05-11-2012, 09:37 AM
Just some snippets from Christie Blatchford's article.....
National Post - After pre-trial arguments held two months before the jurors were even selected, Judge Heeney had kicked out a great swath of powerful evidence of Mr. Rafferty’s sexual interest in children.
The 31-year-old is pleading not guilty to kidnapping, sexual assault causing bodily harm and first-degree murder in the April 8, 2009, slaying of the little Woodstock, Ont., girl named Victoria (Tori) Stafford.
In a decision released Jan. 31, the judge ruled the jurors would never hear that forensic examination of Mr. Rafferty’s laptop revealed that in the months leading up to the eight-year-old’s slaying, he had done Google searches for “underage rape,” “real underage rape” and “best program to download child porn,” or that he had recently possessed substantial amounts of child pornography, including videos depicting “how-to instructions for child sexual assault” and others with what prosecutors called “a disturbing instructional purpose” and even several “snuff” films.
And in a decision made during the trial, when prosecutors tried to persuade the judge that the landscape had changed and he should re-consider his decision at least so far as the Google evidence was concerned, Judge Heeney again refused.
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.
‘Judges so often exclude evidence the “What-the-jurors-didn’t-hear” story is now a staple’
The triers of the facts, which is the role jurors play at trial, often don’t have before them some of the most critical facts; things are kept from them, and the vaunted truth-seeking function of the trial is thus distorted if not outright foiled.
It raises the question of why, when the system doesn’t trust the triers of the facts, it even bothers with jury trials and doesn’t move to trial by judge alone, as happens in some parts of the world.
Still, even given all this — that judges so often exclude evidence the “What-the-jurors-didn’t-hear” story is now a staple of courtroom reporting — Judge Heeney’s reasons were surely curious.
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.
As well as the Google searches, also found on the laptop were download artifacts “indicative of the recent possession of known child pornography imagery” and two Hollywood movies dramatizing either child kidnapping (Gardens of the Night, which was downloaded just 12 days before Tori disappeared) or child sex killing (the 2006 film Karla, a fictional version of the Karla Homolka/Paul Bernardo sexual assaults and murders of three girls).
Also
In pre-trial arguments, Mr. Rafferty’s lawyer, Dirk Derstine, challenged almost everything about the search in trying to get the evidence tossed.
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.
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.
Still, though the judge in that case found there was a Charter breach, she admitted the evidence.
Even Randy Schwartz, the prosecutor who argued this issue for the Crown, had to acknowledge that according to the current state of the law, there had been a technical violation of Mr. Rafferty’s Charter rights.
But he fought vigorously to have the evidence admitted anyway, just as the judge in the Little case had done.
Kicking it out, Mr. Schwartz told Judge Heeney, “would deprive the jury of the tools it needs . that’s what you would be doing if you were to exclude this evidence.”
But, while admitting that “at the time of the search, no binding authority indicated that the police were obligated to obtain a [separate] search warrant” to examine the laptop, Judge Heeney nonetheless found that Det.-Sgt. Gast took “the risk” the law might change.
This whole faulty search warrant really bothers me, the law was in flux at the time, the decision to not allow it was based on the fact the law could change? Am I interupting this right? LC, any thoughts on this, I know laws are different in the states, this seems incredulous to me?
National Post - After pre-trial arguments held two months before the jurors were even selected, Judge Heeney had kicked out a great swath of powerful evidence of Mr. Rafferty’s sexual interest in children.
The 31-year-old is pleading not guilty to kidnapping, sexual assault causing bodily harm and first-degree murder in the April 8, 2009, slaying of the little Woodstock, Ont., girl named Victoria (Tori) Stafford.
In a decision released Jan. 31, the judge ruled the jurors would never hear that forensic examination of Mr. Rafferty’s laptop revealed that in the months leading up to the eight-year-old’s slaying, he had done Google searches for “underage rape,” “real underage rape” and “best program to download child porn,” or that he had recently possessed substantial amounts of child pornography, including videos depicting “how-to instructions for child sexual assault” and others with what prosecutors called “a disturbing instructional purpose” and even several “snuff” films.
And in a decision made during the trial, when prosecutors tried to persuade the judge that the landscape had changed and he should re-consider his decision at least so far as the Google evidence was concerned, Judge Heeney again refused.
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.
‘Judges so often exclude evidence the “What-the-jurors-didn’t-hear” story is now a staple’
The triers of the facts, which is the role jurors play at trial, often don’t have before them some of the most critical facts; things are kept from them, and the vaunted truth-seeking function of the trial is thus distorted if not outright foiled.
It raises the question of why, when the system doesn’t trust the triers of the facts, it even bothers with jury trials and doesn’t move to trial by judge alone, as happens in some parts of the world.
Still, even given all this — that judges so often exclude evidence the “What-the-jurors-didn’t-hear” story is now a staple of courtroom reporting — Judge Heeney’s reasons were surely curious.
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.
As well as the Google searches, also found on the laptop were download artifacts “indicative of the recent possession of known child pornography imagery” and two Hollywood movies dramatizing either child kidnapping (Gardens of the Night, which was downloaded just 12 days before Tori disappeared) or child sex killing (the 2006 film Karla, a fictional version of the Karla Homolka/Paul Bernardo sexual assaults and murders of three girls).
Also
In pre-trial arguments, Mr. Rafferty’s lawyer, Dirk Derstine, challenged almost everything about the search in trying to get the evidence tossed.
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.
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.
Still, though the judge in that case found there was a Charter breach, she admitted the evidence.
Even Randy Schwartz, the prosecutor who argued this issue for the Crown, had to acknowledge that according to the current state of the law, there had been a technical violation of Mr. Rafferty’s Charter rights.
But he fought vigorously to have the evidence admitted anyway, just as the judge in the Little case had done.
Kicking it out, Mr. Schwartz told Judge Heeney, “would deprive the jury of the tools it needs . that’s what you would be doing if you were to exclude this evidence.”
But, while admitting that “at the time of the search, no binding authority indicated that the police were obligated to obtain a [separate] search warrant” to examine the laptop, Judge Heeney nonetheless found that Det.-Sgt. Gast took “the risk” the law might change.
This whole faulty search warrant really bothers me, the law was in flux at the time, the decision to not allow it was based on the fact the law could change? Am I interupting this right? LC, any thoughts on this, I know laws are different in the states, this seems incredulous to me?
The only reason people get lost in thought is because it's unfamiliar territory.