Wednesday, June 17, 2009

Trial move likely?

The extraordinary amount of media attention paid to the Tori Stafford case will bolster any motions made by defence lawyers to change trial locations, legal experts say.

Toronto lawyer James Morton said the "continual barrage of information" from news media about the little girl's abduction and the arrests for her murder would make it "very, very difficult" to find local jurors who hadn't some opinion on the case.

"Even though courts are disinclined to grant them, this would be a particularly strong case (for a change of venue motion)," said Morton, a past president of the Ontario Bar Association.

Hal Mattson, defence lawyer for Michael Rafferty, the 28-year-old man accused of Tori's kidnap and murder, suggested in late May he may seek a change of venue, saying the city's small size would make it difficult to find 12 jurors "who didn't have an opinion before they went in."

"That's probably the underlying reason" for a change of venue motion, said Syd Usprich, a University of Western Ontario law professor. "When you get a case that has had so much publicity -- like the Tori Stafford case -- (the defence lawyer) will argue there's no way (the accused) can get a fair and unbiased jury in Woodstock.

"And he may be right."

Jeanine LeRoy, lawyer for 18-year-old Terri-Lynne McClintic, simply said it was "too early" to make a decision on a change of venue.

Usprich suggested Woodstock's relatively small city population would also bolster a change of venue motion. While it may be possible to find potential jurors in larger cities who are largely unfamiliar with a high-profile crime, that is much more unlikely in smaller centres, Usprich said.

Changes of venue motions, Morton said, are intended for higher-profile cases where the attendant notoriety makes it difficult to obtain a "free and unbiased jury." After filing the motion itself in Superior Court, the lawyer must provide evidence that a change of venue is necessary to find an unprejudiced jury through media reprints or public surveys. "(Change of venue motions) are not granted very freely," Morton said. "Courts don't like to move trials. It's better for the trial to be held in the place where (the crime) happened so the community can be there."

If a change of motion venue is granted, Morton said the trial -- because of the associated costs and potential inconvenience to witnesses -- would likely be as close to Woodstock as possible while ensuring unbiased proceedings. Because of the case's media profile in London, Morton guessed that any potential motion would look to some other jurisdiction.

"If I was the lawyer, I'd be trying to move the trial to Windsor, Kitchener-Waterloo or Hamilton," he said. "They're far enough away that you can almost certainly find a jury panel that doesn't have strong preconceptions."

But Morton suggested defence lawyers might forgo change of venue motions and take their chances with local jurors if the Crown's cases are unconvincing. If the case against Rafferty is largely based on statements made by McClintic that aren't corroborated by physical evidence, Morton suggested Mattson might choose a Woodstock trial for his client. Because McClintic is also accused of Tori's kidnap and murder, Morton characterized her as an "unsavoury witness" whose testimony would be suspect without "evidence that points to her being truthful."

"Maybe a local jury is the right jury (in Rafferty's case)," Morton said. "They might be angry at this terrible crime ... (but) let them look at the evidence."

Any contemplated change of venue motion would not be filed until after the preliminary hearings, which determines if the Crown has enough evidence to go to trial. Last week, Mattson indicated that his client's preliminary hearing likely wouldn't be scheduled until early 2010. McClintic is next scheduled in court on June 23 while Rafferty is expected to appear by video on July 17.

Tori Stafford, 8, disappeared April 8. Her body has not been found.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

1 comment:

Anonymous said...

If lawyers make an argument for a change of venue based on trying to find jurors who have no knowledge of the case I would suggest having the trial in Mexico. I mean, there are "trials by internet" going on all ever North America. Mattson would need to disqualify all of southern Ontario! The undercurrent of the hunt for the child's remains is huge. And the former butcher, male accused Rafferty, bounced all over southern Ontario for years.
Kitchener by the way is 20 minutes from Guelph; It's ridiculous to think there are people in Kitchener who haven't formed an opinion of this case. I'm hooked up with a group of people who go searching for little Tori on their days off work. We are online networking every detail of this case and we are from all over North America.

On the other hand, jury selection could be made very simple: a fine jury could be culled from Fergus farmers in Wellington County--all of whom were asked to hold off plowing/sowing their fields this May as rumors of dismemberment and evil tainted the springtime: trial the old-fashioned way--by pitchfork to purge the evil from the land.

On a side note, do counsels for defence bother checking the online social networking profiles of their clients? Mattson ensured his client's incriminating profiles were removed immediately. LeRoy, on the other hand is not doing her job very well, her clients very incriminating "Tagged" profile is still in the public domain.

But that's okay, all of them have already been flagged to the OPP tip line. Mattson moved too slow in that respect and LeRoy isn't moving at all on the same ...

Still, it leads me to believe the female accused will take the fall simply because the two defence lawyers seem to be not well matched.