Until You Are Dead (updated)

by Julian Sher

  Erskine’s unease was particularly worrisome because it went to the core of the chief weakness in the case so far: the lack of physical evidence from the crime scene. Corporal Sayeau had admitted in the preliminary hearing that the bike tracks were days, if not weeks old. Erskine dismissed the marks near Lynne’s feet as “scuff marks.” Clearly, if prosecutor Glenn Hays was going to convince a jury that Steven was in that bush with Lynne, he was going to need something more tangible.

  In all of the available memos Graham sent to his superiors before the trial, the inspector never made any reference to footprints. None of the formal statements and reports by the various police officers in the file mentioned footprints. No one testified about footprints at the preliminary. But somehow, between the preliminary in July and the trial in September, footprints linking Steven to the crime scene appeared.

  The prints appeared through the recollections of Flying Officer Glen Henry Sage, who took charge of the air force men at the scene of the crime. “I was standing right below the body. You look down and you saw there were two mounds,” he recounted. “And you could clearly see a footprint.”

  The OPP were in an embarrassing situation. Flying Officer Sage was finding recognizable footprints where their own identification officer saw none. On Friday, September 11, less than a week before the trial began, Harold Graham took a dramatic step. He called in another identification officer.

  Corporal Dennis Alsop was surprised when he got the call from Graham. “I was going into another officer’s territory,” he recalls. Alsop, who worked in the identification branch in the London district, says it was “unprecedented, definitely.” Erskine must have been upset, Alsop says, knowing Graham felt that he had blown the crime scene:

  “If you go to a crime scene and you miss something, you feel pretty bad.” Erskine, according to his widow, called it “dirty baseball.”

  Upon arrival in Clinton, Alsop asked to see Steve’s running shoes. He was not allowed to remove them from the premises, so he had a box of dirt brought in and then pushed down on the shoes with his hand to make a mark.

  “My God—that’s the impression that I saw at the scene,” Sgt. Charles Anderson of the Goderich OPP exclaimed.

  “Then I knew we had something,” says Alsop.

  “Can you do anything about this?” Graham asked.

  “Well, if I get the photographs that were taken at the time, I can see what we can do.” He snapped pictures of the prints in the box and planned to compare them with the photographs Erskine took of the marks at the crime scene.

  Alsop thought he spotted something. “The shoe that Steven Truscott was wearing … had deep ribbing on the side,” Alsop says. “In another picture [from the crime scene] that we enlarged quite a bit, you could see the pattern of … the ribbing on the side.”

  On the other hand, the lab expert who examined Steve’s shoes seized by police the night of his arrest noted the right shoe had a split in the toe, and that there was also a break in the sole adjacent to the heel. Alsop, unfortunately, could find no similar cracks, splits or marks in the prints. “It wasn’t like a footprint where you get what we call ‘accidental marks,’” he recalls.

  Alsop also visited London shoe stores to find out how many shoes matched the ribbing he found; he gave up, he says, when he discovered the style was all too common. “There were hundreds of them around. So we couldn’t say that it was that particular shoe,” he concluded. “I couldn’t say that it was Truscott’s shoe.”

  In any event, after all his work Alsop would never get a chance to present his footprint evidence at trial. Because of a legal technicality, prosecutor Glenn Hays could not call more than five expert witnesses. But seven years later, Alsop would get another opportunity in front of the Supreme Court of Canada.

  The warm winds of a dying summer blessed Clinton on the mid-September weekend before the trial of Steven Truscott opened. For youngsters raised on Dragnet and Gunsmoke, the prospect of taking part in a true crime drama was enticing. “I remember it being very exciting,” recalls John Carew, fourteen at the time. “Our authority figures up to that point had been school principals and teachers, and here we were confronted with a whole bunch of police and a courtroom and a judge.”

  John, like most of the students, assumed Steven would get off. “We had gone to the trial with a ‘rally round the flag’ attitude, saying: ‘Let’s get this sorted out because Steve wouldn’t do something like that.’”

  Michael Burns was a good friend of Steve’s. He remembered fondly the many evenings they had spent picking up pins at the bowling alley for five cents a game. He was badly shaken by his friend’s arrest. It was Michael’s younger brother, Philip, who testified at the preliminary hearing about not seeing Steve or Lynne on the county road. Just days before the trial opened, the police questioned Michael himself to confirm the time his brother arrived home from the river.

  Michael was chilled by the thought of taking the stand as a prosecution witness. “You tell your story and next thing you find yourself testifying against your best friend,” he says. “There was a sense of doom, a real sense of doom.”

  If Steven was looking for an omen on the eve of his trial, it was not hard to find. Right across the street from the courthouse in Goderich, the Park Theatre announced a new feature starring Gary Cooper. The marquee spelled out the movie title in black and white for all to see: The Hanging Tree.

  SEPTEMBER: THE TRIAL

  15

  THE QUEEN VERSUS STEVEN TRUSCOTT

  It stood at the very centre of town, an unshakeable symbol of law and order. Other cities might have a church, a park or a fountain to serve as an anchor for its citizens. Goderich had its courthouse, a granite building in the middle of the tree-lined circle from which the entire town radiated.

  On the third floor of that building, jury selection took only a few hours. They started with a pool of ninety people, including fifteen women, chosen from the voters’ list of each municipality in Huron County. Doris Truscott told Frank Donnelly she thought it would be a good idea to have some women on the jury, preferably those with teenage sons. But her son’s defence lawyer apparently did not agree. “He said women are too emotional,” Dan Truscott recounted in a letter.

  In the end, Donnelly and Hays quickly agreed on twelve men. They were simple folk: five farmers, three labourers, two merchants, a barber and a milkman, who was the foreman. They were going to decide if Steven Truscott was guilty or innocent, whether he would walk free or hang from the gallows.

  All summer long, Steve’s defence counsel had worked tirelessly by himself to prepare the case. Now, on the eve of the trial, Frank Donnelly recruited a young lawyer from Toronto to lend a hand. Dan Murphy, twenty-nine, had attended St. Michael’s College with Donnelly and was thrilled to work on such a headline-grabbing case. “For a pretty young lawyer, it was kind of exciting,” Murphy recalls. “It was my first murder trial.”

  Donnelly worked in a small office just across the street from the courthouse. His only staff was a single receptionist. “I think he was pretty confident,” Murphy says. “It’s incredible how little evidence there was. There was almost none.”

  Frank Donnelly shared that confidence with Steve’s parents. “If it was all circumstantial, you think: how can they find him guilty?” Doris Truscott says. “There just wasn’t that definite proof.”

  On Wednesday, September 16, 1959, just over three months after Lynne Harper was murdered, the trial began. “Her Majesty the Queen, Complainant, versus Steven Murray Truscott, Accused,” read the court docket.

  “Place the prisoner in the prisoner’s box,” demanded Justice Robert Ferguson.

  If the jurors were expecting to see a scene out of Perry Mason, where the defendant sits calmly at the same table next to his lawyer, they were in for a shock. Canadian courts took their cue from the British judicial system. As the accused, Steven sat alone in a box of dark, thick wood with a swinging gate, directly facing the judge. “I was scared to death. I
hadn’t seen anything like this. It’s just something beyond your comprehension,” Steve recalls, the fear of that first day still etched in his mind. “One part of you realizes what goes on, but you just can’t believe it.”

  Steven’s lawyer was about five feet in front of him, to the right, at a table for the defence; to the left, Glenn Hays sat at the prosecution’s table, and huddled beside him—the standard practice in Canadian trials—was the chief investigating officer, in this case OPP Inspector Harold Graham. To the left, against a wall of tall windows where Steven could catch hints of the approaching fall colours, the jurors sat in stiff chairs, staring at the young boy they had read and heard so much about.

  The spectators sat behind Steven in seven long rows of benches, much like church pews. The judge had imposed a publication ban on the trial. Journalists could have remained and recorded the proceedings for publication after the trial was over, but in 1959, reporters rarely questioned the workings of the justice system. Regrettably, that meant few independent observers would follow the trial testimony in all its intricacies.

  “Upon this indictment, how do you plead?” Justice Ferguson began.

  “Not guilty,” said Steven in a soft voice. Those were the only words he would ever speak at his own trial. Ferguson turned toward the jurors. They were as intimidated as everyone else in the courtroom, for the judge had a reputation of being tough on just about everybody. “Hard on Crown attorneys, defence counsel, police witnesses—anything that didn’t go along with him, he was critical of it,” remembers Hank Sayeau. “He took slices off people.”

  For now, the judge started in his calmest tones. “This young lad that we are about to try is charged with murder, which is the most serious offence known to our law,” the judge intoned to the jurors. “If you have read anything about it in the newspapers, please dismiss that from your mind now, because we can’t try this case on newspaper comments or evidence or gossip we hear in the community.”

  A lofty, if somewhat unrealistic goal. It would have been hard to find anybody in Huron County who hadn’t heard the rumours and gossip that had swept the community since the discovery of Lynne’s “ravished body” as the press described it. “Of course everyone knew about the police case before the trial,” one juror later admitted. “The police knew he was guilty. It was so obvious.”

  Once the judge finished his opening remarks, Glenn Hays rose to outline the Crown’s case. Hays had a reputation as a powerful orator; indeed, sometimes he let his oratory get the better of him. “He was quite a talker. He liked to argue no matter what,” recalls one of the jurors who knew Hays as a neighbour. “He had quite a big mouth.”

  Hays began by explaining the focal point of his case: the time of death based on a medical analysis of Lynne’s stomach contents. “I would ask you to note what she had to eat,” he said. “Also, when she finished her meal. You will later hear from a provincial pathologist who will give you an opinion of the time of her death, based on his observation of her stomach and its contents.”

  He then previewed the second pillar of his case: a young, lustful boy on the prowl, as evidenced by Jocelyne’s testimony of a secret rendezvous in the bush. “She will tell you of arrangements she made with Steven Truscott [to go] in or near this same bush where the body was found.”

  The third piece of the puzzle was Truscott the liar. Hays explained that Steven claimed to have seen Lynne get into a 1959 grey Chevrolet with yellow licence plates. “You will be shown pictures taken from the bridge he was supposed to have seen this from. You will be the judges of what can or cannot be seen.”

  To top it all off, Hays then promised some physical proof “of very considerable significance—an item of clothing of the accused, taken from him sometime after the arrest.” Hays did not give any clues, wisely planting the seed and letting the jury build up anticipation with their imaginations.

  But then, less than an hour into the trial, Hays let his oratory soar a little too high and he stumbled badly. He told jurors they would not hear “of any confessions at all or anything like that.” He followed with these words:

  “On the Friday night, a statement was taken from the accused by Inspector Graham and the other police, signed that night by him—”

  “Mr. Hays!” the judge interrupted. He was rightly furious. Nothing had been decided yet about the admissibility of Steven’s statement to the police. Worse still, by slipping in a reference to a statement made by the accused as part of the Crown’s case, the jurors might very well conclude that Steven had made a confession.

  “I don’t intend to say anything about it,” Hays said, trying to recover.

  “You shouldn’t have said anything about it at all.”

  “Even the fact that it was taken at all?” Hays pleaded.

  The judge would have none of it. “I may have to discharge this jury and start all over again. You shouldn’t do that, you know.”

  Chastened, his rhythm broken, Hays limped to a conclusion in his remarks. Prompted by the defence counsel, the judge ordered the jury removed in order to discuss Hays’ gaffe. “If the statement is not admitted, you have made a mistrial, Mr. Hays,” said the judge sternly, in a warning he would later choose to ignore. “I can’t do anything about it now.”

  The jury was recalled but the damage was already done. Twelve men had heard the Crown prosecutor talk about an important, perhaps damaging statement the accused had given police the night of his arrest. They could not have known that Steven’s statement that night was his explanation for his innocence, not an admission of guilt.

  Hays immediately called his first witness: Cpl. John Erskine, the district identification officer for the OPP. In the clipped and professional tone of an experienced policeman, Erskine quickly ran through his work when he arrived at the crime scene. Hays entered into evidence more than twenty photographs taken by Erskine. The photos showed two unidentified marks next to Lynne’s feet, the bicycle tire marks in the laneway near the bush, and general views of the bridge and highway.

  What is remarkable, though, is what Hays did not have Erskine say. Erskine spent more time at the crime scene than any other police officer, making six to eight visits in a month. His testimony lasted thirty minutes. And yet not once did the Crown have the main police identification expert tie a single a piece of evidence to the accused. In fact, the Crown’s identification expert did not really identify anything, except to say which photographs he took.

  This technique was to be a hallmark of Hays’ well-orchestrated style—a blizzard of details and suggestions, but with little hard fact beneath it all. Hays would later make much of the alleged “footprints” found near the body, but his lead-off police identification expert was much more circumspect. Erskine would only say his photographs showed “scuff marks adjacent to and west of the feet of the deceased.” That is even how Hays entered the photographs as evidence: “Exhibit 2: Photograph of scuff marks.”

  Hays then moved to another set of photographs. “Did you on Saturday, June 13th, make an examination of the laneway to the north of Lawson’s bush?”

  “I did, sir,” Erskine answered.

  “Did you there find any—”

  “Just a moment!” defence lawyer Donnelly burst in. “I have grounds for objection to the series of pictures that my friend now has. They are not at all relevant, my lord.” Justice Ferguson asked the jury to retire once again while the lawyers thrashed out their disagreements.

  The photographs showed several bicycle tire marks in the dry, cracked earth of the tractor trail leading into the bush. Donnelly was outraged because Hays had assured him before the trial they would not be used as evidence.

  “We are taken by surprise by this evidence,” he told the judge. “My friend indicated that they were not relevant and didn’t give us any copies. They were made sometime before this alleged incident. The fact that the marks were somewhat similar or similar to the tread on the bicycle tire is not material.”

  The judge disagreed. “Mr. Hays se
ems to think it has something to do with the case. I don’t think I can rule it out on the grounds you put forward,” he told Donnelly, and he recalled the jury.

  Hays had scored a victory in getting the pictures of the tire marks entered into evidence, but his own police expert soon rendered that triumph hollow. As with the scuff marks near Lynne’s body, Corporal Erskine was careful. Hays held up the two tires taken from Steven’s bike.

  “Did you make any tests in relation to it [the bike]?”

  “I did, sir,” Erskine said. “I compared the tread with the marks shown in the photograph. There was a series of vertical lines, … marks on the side of the tires similar to marks in the photograph.” It was a cautious appraisal: no matching treads, no plaster casts that fit exactly.

  “Can you make any comparisons with either of the other photo exhibits?” Hays asked.

  “With this wheel?” Erskine asked.

  “The front one.”

  “No sir.”

  “Or the rear one.”

  “No sir.”

  Not exactly a conclusive match. But by the end of the trial, Hays would turn these tire tracks into proof that Steven’s bike had passed through the lane on the way to the bush; even the judge would lend weight to that theory.

  Defence counsel Frank Donnelly lost his battle to exclude the photographs of the bicycle tire tracks, but he used his brief cross-examination of Corporal Erskine to score an important point about the relevancy of the tracks.

  “The ground there is baked very hard?” he asked Erskine.

  “It is, sir.”

  “There [are] wide cracks in the ground?”

  “That is correct, sir.”

  “I suggest to you these marks would be made in these pictures when the ground was wet?” he asked.

  “Yes, sir.”

  And then Donnelly secured his prize. “I suggest to you it would take weeks for the ground to dry out and crack like that?”

  “It would take some time,” the police expert agreed.