What the jury didn't see: Bernardo comparison makes Rafferty seem to gag

Associated Press

LONDON, Ont. - The police officer leans toward the man accused of raping and murdering eight-year-old Victoria Stafford — a trembling, sniffling figure curled up under a yellow plastic sheet — and asks, "Am I sitting across the desk from Paul Bernardo here?"

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

With that question, minutes in to a nearly four-hour interrogation, Michael Rafferty covers his mouth and appears to start hyperventilating through his nose. His interrogator fetches a garbage can and encourages Rafferty to be sick.

Rafferty lurches forward, looking like he's about to vomit.

"If you're gonna be sick, fill your boots," says Det. Staff Sgt. Chris Loam. "I've seen it before, you're not going to offend me or bother me, so if you've gotta be sick, Mike, go ahead."

The jury deciding if Rafferty is guilty of abducting, sexually assaulting and killing Victoria Stafford did not see the video of his early-morning interrogation, nor the good-cop, bad-cop routine it showcases as investigators try to coax him into confessing.

With the jury deliberating, the video — originally entered at Rafferty's pre-trial — can now be released to the public.

After two "good cops" offer Rafferty the promise of a sympathetic ear, the bad cop bursts in: Ontario Provincial Police Det. Staff Sgt. Jim Smyth, who would later garner national headlines for successfully extracting a confession from sex killer Russell Williams.

By 3:30 a.m. on May 20, 2009, however, Rafferty makes it clear he's not talking to Smyth either, and keeps repeating, "We're done."

"Is that what you said to Tori before you killed her?" Smyth asks. "'We're done'?"

"Funny man," Rafferty sneers.

"Funny man — is that what you think this is, is funny, Mike?" Smyth says.

"I think you're a funny man," Rafferty answers, staring at the floor.

"I think you're a cold-blooded killer," Smyth replies.

Throughout the first part of the video, Rafferty appears submissive and weak — hunched over, frequently crying and wiping his eyes, he drinks tea with a shaky hand and speaks in a whiny, meek voice. Before long, however, his demeanour changes.

The veteran investigator interrupts his good-cop colleague by walking in, thrusting Tori's missing poster into Rafferty's hands and saying, "This is the girl you killed, all right? She's not missing anymore, she's dead."

Rafferty recoils, scoffs and puts the poster on the table, shaking his head. Smyth recounts the basic version of what Rafferty's girlfriend, Terri-Lynne McClintic, has just told police: that the little girl died at his hands, not hers. In the angry, profanity-laced exchange that follows, Smyth gives his suspect a dire warning: DNA doesn't lie.

A palpable shift in Rafferty's tone is soon apparent. "Maybe then he should have a Coke and a smile and try to talk to me later," he snaps after Smyth leaves the room.

From that point on, Rafferty is sarcastic and petulant, talking back to the investigators and chiding them for taking McClintic — a drug addict with a long youth criminal record — at her word.

"Terri, you've said, is saying that I was there. Terri is saying she was there and Terri is saying that and you're saying my car's on a video," Rafferty says. "That's not enough for me."

About 2 1/2 hours in, Smyth returns — this time with McClintic in tow. She doesn't speak, but Smyth sits her down across from Rafferty, who won't look at her, and challenges him to call McClintic a liar to her face.

"Terri's a liar," Rafferty says, staring at the wall. "I don't need to look at her."

Smyth asks Rafferty if he had stopped to think about the mounting the forensic evidence against him. A lawyer will be able to handle it, Rafferty replies.

"How does your lawyer deal with your semen on an eight-year-old's body?" Smyth asks.

"I guess a lawyer would have to deal with such things if they came up," Rafferty says.

During pre-trial hearings, Rafferty's lawyer Dirk Derstine raised several different complaints about the video.

Loam, one of the first police officers to participate in the interrogation, claimed to be writing a risk assessment report on Rafferty, and urged him to tell his story now because his credibility would only dwindle with time.

Derstine took issue with Loam's tactics, but Superior Court Judge Thomas Heeney disagreed.

Loam offered Rafferty no quid pro quo in exchange for a positive report, the judge said. Nor would anyone question the common-sense conclusion that an accused's story would be more credible shortly after arrest, rather than in response to damning evidence, he added.

Derstine also argued that the timing and conditions of the interview were oppressive, but Heeney noted that Rafferty seemed to grow more energized over the course of the video, and ignored a proffered doughnut despite complaints of hunger.

And when Derstine complained that the interrogators badgered Rafferty incessantly despite his client's many declarations that he was done talking, Heeney again sided with the Crown: Rafferty insisted he'd say no more, and yet continued to speak.

In the end, it was Heeney's fear that the frequent pronouncements of guilt by investigators would be prejudicial, coupled with the fact Rafferty said nothing incriminating, that kept the video from being seen by the jury.

Throughout the interview, Rafferty denies any involvement with Tori's abduction and murder, insisting his only mistake was getting involved with "bad people."

"I. Didn't. Do. Anything," he says, pronouncing the words slowly and deliberately, as if each is its own sentence. Loam says he knows that's not entirely true.

"That is entirely true," Rafferty replies. "I" — he emphasizes the 'I' — "didn't do anything."

In the video, he scoffs at the threat that police will find damning DNA evidence. At trial, a forensic biologist testified about a tiny spot of blood found on the rear passenger door frame of Rafferty's car.

The chance it wasn't Tori's was one in 150 trillion, she said. She also told court that a small bloodstain on the bottom of a gym bag in Rafferty's car contained DNA that almost certainly came from Rafferty and Tori.

Rafferty also tells Det. Const. Gord Johnson that he doubts his cellphone will betray his whereabouts on April 8, 2009, the day Tori vanished.

During the trial, Johnson himself proved Rafferty wrong, telling court that a call from Rafferty's phone was transmitted from the cell tower closest to the scene where Tori's body was found — evidence that eventually helped police locate Tori's remains in a nearby field.

The trial also saw surveillance video from a gas station and a Home Depot store in Guelph, where McClintic says they stopped to buy garbage bags and a hammer — the murder weapon.

During his interrogation, Rafferty tells Smyth he won't be seen on the Home Depot video because he wasn't there.

"If it happens what are you going to say?" Smyth asks. "Then are you going to say, 'Hey, you got me, I'm sorry?'"

"Hey, someone faked the video?" Rafferty suggests with a smirk.

"Do you know what a psychopath is, Mike?" Smyth says two minutes later.

"I have never met one," Rafferty replies.

"Well I just met one tonight," Smyth counters. "It's you."

The interview continues for another half hour as Rafferty suggests McClintic is lying because she is "out of options." With Smyth pressing for an alibi, he talks about what he did the week of April 8 and on April 9, and explains the many women in his life.

"Just because I'm sleazy doesn't make me what I'm being accused of," he says.

Shortly before Smyth gets up to leave the room, he leans in across the desk.

"Eight years old, Mike. Eight years old, buddy," he says.

"All she wanted to do was go home and have a little party for her friends because her mom just redecorated her room for her. That's pure evil, bud. And that's all I've seen for the last three hours, is pure evil from you."

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