05/11/2012 04:00 EDT | Updated 05/11/2012 09:12 EDT

Michael Rafferty Trial: McClintic Testimony Problematic For Crown


LONDON, Ont. - Of the myriad problems Terri-Lynne McClintic presented for the Crown lawyers at Michael Rafferty's murder trial, one stood out above all others: how do you call your star witness a liar?

WARNING: Graphic details from this court case may disturb some readers.

On the witness stand, McClintic told a disturbing tale of how — egged on by Rafferty — she kidnapped Victoria Stafford outside her school in Woodstock, Ont., before driving to a secluded rural spot where Rafferty raped the eight-year-old girl.

That was all true, the Crown asserted. Many of the details in her story were independently verified. But when it came down to declaring who was responsible for inflicting the blows that killed Tori, that was a different matter.

At first McClintic said it was Rafferty. Now she says it was her. But there are several differences in the two versions of events — some significant, others less so — which led the judge to conclude it's much more likely her original story is the truth.

In determining how to present that to the jury, the lawyers took several days to argue various legal motions without the jury present. The many iterations of McClintic's version of the events of April 8, 2009, were put on display.

When she was interviewed by police on April 12, McClintic said she had been in the area of Tori's school that day, but was not the woman in a white coat who was seen on surveillance video walking away with the little girl. A month later, she said the same thing.

But on May 19 — after taking a lie detector test she believes she failed, but didn't — McClintic's original version of events began to take shape. She admitted to being the woman in the surveillance video, but was vague about the killing. She walked away from Rafferty's car during the rape, she said, and when she came back, Tori was gone.

Her full confession came May 24 in a weepy, six-hour interview. She described seeing Tori lying partially clothed on the ground before Rafferty put a garbage bag over the girl's head and kicked and stomped her. Eventually, she said, he hit the girl with a hammer.

McClintic goes into even more graphic detail in a 17-page letter she wrote in October, saying she recalled more about April 8 after temporarily going off medication for bipolar disorder.

Some of the details are mundane, such as how her sunglasses nearly fell off her head while reaching for a garbage bag.

Others are horrifying: During the kicking and stomping, she recalled, Rafferty shouted, "Holy (expletive), why won't you die?"

The letter, along with McClintic's May 24 confession, formed the basis for the agreed statement of facts read out in court when she pleaded guilty to first-degree murder in April 2010.

"Most of the people supporting me have said that I'm insane for pleading guilty to murder when I didn't inflict death on anyone," she said at the time.

"My actions are what put that child into the hands of death."

Between the plea and Rafferty's trial, which started with pre-trial motions on Jan. 16, 2012, police and the Crown worked hard to assemble their case against Rafferty. Two days before the motions were to begin, McClintic threw a wrench into their plans.

It was her, not Rafferty, who killed the little girl, she told a counsellor. She no longer wanted to testify at the trial. She offered police no details, saying, "the only thing that changes is that it was me and not him."

"Same way I told you before," McClintic said. "A hammer.... All you need to know is he's not guilty and he didn't have anything to do with killing her."

Why, police wondered, would you tell the counsellor this now?

"I don't know, just things have been playing on my mind a lot and she kept poking at me asking me what, what, well what are you thinking about?" McClintic said.

"I was on a bunch of my medication and I guess it just came out."

Rafferty's defence suggests that not only was McClintic the actual killer, she engineered the kidnapping over a drug debt, and that she offered Tori to Rafferty sexually, but he declined.

Rafferty has pleaded not guilty to first-degree murder, sexual assault causing bodily harm and kidnapping.

When McClintic testified at Rafferty's trial, the details of the killing that she described on May 24, 2009, were back in the story. This time, however, she was the killer, not her boyfriend.

The Crown wanted to be able to play a relevant portion of McClintic's May 24 statement for the jury, so they could see and hear her tearful confession for themselves. Anything short of that, Crown attorney Michael Carnegie argued, would be "gutting the Crown theory."

The Crown wanted to "impeach the credibility" of its own witness, as the judge put it. Essentially, the Crown had to apply to be able to cross-examine their own witness and suggest her current version of events was not entirely true.

Eventually, Superior Court Judge Thomas Heeney ruled there was "simply no question" McClintic's new assertion about who killed Tori was "inconsistent in a very major and dramatic sense, going to the very core of her evidence."

Excerpts of the May 24 interview were played for the jury, though they were told initially that they could only use it to assess McClintic's credibility.

McClintic explained that she previously blamed the death on Rafferty because she wasn't mentally ready to accept that she had killed a child. She had genuinely believed it had been him, she said.

During his cross-examination of McClintic, Crown lawyer Kevin Gowdey noted that she'd originally told police she didn't know how often Tori had been struck because she closed her eyes and turned away during the killing.

If her new version of events was true, she ought to know how many blows were delivered, Gowdey argued.

"So your efforts to implicate Mr. Rafferty were thought through so carefully that you would make up a story that wouldn't even have the exact number of blows?" Gowdey asked. "Is that what you're saying?"

"I guess so," McClintic replied.

Without the May 24 video as evidence, the Crown would be hamstrung in its ability to present a theory that Rafferty physically killed Tori, Carnegie later argued.

Carnegie suggested that another, seemingly minor, difference between McClintic's May 24 statement and her testimony at trial speaks volumes about the credibility of one story versus the other.

Clear bottle caps, like the ones on water bottles found in Rafferty's car upon arrest, were in the garbage bag containing Tori's remains. When she testified, McClintic said Rafferty washed himself after Tori's remains had been buried under a pile of rocks.

The only way the bottle caps could end up inside the bag, however, would be if Rafferty cleaned himself off after the sexual assault, but before Tori's body was hidden, Carnegie said — a scenario consistent with McClintic's original version of events.

In order for Heeney 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.

"This is not a situation where she was merely pointing the finger at the accused as the perpetrator," Heeney said.

"She provided enough information against herself in the May 24th 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.

In her new statement to police, she implies that if she is forced to testify, they might not like what she would have to say, Heeney noted. McClintic also testified that she once told Rafferty she would take the fall for him, he added.

"One could draw the inference that making the statement on Jan. 14, 2012, was the fulfillment of that promise," Heeney said.

Heeney decided to let the jury see the May 24 statement as evidence, and leave it to jurors to assess both versions of McClintic's story.

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