LONDON, Ont. – As the first-degree murder trial of Michael Rafferty winds to a close, it remains unclear whether the man accused of raping and killing eight-year-old Tori Stafford will take the stand in his own defence.
Lawyers who make a living defending accused are split on when, why and if ever their clients should testify.
"It’s not a science. It’s an art form," criminal lawyer Michael Kruse said.
Several factors go into the decision, said Kruse, but one of the most important is how strong a case the Crown has made against an accused.
"In doing that, I would ask, ‘Does testifying increase our chances of winning or not?’ It is a risk/reward analysis."
A strong Crown case can make it more tempting to call the accused to testify, Kruse said. The accused is the only one who can testify as to their intent or their state of mind during a crime.
"In most cases, the jury wants to hear from the accused. If the accused is not called, jurors are left wondering why you didn’t call him,” he said.
A weak case makes it less important to call the accused, Kruse noted.
Neither the Crown nor judge can make mention of the accused’s decision not to testify, however, and sometimes honest people — especially if not properly prepared — do poorly on the stand.
A defence lawyer has to judge whether a client has the proper demeanour to do well on the stand.
"It is a difficult balancing act. There is a certain way you want your client to come across. Some people telling the truth do not come across well."
Often, those with a true story to tell will interrupt or become argumentative with a Crown, exactly what prosecutors want, Kruse said.
By calling any witness, the defence loses the right to give closing arguments after the Crown. Some defence lawyers think it’s important to have the last word.
"It gives you a chance to address what the Crown has said (in their closing)," Kruse said. "It’s not an overriding concern to me, but it is important."
Rafferty, 31, has pleaded not guilty to first-degree murder, kidnapping and sexual assault causing bodily harm in the April 8, 2009 disappearance of Tori Stafford.
The eight-year-old Woodstock, Ont., girl was lured away after school by a woman later identified as Terri-Lynne McClintic, one of Rafferty’s ex-girlfriends.
McClintic, 21, pleaded guilty to first-degree murder in April 2010 and testified against Rafferty at his trial. She spent six days on the stand, first giving a detailed and at times emotional description of the abduction, then defending herself against an intense cross-examination by Rafferty’s lawyer Dirk Derstine.
Derstine suggested McClintic was the driving force behind the abduction, offered Tori as a sexual gift for Rafferty and then killed the girl after his client refused.
McClintic denied the allegations.
Tori’s disappearance captivated the country and even some veteran police officers lost their composure on the stand during the trial.
Tori’s teacher, Jennifer Griffin-Murrell, prompted tears throughout the courtroom as she described saying goodbye for the last time to the cheery and charming little girl.
The Crown opened its case March 5 and finished April 27, calling 61 witnesses and filing 185 exhibits.