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Michael Kruse Comments On End Of Defence’ Murder Case

Criminal defence lawyer Michael Kruse says the defence attorney can give the client advice whether or not to testify, but the decision is ultimately up to the client. He says the decision to have Rafferty not testify is very surprising.

Here is the transcript for the CTV interview with Michael Kruse as well as the preceeding interview related to the case.

John Vennavally-RaoWhen the trial started two months ago, Michael Rafferty’s lawyer asked the public not to jump to conclusions about his client.
Dirk DerstineThe allegations in this case are shocking and horrifying, and it would be easy to rush to judgment.
John Vennavally-RaoAs the defence got its turn to present evidence though, Lawyer Dirk Derstine made no opening statement and the accused was not called upon to testify, disappointing Tori Stafford’s father.
Rodney StaffordJust to get his account… Just to see… You know, I just wouldn’t mind some truth.
John Vennavally-RaoInstead, the defence calling a single witness: a grandmother who cannot be identified and wasn’t happy about testifying for the defence. She picked up her grandkids from Tori’s school the same afternoon Tori walked away with Rafferty’s former girlfriend, Terri-Lynne McClintic, seen wearing a white coat. McClintic has said she met Tori outside the school and chose her at random. But the witness testified she saw a woman in a white puffy coat walk into the school minutes earlier. Derstine asking, “How is it this woman caught your attention?” The witness replied, “It was a warm April day. It was unusual to see somebody with a jacket on.” The witness said she later saw the same woman looking stern-faced and walking quickly with a child who seemed to be trying to keep up. “The little girl that was with her was happy. Skipping,” said the witness. “Talking a mile a minute. I assumed the person she was talking to might have been her mother.” This is likely significant to Rafferty’s defence because his lawyer has previously suggested Tori had a connection to McClintic and was taken because of an unspecified drug debt, and that Rafferty was just a horrified spectator. The defence had no further evidence to present and so, closing arguments will begin on Friday, and the jury could begin deliberating this case, Lisa, about the middle of next week.
LisaAs soon as that, Johnny. It did seem a surprise that the defence started and stopped on the same day. But what about the fact that, in the end, Rafferty did not testify?
John Vennavally-RaoWell, some legal analysts are not so surprised. They say often the defence takes a look and sees how they think the Crown’s case went and then make the decision as to whether the accused should testify. In this case, obviously, the Crown’s key witness has changed her story and now says that she was the one who killed Tori Stafford. Throughout the proceedings today, Michael Rafferty, the accused, sat on the witness box and sat back and just looked on impassively. The bottom line is the jury are not supposed to draw any conclusions from the fact that he decided not to testify in his own defence.
LisaOkay. You’ll be back in that court on Friday, John. Thanks for this tonight from London, Ontario.
InterviewerA criminal defence attorney, Michael Kruse, joins us now from Windsor. Michael, welcome. Much has been made about Michael Rafferty not taking the stand to testify today. What role typically does the defence attorney play in the decision whether the defendant testifies or not?
Michael KruseThe role the defence attorney plays, Brad, is you really give the client advice as to whether they should take the stand or not. Ultimately, the decision is up to the client. Usually the client will listen to the attorney, but not necessarily. Sometimes they will override that whether they’re going to testify or not. But the bottom line is the attorney really has to assess the case and figure out if there’s going to be a reward from the person taking the stand, because if the person’s demeanour or credibility is going to suffer in the stand, it may make the case worse and the person will wind up convicting himself. Very difficult decision, and frankly a little surprising to me at least. I have been following the case and it seemed like the type of case, to me at least, that it might cry out for him taking the stand. But that’s just speculation. I don’t know all the facts. Obviously, watching the trial and listening to trials is the important thing. But at the end of the day, it is the defence lawyer’s advice to the client but the client’s decision.
InterviewerLast week, the Crown wrapped up its case after calling 61 witnesses and presenting nearly 200 pieces of evidence in the case against Michael Rafferty. Defence attorney Dirk Derstine called just one defence witness before wrapping up this case today, as you know. How unusual is it for the defence to have called just one defence witness?
Michael KruseI also found that a little different in the sense that I read that newspaper report and was talking with federal lawyers around the courthouse. I understand this witness testified that Ms McClintic went into the school yard and then into the classroom itself or in the school itself. That was inconsistent with her testimony. I’m not quite sure how much that adds other than creating another inconsistency. Now the problem is the defence has to address the jury first. I think they lost an advantage there and I don’t really see that that added a whole lot of reasonable doubt to their case. That decision surprised me at least. But again, I’m speculating a little bit. I don’t know the whole reasoning behind it. There was also the agreement of there being 386 pupils came out. Perhaps then they’re trying to argue that this was connected to the drug debt. It’s not coincidental that she selected the young Ms Stafford.
InterviewerAs criminal defence attorney who appears not to mind doing a little bit of speculating, I want to ask you: How difficult is the defence’s mission in this case to maintain the innocence that Michael Rafferty maintains?
Michael KruseIt’s an already difficult task here. They have to convince this jury that there’s a reasonable doubt that he wasn’t part of a concerted plan. It’s a very difficult case. The defence lawyers are going to have to really stress the presumption of innocence and burden of proof here and attack, frankly, Ms McClintic’s testimony. Her credibility, her character has been on trial. They need to continue to put her on trial here and put her as the defendant. “She’s the killer here,” according to the defence, “and I was an innocent bystander.” That’s basically their defence. “I got duped and I was along for the ride.” They really have to keep at that. It’s not an easy task though, from what I see, because we’ve seen strands and links of evidence that support her version of events. It’s a difficult task to overcome.
InterviewerYour experience might be able to tell us this. The jury is made up of nine women and only three men. How might the jury’s composition influence the decision in this case?
Michael KruseI’m not sure that the jury composition is going to influence in any way. My preference, of course, in juries is I like to have an even composition of six and six, or seven and five. But I don’t think it’s going to make a whole difference either way. There might be some thinking that because you’ve got nine women, perhaps they might be more sympathetic toward a young girl. But the judge and all the defence lawyers, and the Crown as well, are going to say, “You have to put your sympathies and prejudice aside and decide this case.” Whether you’re male or female, at the end of the day, has the Crown met its burden to prove the case beyond reasonable doubt, is the real issue.
InterviewerThe defence is going to be presenting its closing arguments on Friday. The Crown is scheduled for Monday. Criminal defence attorney Michael Kruse joining us from Windsor. Michael, thanks a lot for these insights tonight.
Michael KruseMy pleasure. Thank you, Brad.