RIGHT TO REMAIN SILENT

The change in colour of the background behind the text is merely an anomaly and nothing else. 

The right to remain silent is a legal right that is recognized, explicitly or by convention, in many of the world's legal systems. The right covers a number of issues centered on the right of the suspect to refuse to comment or provide an answer when questioned, either by the police or during legal proceedings in a court of law. This is the right to avoid self-incrimination or the right to remain silent when questioned. The right usually includes the provision that adverse comments or inferences cannot be made by the judge or jury regarding the refusal by a defendant  to answer questions before or during a trial, hearing or any other legal proceeding. This right constitutes only a small part of the defendant's rights as a whole.

I do remember one case I was watching in which the judge did make a comment about the accused not giving evidence. The trial was by judge alone. He said in part in his decision and I will paraphrase him.

“I have heard the testimony of the witnesses who testified against the accused. The accused exercised his right to remain silent during his trial. That is most unfortunate because I would like to have heard his rebuttal if there was one. He left me with the problem of making a decision based entirely on what evidence was given to me by the Crown’s (prosecutor’s) witnesses.”

He then convicted the man. The judge did not err in making that statement. He would have erred had he made it in front of the man’s jury if he had a jury which he did not because the jury might have believed that he was guilty since he didn’t want to take the stand and be cross examined by the prosecution. Normally when an accused doesn’t give evidence at his jury trial, the judge will tell the jury that the accused has the right to remain silent and that they should not interpret his silence as a sign of guilt.

In Canada, the right to silence is protected under  section 7 and section 11(c)  of the Canadian Charter of Rights and Freedoms. The accused may not be compelled as a witness against himself in criminal proceedings, and therefore only voluntary statements made to police are admissible  as evidence.  Prior to an accused being informed of their right to legal counsel, any statements they make to police are considered involuntarily compelled and are inadmissible as evidence. After being informed of the right to counsel, if the accused chooses to voluntarily answer questions, then his statements would be admissible in court.

There is no law that prohibits the police from questioning a suspect in the absence of counsel after he has retained counsel.  Police persuasion, short of denying the suspect the right to choose or of depriving him of an operating mind, does not breach the right to silence. The violation of the suspect's rights occurs only when the Crown (prosecutor) acts to subvert the suspect's constitutional right to choose not to make a statement to the authorities.

Even where a violation of the suspect's right is established, the evidence may, where appropriate, be admitted. Only if the court is satisfied that its reception would be likely to bring the administration of justice into disrepute can the evidence be rejected under section 24(2) of the Charter. Where the police have acted with due care for the suspect's rights, it is unlikely that the statements they obtain will be held inadmissible.

I remember watching a trial in 1962 where the accused stated that he was beaten by the police to get him to confess. The judge said in reply, “No doubt you deserved it.” Then he convicted the accused on the basis of his confession. Those days are now long gone fortunately.

Any evidence obtained in breach of the suspect’s right under section 7 is excluded pursuant to section 24(2)  of the Charter. Sometimes the exclusion of the confession would result in an acquittal, since virtually the only evidence against the accused was his confession to the police.

Although an accused has the right to remain silent and may not be compelled to testify against himself, if he freely chooses to take the witness box and testify, there is no further right to silence and no general restriction on what kinds of questions they may be required to answer. Section 13 of the Canadian Charter of Rights and Freedoms guarantees that witnesses may not have any incriminating evidence they gave as testimony used against them in separate proceedings. In effect, a person can be compelled to give involuntary self-incriminating evidence but only where that evidence is to be used against a third party.

As an example, the accused is testifying against another man who was also party to the crime he is suspected of having committed. He can admit that he was present when the other man shot the victim to death and that he did nothing to stop the shooting. He cannot be convicted at his own trial for that admission he gave at the other person’s trial by having his actual statement read to him during his own trial. The prosecutor would have to have present to the jury other evidence in order to convict him.

The right to remain silent, which is designed to shield an accused from the unequal power of the prosecution, arises when the coercive power of the state is brought to bear against the individual, either formally (by arrest or charge) or informally (by detention or accusation).  It is at this point that an adversary relationship comes to exist between the state and the individual. 

I have prefaced this post with the aforementioned so that you will appreciate what I am speaking about while referring to particulars of a very interesting criminal trial that I wrote about and published in my blog on May 14, 2012. It is titled, Was the judge in the child murder case right to order that some evidence should not be presented to the jury?

That post was about a man and woman who were charged and convicted of kidnapping, raping and murdering an eight-year old girl. They were both sentenced to life in prison.

The woman, Terri-Lynn McClintic confessed to the police that it was man (Michael Rafferty) who murdered the little girl but she later pleaded guilty in court at her own trial to being present during the murder of the girl and that she did nothing to stop Rafferty from murdering her. She also testified at the trial of the co-accused, Michael Rafterty who denied everything he was accused of when questioned by the police and who chose not to testify on his own behalf during his trial.

In this post, I will explain the significance of their decisions to testify and not to testify.

At Rafferty’s trial, McClintic did a complete turn around. Previous to her trial, when she was arrested by the police, she told the police that Rafferty was the one who beat the little girl to death. She was sentenced to life in prison at the end of her trial after she pleaded guilty to kidnapping, sexual assault and death of the little girl. Months later when she was called as a witness at Rafferty’s trial, she testified under oath that it was she who beat the little girl to death and not Rafferty.

She had nothing to lose by testifying against herself during Rafferty’s trial since she had already been sentenced to life in prison for her role in the kidnapping, sexual assault and murder of the little girl.

It is obviously against an accused’s best interest to confess to the police about his or her wrongdoing but in McClintic’s case, she knew that the police had evidence that she had kidnapped the girl and had bought the hammer that was used to kill her and the garbage bags to place her body in because of videos that were showing her walking with the girl on the street and her purchasing the aforementioned items. 

She could have denied that it was her that was shown in the videos as the pictures weren’t really that clear enough but in her mind, she felt that the police had sufficient evidence to charge her. During her trial, she pleaded guilty to the three crimes she was charged with. I can only presume that her lawyer told her that that was the only option to her since she had already confessed to the crimes.

Now there are times when accused persons during their trials will confess to their crimes because of a deal made between them or their lawyer and the prosecution or alternatively, when the crime isn’t too serious, In the latter instances, the judge will reduce the prison time to be served because the accused has made it possible that the victim doesn’t have to testify and also because the trial won’t waste a lot of the court’s time.

However in McClintic’s case, that largesse that normally would be offered by the judge for pleading guilty wasn’t given to her because the penalty for first degree murder is automatically life in prison with the possibility of parole after having served a minimum of 25 years in prison.  

So why then was she so willing to confess to the crimes she was charged with knowing that she would be sent to prison for a minimum of 25 years? I don’t have an answer to that question since I don’t know what was going on in her mind during the interrogation by the police.

Did she put the blame on Rafferty, her former lover for the murder and rape of the little girl out of revenge? The rumour mill in Woodstock, Ontario where they both lived then was that McClintic had heard while she was at the detention centre because of another matter, that Rafferty was dating many women and sleeping with them. The rumour was true. He had sex with at least twelve of them. Needless to say, this would have infuriated McClintic.

Another theory is that after Rafferty was first interviewed by police on the evening of May 15, 2009 about another matter, he called her up at the Genest Detention Centre and told her that he wouldn’t be visiting or phoning her for a while. Again, that was before she was interrogated on May 19^th by the police about Tori’s murder.  

During the May 19^th, police interview, McClintic first claimed to know nothing about the murder of the girl but eventually she confessed saying that she kidnapped the girl and that Rafferty assisted with the kidnapping (he had the car) and that he raped and then beat the girl to death.

On May 20^th, the police charged Michael Thomas Rafferty, 28, with first degree murder sexual assault causing bodily harm and kidnapping and Terri-Lynne McClintic, with being an accessory to murder of the little girl in addition to the abduction (kidnapping).

At McClintic’s interrogation, did she really want to come clean, or was her accusation against her former lover the wrath of a woman scorned? And three years later, what made her turn around and state at Rafferty’s trial that it was she and not Rafferty who stomped and bludgeoned the little girl to death? Was she just trying to confuse the jury? Was she afraid that her fellow prisoners would treat her as a rat for testifying against Rafferty? None of that was the initial reason.

Days after the murder of the eight-year-old, Terri-Lynne McClintic promised her lover, Rafferty who was later on trial for the little girl's death, that if they were caught, she would save him by admitting to killing the Ontario schoolgirl alone. She told Rafferty’s jury three years later. “I said I would take the fall for everything. I would say that it was all me. (I told him) that he had more to lose than I did, that he had a life, a job, there was more for him and I was just —I really had nothing.” unquote

Her statement in Rafferty’s trial probably explains why Rafferty’s lawyer might have felt that it wouldn’t be a smart thing for his client to take the stand since McClintic had admitted under oath that she had previously told Rafferty that she would take the blame for the murder of the little girl when in fact she had told the police that it was he who committed the murder.                  

The lawyer would know however that the evidence against Raffery was really quite damming with respect to the kidnapping of the girl and the raping of her and perhaps even killing her. To him, it might have been pointless for Rafferty to take the stand and to say under oath that he wasn’t involved with the kidnapping and that he didn’t rape her or kill her. 

The dried blood found in the vehicle of Michael Rafferty, who was accused of killing and sexually assaulting Victoria Stafford, almost certainly came from the eight-year-old girl. Experts from the Centre of Forensic Sciences, (where I studied forensic sciences for a school year as part of the four years I studied criminology at the University of Toronto) tested several items seized from Rafferty's home and car and later testified before London, Ontario court trial of Rafferty.

Forensic biologist Jennifer McLean said the sample collected from the rear passenger door moulding of Rafferty's 2003 Honda Civic was compared to a DNA profile created for the little victim from her parents' DNA, one of the girl’s teeth and her hair from a comb found at her home. The DNA in the stain matched the girl's profile, testified McLean, adding that the probability that the blood was not Tori's was one in 150 trillion. McLean further also testified that a mixture of blood and semen was found on the back of the front passenger seat. A DNA sample wasn’t taken from Rafferty because he wasn’t required to give it because he (like everyone else) doesn’t have to self-incriminate himself with the exception of being charged with driving while the ability to drive is impaired.

McClintic testified that Rafferty had instructed her to cut out a portion of his back seat and throw it out the window as the two drove back to Woodstock on Highway 401 after hiding the eight-year-old's body under some rocks. The portion cut from the back seat was never seen again.

McClintic previously testified that she had covered the little victim who was lying on the floor of the back seat of Rafferty’s car with a black pea coat while she was being driven to where she was raped and murdered so the girl would be hidden from view. A coat matching the description she gave was found in Rafferty's house, and testing revealed the presence of two blond hairs. The victim’s hair was blond.

Barbara Doupe, a hair and fibre expert with the Centre of Forensic Sciences said a piece of fabric was found in Rafferty's Honda Civic and it appeared to have been cut with a knife. This meant that McClintic was telling the truth when she was interrogated by the police.

After McClintic testified in Rafferty’s trial and said that it was she who committed the murder and not him, I thought that was odd considering that she said that it was she who killed the girl and not his client. But what was also odd was that after Rafferty’s lawyer heard her testimony, he said during his closing argument that McClintic was a liar.

With all of that other damming evidence being presented to the jury by the prosecutor about Rafferty’s role in the murder of the little girl, trying to rebut it would be a pointless exercise.

This is why Rafferty didn’t take the stand and deny that he had committed the three crimes he was charged with. If he had denied participating in the kidnapping and then raping and also killing the little girl, he would have come across as a bumbling liar.

He was what has been said of others—caught between a rock and a hard place. He had no wiggle room in which he could extricate himself whether he testified or not.

We will never know for sure how the jury came to the conclusion that Rafferty was the person who killed the little girl because in Canada, jury deliberations cannot be made public.

It is conceivable that they might have felt that no matter who actually stomped and struck the victim with the hammer and killed her, both of them were guilty of murder. Perhaps they both took turns killing her. But if only one of them killed her, then the other didn’t. However, if one of them killed her and the other did nothing to stop that person from murdering the girl, then in my opinion, they are both guilty. Perhaps they both decided that the girl had to be killed so that she wouldn’t tell the police that they both kidnapped her. Perhaps that is what the jury thought also. Whatever decision they made and how they arrived at it, they were legally right to conclude that although McClintic told them that she killed the little girl— Rafferty was just as guilty of first degree murder as McClintic was.  

That wasn’t the first time more than one person was convicted of first degree murder when in fact only one person was directly involved in the murder. Tooba Yahya, 42, her husband Mohammad Shafia, 58, and their eldest son, Hamed, 20, were found guilty of four counts of first-degree murder when in fact it was Hamed  Shafia who with his car, pushed the other car with the four family members inside, into the water where they drowned. The three of them were convicted equally for the deaths.

What happened to that little girl was a terrible thing. No one should be submitted to that kind of abuse. Although it is possible that both of these monsters will apply for early release after having served the first 15 years in prison, it is highly unlikely that a second jury will grant them their release. In fact it is highly probable in my mind that they will serve even more than the minimum of 25 years in prison.

However, they are entitled to time served while in custody before their trials. That means that McClintic will be eligible to apply for parole after serving 24 years. She will be 43 years of age. Rafferty was in custody three years before his trial so with time served while in custody, he will be eligible to apply for parole after serving 22 years in prison.  He will be 50 years old.

Unfortunately I will never see the day they are released because I will be 102 years of age when McClintic is eligible to apply for parole and 100 years of age when Rafferty is eligible to apply for parole. Not in my wildest dreams do I expect to live that long. Hopefully I hope they don’t either.

What I do know is that these two human monsters are going to live a very miserable life while they are in prison because inmates and staff alike are not very kind to child killers. Both will probably be placed in protective custody and in all likelihood that will mean  that they will be in their cells twenty-four hours a day and the hour they are outside their cells, they will be alone.