Until You Are Dead (updated)

by Julian Sher

  It was the first of several disappointments for the Truscotts. They prepared themselves for the next hurdle, a preliminary hearing scheduled for July 13 to decide if there was enough evidence to go to a full trial. In the meantime, the family filed an appeal in the Superior Court to get Holmes’s ruling reversed. The court acknowledged that “public sentiment may have been aroused” by Lynne’s slaying, and the subsequent “publicity and strain” would be hard on the boy in adult court. But, the judge concluded, “such a serious charge” should be heard in an open trial before a jury.

  It was a difficult trade-off. In juvenile court, Steven would be afforded anonymity. For a shocked and grieving community, on the other hand, justice must not only be done, it was also necessary it be seen to be done in an open court.

  There was much more at stake, however, than principles. If Steven was found guilty as a juvenile, he faced only a few years in jail. But now, Steven Truscott, fourteen years old, would be tried as an adult murderer.

  If found guilty, he would face the hangman’s noose.

  14

  THE HANGING TREE

  By July 13, the day his preliminary opened, Steven had spent thirty days in jail. Three reports from Graham to his superiors on the progress of his investigation are on file from that period—June 19, July 6 and July 16—presumably representing the best police intelligence at the time. One report talked about an estimate for the time of death, but it noted that tests “to determine the actual food contents of the stomach … have not yet been concluded.”

  There was “no sperm in the vagina,” Graham reported, but he took solace from the fact that “it is believed until a male is mature, no semen is found.” (By trial, the prosecution would dramatically change its tune about Steve’s sexual maturity.) The final report, just days before the preliminary began, noted that sperm was found on the underwear seized from Steven on the Saturday after his arrest and “fixed stains” on the knees of his red jeans. The stains would turn out to be grass, the sperm of indeterminate age.

  In all of Graham’s reports, there was no mention of Jocelyne’s tale of a secret date or Butch’s claim of a plot to lie to the police. “A brief containing statements of all witnesses is being prepared for Crown attorney Hays,” Graham said.

  It was remarkable how incomplete Graham’s case still was—a full month after Steve had been incarcerated.

  “BOY SEEMS SO CALM AND NORMAL, BUT IS HE SAVAGE MURDERER?” read the four-column headline in the Toronto Telegram when Steven’s preliminary hearing began. “Was it possible that this fourteen-year-old boy in the prisoner’s dock, looking so average, so typical of boys his age, could have committed a brutal murder?” asked reporter Allan Kent, in language more colourful than most of the dry courtroom accounts of the time.

  “The boy sat there alone, almost expressionless, just a little shy perhaps, as the ponderous machinery of the court moved forward,” Kent reported. “The boy’s face, rather pale, somewhat pimpled, showed no horror, no surprise, nothing at all as the police evidence was given.” This was the first, but far from the last time that Steven’s demeanour would raise eyebrows. As is usually the case, behaviour is in the eye of the beholder. Contrary to Kent’s picture of an unresponsive boy, another reporter wrote of Steven, “He listened with rapt attention to every bit of evidence during the two-day preliminary hearing.”

  Everyone listened with attention when Magistrate Dudley Holmes—the same judge who had bumped Steven’s case from juvenile to adult court—called the hearing into session. His first move was to order the courtroom cleared of children, who had come to testify or to watch. His words were a taste of the high drama to come: “Some of the children here are much too young to be in court listening to details that are shocking enough to adults,” he warned.

  The purpose of a preliminary hearing is to allow the court to decide if there is enough evidence to proceed to trial. But it is also a sort of dress rehearsal where the prosecution has a chance to try out some of its performers and the defence gets to size up the act. Without the benefit of disclosure laws that defence lawyers have today, Frank Donnelly had to rely on the preliminary hearing to glean as much as possible about what Crown prosecutor Glenn Hays and Inspector Harold Graham had against his client.

  To set the stage, Hays had Lynne’s parents testify briefly about their slain daughter. Leslie Harper’s testimony was notable for two details that would change by the time the trial began.

  Lynne’s father told the preliminary hearing that when he arrived at the Truscott home the morning after Lynne went missing, Steve told him in a matter-of-fact manner that he had given his daughter a ride down to the highway.

  “Did he appear normal at that time?” Donnelly asked Harper.

  “I wasn’t concerned about Steven’s condition at that time,” was the noncommittal reply.

  “I take it you didn’t notice anything about it,” the defence pursued.

  “No, he was very straight in his reply,” Lynne’s father confirmed. At trial, Harper altered his description of Steve ever so slightly. “He had the answer at the ready,” he told jurors, implying a well-planned lie.

  Donnelly also asked Harper about the locket found along the road, several hundred feet from the crime scene. “Do you recognize that locket positively or otherwise?” he asked.

  “Yes, that is the locket that Lynne was in possession of,” her father said, without hesitation. The magistrate asked him again if the locket and chain entered as Exhibit 7 belonged to Lynne. “Yes sir, that is right,” her father reaffirmed. He would adjust his opinion in two months’ time.

  Cpl. John Erskine was the prosecution’s first important expert witness at the preliminary, as he would be in the trial. The young corporal appeared reluctant to go out of his way to help the prosecution.

  Erskine described the photographs he had taken of the crime scene. The marks in the earth next to Lynne’s feet were “quite broken down from weeds, twigs, breakdown of earth,” he said.

  “Was there any imprint in it that you could find?” defence counsel Frank Donnelly asked when it was his turn to question the OPP expert.

  “There was an imprint in it which appeared to be a heel, but I cannot properly say,” was as far as Erskine was willing to go.

  “Was it so indistinct that it could not be accurately measured?”

  “That is correct, sir.”

  “It was so indistinct that it would be impracticable to make a comparison with the shoe? Is that a fact?”

  “That is correct, sir.”

  “Was there any mark in this area near the right foot that could be compared with any object which might help in the investigation of this matter?”

  “No sir.”

  Erskine could not have been more helpful to the defence. The marks next to Lynne’s left foot were even more nondescript: a “quite shallow” depression less than a quarter-inch deep that was “very badly broken down.” Erskine’s blunt verdict: “Just an indistinct mark which I couldn’t get a proper measurement on.”

  The prosecution knew they had to come up with something a lot better to prove Steven was in the bush with Lynne. By the trial date in September the police dutifully obliged with a surprise witness who spotted real footprints where Erskine had seen only indistinct marks.

  Constable Donald Hobbs, the officer who first questioned Steve in the days after Lynne’s disappearance, was also helpful to the defence in his descriptions of the accused boy.

  “He appeared calm,” Hobbs recalled.

  “Co-operative?” defence attorney Donnelly asked.

  “Yes, he was co-operative,” the officer said. “He answered my questions.”

  “Answered them freely?”

  “Yes sir.”

  “There was a lot of hesitation?”

  “No, far from it. He was most definite. He answered right away.”

  Hardly the portrait of a scared or shrewd boy trying to cover up a murder. Hobbs was also clear on one other matter: he did not see
“any marks or scratches” on the boy who had been sitting just a few inches away from him during the questioning.

  “If there had been any visible marks or scratches on his face or hands or arms, you would have noticed them, wouldn’t you?” Donnelly asked.

  “On his face or hands, I would have, yes sir.”

  Donnelly also secured an important concession from Cpl. Hank Sayeau, the OPP’s point man in charge of evidence. He was one of the first officers to arrive at the bush on Thursday afternoon, and he quickly took charge of securing the crime scene.

  Donnelly queried Sayeau about the bicycle tire marks found in the laneway. “Had they been made recently?” Donnelly asked.

  “No sir, not the ones I saw,” the officer responded quickly and definitively. “I would say quite a time before, when the ground was soft.”

  “And the photograph showed that the ground was quite dry because there were big cracks where the ground was opened up.”

  “Yes.”

  “So that they certainly would be made before the 9th of June, wouldn’t they?”

  “Yes sir.”

  The OPP’s second most senior officer on the case was confirming that bike tracks which supposedly could prove Steven was near the bush were “certainly” made before the murder even occurred. It was a story Sayeau would have to change by the time he presented testimony in front of a jury.

  Hobbled by the frank testimony of the police officers, prosecutor Glenn Hays tried to score some points with the dark stains found on the red jeans Steven was wearing. Blood perhaps, or earth from the crime scene? But Elgin Brown, the biologist from the attorney general’s laboratory who tested the clothing, offered Hays little good news.

  “The staining in the knees, while appearing dark in colour, contain chlorophyll—that is, green staining pigment in plants and leaves,” the scientist said. “And although they appear dark … the green appears dark when rubbed into this fabric.” In other words, ordinary grass stains on the jeans of a teenage boy.

  Brown also noted that Steven’s shoes “appeared clean—generally free of soil.” Corporal Sayeau, who had seized the shoes as evidence under a search warrant, said that he thought Steve’s shoes were washed because of “the lack of staining” and the fading of the canvas. The biologist was less convinced than the police. “I have no evidence for or against such an observation,” Brown told the judge, “other than the fact that they are definitely clean.”

  Glenn Hays could only hope his medical experts would put on a better show.

  The prosecution’s star medical witness in the preliminary hearing and in the trial would be Dr. John Penistan, the Stratford pathologist who performed the autopsy on Lynne Harper. Dr. Penistan noted that he found three superficial scratches along Lynne’s legs “which could easily be obtained while climbing through a barbed wire fence.” Then he moved on to describe Lynne’s genital area: “There was an abrasion about between one-third and one-half inch in diameter, superficial, of the skin of the private parts on the right side. I think it is the sort of lesion which might well have been made by a blind, furious thrust of the male organ.”

  A blind, furious thrust? Not exactly a medically precise diagnosis. A pathologist might be able to detect the intensity of the friction during sexual intercourse, but words like “blind” and “furious” foreshadowed how the prosecution intended to sway the jury at the trial with colourful rather than scientifically accurate descriptions of the girl’s final moments. Penistan’s confidence that the abrasion he found was a definitive sign of a “blind, furious thrust” was all the more puzzling considering he admitted that decomposition and “a tremendous population of maggots” had obscured Lynne’s anatomy.

  Of all the doctor’s theories, the most crucial for the Crown would be Penistan’s precise determination of the time of death. Yet the preliminary hearing revealed the shaky ground upon which this vital part of the case rested.

  For starters, Penistan let slip that the “very slight” rigor mortis and the large amount of eggs and maggots “were compatible with death one and a half to two and a half days before the autopsy was done.” That put the murder at any time between 7:00 a.m. on Tuesday, June 9, and 7:00 a.m. on Wednesday—a vastly wider window than Penistan would later describe. He would never again make that mistake.

  Penistan narrowed his estimate of the time of death by relying on stomach contents. “Death would, in my view, have occurred between 7:15 in the evening of June 9th and 7:45, which would be two hours after consumption of the meal, and I would think earlier during that period rather than later,” he concluded. “I think that is all I have to tell you, sir.”

  It was enough. If Dr. Penistan’s time of death was accurate, the killer was Steven Truscott.

  To try and reinforce Penistan’s testimony, Glenn Hays called to the stand John Funk, the biologist from the provincial laboratory. Funk had spent the previous four weeks analyzing the jar of stomach contents police provided to him the day after the autopsy.

  “Have you, as yet, completed your analysis?” Hays asked.

  “No sir, I haven’t,” said the biologist. In other words, one month after Graham insisted the lab experts told the police Lynne had died “not more than two hours” after her supper, the expert himself was telling a court he had not yet finished his analysis.

  “Are you in a position to help us [determine] how long any of this meal had been in the stomach after having been eaten?” Hays asked.

  “I don’t feel qualified to answer that question,” Funk insisted. It was a disturbing reply, though no one in the courtroom seemed to realize just how devastating it was. After a month of examinations, the provincial laboratory’s expert was not ready to speculate under oath about the time of Lynne’s death. Yet on June 12, Graham claimed an oral report from the laboratory estimating time of death was enough justification to take Steven into custody. Now, in mid-July, all Funk could tell the preliminary hearing was that he would finish his analysis of the stomach in a week.

  “Your Worship, if this man could have his findings in a week, I would ask that the hearing be adjourned, so we could get the findings on them,” Donnelly asked. It was not an unreasonable request, considering that the Crown made stomach contents the main proof that Lynne was killed in the same half-hour she was with Steven.

  “I cannot see eye to eye with you there. You will have your trial if the man is committed for trial. You will have your findings beforehand,” replied Magistrate Holmes.

  “We have a right to get this on discovery rather than take a handout from the Crown,” Donnelly insisted, referring to the rules—much more limited in 1959 than today—that allowed the defence access to basic prosecutorial information.

  “No. I can’t see it. This is a preliminary inquiry, and if it should be that I am not satisfied that there is enough evidence to commit this man, then you are all right,” Magistrate Holmes said firmly. “I cannot agree to any adjournment.”

  In effect, the judge was saying to Steven’s lawyer: Don’t worry about the lab report because you won’t need it if I throw out the case, and if I decide to send your client to trial, you’ll get the report anyway.

  As it turned out, John Funk took not seven days but six more weeks to complete his analysis of the stomach contents. He filed his report on August 31. The police and prosecution saw what was in it, but not a judge or a jury. Hays never called Funk to testify at trial and he never entered the biologist’s written report into evidence.

  To add more weight to the medical evidence, the Crown also called in Dr. David Hall Brooks, the senior medical officer at the base, who had identified Lynne’s body in the bush, assisted in the autopsy and helped examine Steven the night of his arrest. Dr. Brooks would prove to be even more enthusiastic than Penistan in helping the prosecution convict the accused boy. Sometimes, however, his zeal seemed to get the better of him.

  Brooks began by describing Steven the night he was in police custody at the base guardhouse: “He was flushed and a
little more emotionally charged with energy than usual. He was sitting apathetic in the chair with his head slightly bent.” He was not asked how the boy could be emotionally charged and apathetic at the same time. Nor was he asked how he could know Steve had more energy than usual if he did not know the teenager or what his “usual” energy level was.

  Brooks’s description of Steve’s body was equally puzzling. “He seemed to be very well washed in the region of his external genitalia,” he remarked. “This was in rather marked contrast to the skin of his face and neck and everywhere. A child of that age, as you know, they tend to have a greasy skin, which seems to shine.” Was it so unusual that Steve’s face and neck would be dirtier than his private parts after spending a hot summer day on his bike and on a farm?

  “The thing we discovered last,” Brooks said with a dramatic flair, “and to us the most important, was that this boy had lesions on his male organ.”

  “Penis, is that it?” the judge asked somewhat gingerly.

  “Yes,” said the doctor. “Pulling the skin back sufficiently to take the wrinkle out of it, there was this lesion, one on each side. A little bigger than a quarter in size and of a degree which I have never seen.”

  Ordinary masturbation injuries, Brooks went on, appear to heal in one week. “This injury was still oozing serum. It would seem fairly new,” he said. “I would say that this was more than forty-eight hours old and certainly less than five days old.”

  It was a remarkably precise dating of a sore Brooks had examined for only a few minutes. He appeared to know with certainty Steve injured his penis sometime between the previous Sunday and Wednesday evening, and not a day earlier or later. It was an impressive medical feat, but apparently not exact enough to prove Steve had raped a girl on Tuesday night. Fortunately for the prosecution, Brooks’s diagnostic skills on the age of penis sores would improve by the time it came to a full trial.