I’m guilty, she pleads.
I’m not guilty, he has pleaded.
When the jury left here Friday for an extended weekend off, they could be forgiven for being utterly discombobulated.
PHOTOS: Tori Stafford murder trial
Seven times they’d been up and down, in and out, on Day 8 in the trial of Michael Rafferty, charged with kidnapping, sexual assault and first-degree murder in the death of 8-year-old Victoria (Tori) Stafford. Complex legal arguments were heard in their absence. Narrow instructions were delivered by Superior Court Justice Thomas Heeney in their presence.
By the end of the afternoon, in this uncomfortably warm courtroom, everybody was visibly flagging.
But one key piece of business had been accomplished: The jury of nine women and three men watched five segments from the videotaped “confession’’ that Terri-Lynne McClintic gave OPP Det. Sgt. James Smyth on May 24, 2009.
This was the interview in which the then-teenager explicitly blamed Rafferty for killing Tori, identifying her boyfriend as the wielder of lethal hammer blows and the vicious kicker of a defenceless child’s body.
But McClintic — who pleaded guilty to murder in the first-degree at her own trial in April, 2010, and has been summoned here from her life behind bars prison sentence as key prosecution witness against Rafferty — this week turned that crucial description of a ghastly crime on its head.
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He raped her.
She killed her.
That’s what McClintic says now; is adamant about it. That’s not what she said in a tear-sodden interrogation three years ago.
The interview, as Heeney explained to the jury before releasing them until Wednesday, is not evidence at this trial, in the sense that it can’t be used to determine guilt against Rafferty, only for the purpose of assessing McClintic’s credibility. What McClintic says now, in this courtroom, is the evidence at this trial.
“I told them that basically he had committed the murder … and that he knew what he was doing when he did it,” McClintic told Crown Attorney Kevin Gowdey from the witness stand on Friday.
Gowdey: “You said he kicked her first?”
Yes, she had.
Gowdey: “You said he used the hammer to hit her head?”
Yes, she had.
Gowdey: “You said he’d put garbage bags over the top of her head?”
Yes, she had.
Gowdey: “And was that not true?”
McClintic: “It was true but it wasn’t him that did it. It was me.”
This could be a conundrum for the prosecution. McClintic had yet again fingered herself as a liar. Yet she’s the Crown’s witness and the only eyewitness, apparently, who can testify to Rafferty abducting Tori (McClintic the procuring accomplice) and sexually assaulting the youngster before, together, they buried the child beneath a pile of rocks at the end of a lonely country road outside Guelph on April 8, 2009. McClintic’s credibility is of immense importance.
The witness maintains she was lying then, is telling the truth now.
Patiently, Gowdey asked: “At what point during this interview did you decide to implicate Mr. Rafferty for using the hammer and killing Victoria Stafford?”
McClintic: “I’m not really sure. I don’t know to tell you the truth.”
To tell you the truth …
“I don’t know when I came to the decision that I was going to implicate him. I just couldn’t believe that it was me who was capable of doing that.”
Earlier in the day, during the morning session, both witness and jury were brought into the courtroom, McClintic given an abbreviated transcript of her interview with Smyth and allowed time to review it. A half-hour later, when court reassembled, Gowdey put the core question: “After reviewing your statement, do you wish to change your evidence from earlier this week?’’
More lawyerly discussion, with the jury out, and then the interview excerpts were finally played.
The first segment began with McClintic blowing her nose. She is in the midst of recounting sordid events from the afternoon of Tori’s abduction, after the couple had brought the child to a desolate location. McClintic had purportedly walked away from the vehicle in which Rafferty allegedly had just raped Tori.
“I seen Tori on the ground … I could hear her … I turned my head away again (but) I could hear her, like (the) sound of her voice, like, moaning. I remember hearing the rustle of garbage bags.”
Earlier this week, McClintic testified that she was the one who put a garbage bag over Tori’s head after the alleged rape, that she then kicked the child and finally rained hammer blows on the youngster’s head.
In the next clip, McClintic tells Smyth she saw Rafferty kicking Tori “a couple of times” and right afterwards strike her “two or three times” with the hammer that she, McClintic, had bought just two hours earlier at a Guelph Home Depot, on instructions from Rafferty.
“He knew what he was doing,” says McClintic on the tape. “There was no, like, blood splatter.”
On the following excerpt, McClintic provides Smyth with more detail about the killing episode. “I remember … her legs were kind of like, not sprawled, just … similar to the fetal position. She was still moving. I could hear moaning …”
She saw blood in the child’s groin area but there were no wounds visible, apart from the hammer wreckage underneath the bag over Tori’s head. Rafferty, McClintic tells Smyth, ordered her to help cover Tori’s entire body with garbage bags at that point. “I felt like I was f---g retarded, like I didn’t know what I was doing that day.”
In the courtroom, Gowdey wonders why McClintic had chosen, in the interview, to make these allegedly false statements about Rafferty. As McClintic agreed, she did not know, at that time, what evidence police had against either her or Rafferty.
“Why then were you choosing to tell police that Mr. Rafferty had killed Tori?” the prosecuted probed.
“Rather than admit it was myself, is that what you’re asking? Because I could not accept that I was capable of committing something so heinous. He was the one who wanted to kidnap a child. He was the one who raped that child.
“I’m not somebody who targets children and I don’t understand what happened that day.”
After Tori had stopped moaning, gone silent, appeared dead, McClintic said she was “stunned” by what she now claims to have done to the child. Immediately, she testified, the couple set about clumsily hiding the body.
“He told me I needed to help. I was in it just as far as he was then.”
To justify her allegedly false implication of Rafferty as murderer in the interview, McClintic told Gowdey: “It was something that came up in my mind, all the things that I had ignored, (the) central risk factors, things that, if I didn’t say something, this was a man who could do something like this again to another child.”
On the tape, McClintic says she grabbed hold of Tori’s feet while Rafferty lifted her upper body. Together, they walked towards a tree and “tossed her on top of the rock pile.”
Gowdey, who’s given the witness numerous opportunities to recant her recantation, tries again.
“Your version now is that it wasn’t Mr. Rafferty who hit her in the head with a hammer. Are you still insisting that your evidence earlier this week was correct, that it was you with the hammer, that it was you who kicked her?”
It is for the jury to take the measure of this witness.