendums in the way a jury makes a good alternative to mob justice.

As for leaving everything in the hands of politicians we should no more do that than we would leave everything in the hands of the police.

Holding members of parliament to the wishes of their constituents is the solution. MPs should not vote based on their belief system, but should vote based on the wishes of their constituents.