Michael Rafferty Trial: Was McClintic Publication Ban Worth It?

CP  |  By Posted: 05/14/2012 5:44 pm Updated: 05/15/2012 12:18 pm

LONDON, Ont. - A publication ban that prevented the public from knowing for more than seven months that Terri-Lynne McClintic had pleaded guilty to the murder of Victoria Stafford was decried at the time as a sweeping gag order.

Front-page editorials lambasted Superior Court Judge Dougald McDermid's decision to impose a temporary but total publication ban on the proceedings to protect the rights of eight-year-old Tori's other accused killer, though they couldn't say as much at the time.

A jury found Michael Rafferty guilty Friday of first-degree murder, sexual assault causing bodily harm and kidnapping in Tori's death. All of the details from McClintic's plea were heard at Rafferty's trial, mostly when she took the stand as the Crown's key witness, but the controversial publication ban only ended with Rafferty's verdicts.

Particularly in high-profile cases, the courts must balance an accused's right to a fair trial and freedom of the press. Now that the ban has been fully lifted, the details and arguments that went into it can be discussed.

Media lawyer Iain MacKinnon, who argued against the ban, said he still believes there would have been no impact on Rafferty's fair trial rights if everything about McClintic's plea was published. It all came out at Rafferty's trial anyway, he argued, so where is the harm?

"A lot of judges and Crowns and defence lawyers say ... 'It's only temporary and it's not forever and ultimately the public will know,' but that's just not good enough," MacKinnon said Monday in an interview.

Juries are instructed to judge the case before them solely on the facts and without prejudice and some publication bans call into question the faith the justice system says it has in jurors, he said.

"So does it really make a difference, and does the jury need to be coddled so much that they can't hear that information through media reports of her guilty plea a year (or two) ahead of time?" he said.

But the jury wasn't necessarily going to hear everything McClintic pleaded to, Rafferty's lawyer Dirk Derstine said. She changed her account at trial to say she was the one who physically killed Tori, and Derstine had argued to keep details of her earlier statements that Rafferty was the killer out of the trial.

"The trial's a very dynamic process," he said in an interview. "When you're making tactical decisions years ahead of the trial, it's pretty hard to say what this all would have meant at the trial."

Part of the reason it was kept from the public for so long was that even when McDermid agreed to allow partial publication, Rafferty's defence appealed it to the Supreme Court of Canada. It can take several months for the top court to decide if it will hear a case.

But it meant people were completely in the dark for more than seven months, which was "outrageous," MacKinnon said.

"For that to sit in limbo for that long to allow the defence to seek leave from the Supreme Court was just far too extreme," he said. "The problem is the appeal process has to play out. You can't really deny somebody the right to appeal."

Whether or not publication of McClintic's plea hurt Rafferty's right to a fair trial — although several jurors said during the selection process that they had never heard of the case before — is hard to know. But Derstine said it was not in his client's interests, so he had a duty to fight it.

"It's my job to sort of oppose it," he said. "It's not my job to balance it ... I'm paid to be Mr. Rafferty's advocate."

Derstine said he understands and applauds the news media for trying to preserve freedom of expression, though he does take issue with how some vilified McDermid over the decision.

"I understand the opposite argument, believe me I do," he said. "If I was a member of the media I'd be jumping up and down and trying to get it moved away."

To any observer it was clear that April 30, 2010, was no ordinary day at the courthouse in Woodstock, Ont. Having been given notice that a major development was to take place in McClintic's case that might affect the interests of the press, members of the media flocked to Woodstock and parked television trucks all down the street.

There was a heavy police presence and everyone entering the courtroom was subject to metal detectors and pat-downs, which are not normally used at the small community's old stone courthouse with a grand wooden staircase. Reporters, who are usually asked to turn off devices such as cellphones in courtrooms, were not allowed to bring them inside or use laptops or audio recorders for note taking.

An agreed statement of fact read out in court by a Crown attorney laid bare the horrifying and graphic details of what McClintic said was done to the little girl. Only a few dozen reporters, police officers, family members and lawyers were on hand that day to bear witness.

Following the plea, a barely audible statement from McClintic and victim impact statements from Tori's family, Rafferty's lawyer asked McDermid to impose a total publication ban on McClintic's plea until a verdict was rendered in Rafferty's trial.

McDermid said there was no time to hear arguments that day, asking lawyers to return May 18, and temporarily acceded to Derstine's request until he could hear both sides.

Despite the significant developments in a case that had transfixed the country, reporters were not allowed to report anything except that McClintic had been "scheduled to appear." McDermid scrawled the exact wording reporters were to use on a piece of paper. Bewildered reporters left the courthouse clutching photocopies.

Editorials slamming the decision appeared in newspapers the next day and one included a front-page photo of McDermid.

When court reconvened May 18, Derstine argued that if even the fact of McClintic's plea was released it would prejudice a future jury pool, as men rarely play subordinate roles in murders and the actions of McClintic would be "inextricably linked" with Rafferty's alleged actions well before his trial.

"It is difficult to imagine a series of crimes that would give rise to more extreme sentiments among the population," he said. "The case that comes the closest in my submission is the (Paul) Bernardo case … But the child was not as young."

MacKinnon, the media lawyer, argued that no detail of McClintic's plea should be under a publication ban, saying that having the public unaware that a person is sitting in prison for life for first-degree murder "should not occur in a free and democratic society."

The Crown suggested that only the facts pertaining to McClintic alone should be published. McDermid accepted that approach, ruling the following day that the media could essentially publish all the details of the plea except for those that referred directly or indirectly to Rafferty.

"The public has a right to know now that … there was no intention to conduct a secret hearing and a secret hearing was not held," McDermid said in his ruling on May 19, 2010. "It is also important for the public to know there was no plea bargain."

But Derstine said his client wanted to appeal that ruling to the Supreme Court, so the total publication ban was extended until the highest court's ruling on whether Rafferty could pursue that appeal.

The Supreme Court declined to hear Derstine's appeal, so on Dec. 9, 2010, media outlets could publish the facts from McClintic's plea that McDermid had allowed. Her telling of how Tori was raped and killed was not publicly reported until she testified at Rafferty's trial this year.

So was the ban worth it? Derstine said it's impossible to know.

"It's almost unable to be calculated, really," he said. "What would have occurred if this thing that did not occur had occurred?"

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  • Rodney Stafford, father of slain Victoria Stafford, speaks to the media as he arrives at the courthouse in London Ontario, Tuesday, May 15, 2012 for the sentencing hearing for Michael Rafferty, who was convicted Friday of Victoria's murder. THE CANADIAN PRESS/ Geoff Robins

  • After The Verdict

    Rodney Stafford, father of slain Victoria Stafford reacts after Michael Rafferty was found guilty on all three charges at the murder trial in London, Ontario, Friday, May 11, 2012. <br> THE CANADIAN PRESS/Dave Chidley

  • Reaction

    Rodney Stafford, father of slain Victoria Stafford holds a photo of his daughter as he speaks to the media, with his mother Doreen Graichen, sister Rebecca Nichols and brother Rob Stafford looking on, after Michael Rafferty was found guilty on all three charges at the murder trial in London, Ontario, Friday, May 11, 2012. <br> CREDIT: CP

  • Longest Day

    Rodney Stafford, father of Victoria (Tori) Stafford, holds his head in in hands late in the afternoon at the courthouse for the Michael Rafferty murder trial in London, Ont., Friday, May 11, 2012. <br> CREDIT: CP

  • Rodney Stafford, father of slain eight-year-old Woodstock girl Victoria Stafford, talks to reporters during a break in proceedings at the trial of Michael Rafferty, the accused in his daughter's murder in London, Ontario, Tuesday, May 1, 2012.THE CANADIAN PRESS/ Geoff Robins

  • The grave of Victoria (Tori) Stafford on Easter Sunday, the third anniversary of the day the eight-year-old girl vanished while walking home from school, in Woodstock, Ontario, Sunday, April, 8, 2012. (THE CANADIAN PRESS/Dave Chidley)

  • Dirk Derstein, defence lawyer for Michael Rafferty, the accused in the murder of Woodstock, Ontario schoolgirl Victoria Stafford talks briefly with reporters during a break in proceedings at the trial in London, Ontario, Tuesday, May 1, 2012. THE CANADIAN PRESS/ Geoff Robins

  • Terri-Lynn McClintic and Michael Rafferty are shown in these police handout photos released as court exhibits at Rafferty's trial in London, Ont., Wednesday, April 4, 2012. THE CANADIAN PRESS/HO

  • Michael Rafferty and Terri-Lynne McClintic embrace in this still image taken from a police handout video dated May 8, 2009. Rafferty visited McClintic twice at a detention centre, where she was taken after being arrested days after the killing of Victoria Stafford on an unrelated matter. (THE CANADIAN PRESS/HO)

  • Terri-Lynn McClintic is shown in police handout photos released as court exhibits at Michael Rafferty's trial in London, Ont., Thursday, April 5, 2012. THE CANADIAN PRESS/HO

  • Michael Rafferty is shown in a police handout photo released as court exhibits at Rafferty's trial in London, Ont., Thursday, April 5, 2012. THE CANADIAN PRESS/HO

  • Michael Rafferty's 2003 Honda Civic is shown in this court handout photo along with other exhibits. A tiny spot of dried blood on the rubber moulding of the back passenger side door on Michael Rafferty's car was found to contain DNA matching the eight-year-old girl's profile, forensic biologist Jennifer McLean testified Wednesday at Rafferty's trial. THE CANADIAN PRESS/HO

  • A butterfly earring worn by Victoria Stafford are shown in this evidence photo released Tuesday, April 3, 2012 at the trial trial of Michael Rafferty. Court has heard that she had borrowed the earrings from her mom on April 8, 2009. THE CANADIAN PRESS/HO

  • Victoria Stafford's T-shirt is shown in this evidence photo released Tuesday, April 3, 2012 at the trial trial of Michael Rafferty. THE CANADIAN PRESS/HO

  • Michael Rafferty is transported from the courthouse in the back of police cruiser in London, Ontario, Wednesday, March, 14, 2012. Rafferty is facing charges in the death of Victoria (Tori) Stafford. Court is hearing that Rafferty was "stressed out" in the days after her disappearance.(THE CANADIAN PRESS/Dave Chidley)

  • Accused Michael Rafferty is shown in court in London, Ont., Monday, March 5, 2012 in this artist's sketch. The trial of Rafferty, 31, began Monday nearly three years after Victoria Stafford disappeared outside her elementary school in Woodstock, Ont. (THE CANADIAN PRESS/Tammy Hoy)

  • Terri-Lynne McClintic, left, is transported from court for proceedings in the Michael Rafferty murder trial in London, Ontario, Friday, March, 16, 2012. Rafferty is charged with several offences including first-degree murder in the death of eight-year-old Victoria "Tori" Stafford. McClintic is already serving a life sentence after pleading guilty two years ago to first-degree murder in Tori's death. THE CANADIAN PRESS/Dave Chidley

  • Evidence letter written by Terri-Lynne McClintic in the Michael Rafferty murder trial in London, Ont., Thursday, March, 22, 2012. Rafferty has pleaded not guilty to first-degree murder, sexual assault causing bodily harm and kidnapping. McClintic has already plead guilty of first degree murder in the case. (THE CANADIAN PRESS/Dave Chidley)

  • Rodney Stafford, father of slain Victoria (Tori) Stafford walks from the courthouse during a break in the proceedings for the Michael Rafferty murder trial in London, Ontario, Thursday, March, 22, 2012. Rafferty has pleaded not guilty to first-degree murder, sexual assault causing bodily harm and kidnapping. THE CANADIAN PRESS/Dave Chidley

  • A tearful Tara McDonald, mother of slain eight-year-old Woodstock girl Victoria Stafford, receives a hug from partner James Goris during a break in proceedings at the trial for Michael Rafferty, the accused in her daughter's murder in London Ontario,Tuesday, March 13, 2012. THE CANADIAN PRESS/ Geoff Robins

  • Tara McDonald (center) mother of slain Victoria (Tori) Stafford walks from court after completing her testimony in the Michael Rafferty murder trial in London, Ontario, Wednesday, March, 7, 2012. (THE CANADIAN PRESS/Dave Chidley)

  • Terri-Lynne McClintic is transported from court for proceedings in the Michael Rafferty murder trial in London, Ontario, Friday, March, 16, 2012. (THE CANADIAN PRESS/Dave Chidley)

  • Terri-Lynne McClintic is transported from court for proceedings in the Michael Rafferty murder trial in London, Ontario, Friday, March, 16, 2012. (THE CANADIAN PRESS/Dave Chidley)

  • Terri-Lynne McClintic testifies at the Michael Rafferty murder trial in London, Ont., Tuesday, March 13, 2012. (THE CANADIAN PRESS/Tammy Hoy)

  • The Disappearance And Death Of Tori Stafford

    Victoria (Tori) Stafford, 8, disappeared while on her way home from school in Woodstock, Ont., on April 8, 2009. (Photo: An undated family handout, CP). <em>The following text is by the Huffington Post Canada, will files from CP</em>

  • For weeks, her parents, family friends and community members searched for the little girl. <em>(Photo: Cassandra Craig and Shiloh Roth hang a poster for missing Stafford, 8, on a street corner in Woodstock, Ont., on Friday April 10, 2009. THE CANADIAN PRESS/Dave Chidley)</em>

  • Meanwhile, hundreds of police searched local ponds, a landfill, and used a helicopter for aerial sweeps of Oxford County. <em>(Photo: Ontario Provincial Police officers search the Oxford County landfill site Tuesday, April 21, 2009, for clues. THE CANADIAN PRESS/Dave Chidley)</em>

  • Tori's mother, Tara McDonald, held daily press conferences as the national media descended on the town of 35,000 in southern Ontario. <em>(Photo: Tara McDonald speaks to reporters in Woodstock, Tuesday, April 21, 2009. THE CANADIAN PRESS/Dave Chidley)</em>

  • The girl's body was found three months later in a field near Mount Forest, Ont. <em>(PHOTO: Funeral home attendants load the remains of the girl into a hearse July 20, 2009. THE CANADIAN PRESS/Darren Calabrese)</em>

  • Michael Rafferty, 31, is charged with first-degree murder, sexual assault causing bodily harm and kidnapping in the death of Victoria Stafford. His trial began with jury selection in the last days of February, 2012. <em>(Photo: Rafferty leaves the courthouse in Woodstock, Ont., Feb. 7, 2011).</em>

  • Terri-Lynne McClintic, now 21, has already been convicted of first-degree murder in the girl's death. She pleaded guilty in April 2010 and was given a mandatory life sentence, with no chance of parole for 25 years. <em>(PHOTO: An undated Facebook photo of McClintic).</em>

  • McClintic's guilty plea could not be reported until December 2010 due to a sweeping publication ban imposed by Justice Dougald McDermid. The ban was partially lifed by the Supreme Court of Canada, though some details remain under the ban in order to protect Rafferty's right to a fair trial. <em>(PHOTO: Justice McDermid enters court in Woodstock, Ont., on Friday, April 30, 2010. THE CANADIAN PRESS/Geoff Robins)</em>

  • After Tori's funeral, her father, Rodney Stafford, went on a bike ride to Edmonton in her memory with Child Find Ontario, the <a href="http://www.thestar.com/news/ontario/article/1135756--the-main-players-in-the-tori-stafford-murder-case-where-are-they-now?bn=1" target="_hplink">Toronto Star reports</a>. He raised more than $25,000. He plans to attend the <a href="http://www.cbc.ca/news/canada/toronto/story/2012/02/26/stafford-murder-trial.html" target="_hplink">murder trial, telling CBC,</a> "There'll never be closure because I still wake up every morning without my daughter." <em>(PHOTO: Stafford, father of slain eight-year-old Tori Stafford, leaves court in London, Ont., on Monday, Jan. 16, 2012. THE CANADIAN PRESS/Geoff Robins)</em>

  • Rafferty's trial was moved from Woodstock to nearby London in light of publicity surrounding the girl's death. His lawyer, Dirk Derstine, suggested outside court that people should keep an open mind. "I expect that the evidence to be called will be different than what everybody is perhaps expecting," he said. <em>(PHOTO: Dirk Derstine leaves court in London, Ont., on Monday, Jan. 16, 2012. THE CANADIAN PRESS/Geoff Robins)</em>

  • OPP Detective Inspector Bill Renton was the lead investigator in the Tori Stafford murder case. He's seen here arriving at the Middlesex Court House in London, Ont., Monday, Feb. 27, 2012 on the first day of jury selection in the first degree murder trial of Michael Rafferty. <em>(PHOTO: THE CANADIAN PRESS/Mark Spowart)</em>

  • Tori Stafford seen with her older brother, Daryn Stafford, in this family handout. <em>(Dave Chidley/Canadian Press)</em>

  • Crown lawyers outside the courthouse where the Michael Rafferty trial is being held.

  • The Trial, In Photos

    Rafferty's mother spoke Monday, May 7, for the first time since her son was arrested and charged in May 2009, six weeks after Tori was killed. She placed the blame for what happened to Tori squarely on Terri-Lynne McClintic. "My son is innocent," Deborah Murphy said as she faced a wall of cameras outside the courthouse. "This could happen to any man that's walking around right now. Terri-Lynne McClintic has wrecked our lives and I just hope that justice is served and that he's free." (THE CANADIAN PRESS/Dave Chidley)

  • Tara McDonald, mother of slain eight-year-old Woodstock girl Victoria Stafford, receives a hug following the last day of evidence in the trial of Michael Rafferty, the accused in her daughter's murder, in London Ontario, Tuesday, May 1, 2012. THE CANADIAN PRESS/ Geoff Robins

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