Until You Are Dead (updated)

by Julian Sher

  Donnelly’s goal was clear. If the bike tracks were made when the ground was wet or moist and it had not rained for several weeks, then clearly the tracks were not made by Steven Truscott on June 9, in the middle of a heat wave. But Donnelly failed to make this point obvious to the jury. The cross-examination of Erskine was Donnelly’s debut performance at the trial, and it demonstrated his strengths and flaws. He had a sharp mind and his precise questions often solicited gems of information. But too often, he failed to follow through on his triumphs, and stopped short of making the significance of a witness’s testimony crystal clear to a jury much less familiar with the minutiae of the case than he was.

  When court resumed at 10:00 the next morning, Donnelly moved on to the second piece of physical evidence—the two marks or indentations in the earth near Lynne’s feet. The defence lawyer took Erskine back to his testimony at the July preliminary hearing.

  “Is it still correct,” Donnelly said to drive home the point, “that the marks were so indistinct you were unable to say whether they were made by a hard-soled shoe or a rubber-soled shoe?”

  “That is my feeling, sir, yes.”

  It was an important admission. The chief police expert was conceding that the marks found near the body, in his opinion, were essentially useless in identifying a suspect.

  Hays wisely did not try to counter Donnelly’s work by re-examining Erskine; he quickly got the unhelpful policeman off the stand. Hays had a much better strategy: he would wait until the very end of his case to bring in his star “footprints” witness, safely assuming that by then the jury would have long forgotten Erskine’s cautious words.

  The second day of the trial would be dominated by the prosecution’s most important expert witness, Dr. John Penistan, the pathologist who examined Lynne’s body. But before the jury heard a graphic description of the corpse, Hays wanted the jury to have a sharp image of the girl when she was alive. So one of his first witnesses on Thursday, September 17, was Lynne’s mother, Shirley Harper.

  Hays let Lynne’s mother paint a portrait of idyllic, household bliss. She described her daughter’s return home after the ball game, a quick supper of peas and turkey, a pause to wash the supper dishes and then a hurried departure to go play outside.

  “Have you ever known your daughter to hitchhike on any of the roads?” Glenn Hays asked.

  “Not to my knowledge, sir.” It was tactful response: not so much a definitive “no” as an “I don’t know.” It completed the portrait of an innocent Lynne, a far cry from the adventurous girl who Steve insisted had asked for a lift to the highway. It was also a far cry from the truth. Lynne’s friends said they hitchhiked with her frequently. And if Lynne’s mother had no knowledge of her daughter’s hitchhiking habits, it was curious that Lynne’s parents told the authorities on the night she disappeared that “it was possible she was hitchhiking to her grandmother’s.” But neither Donnelly nor the jury knew anything of this: instead, they were presented with an image of a dutiful daughter who would never run away.

  Before calling his witness, Dr. John Penistan, Hays scored a dramatic point by suggesting to the judge that Lynne’s mother leave the courtroom.

  “I thought possibly she heard all this before,” the judge said.

  “No, she hadn’t, my lord.”

  “It is better that she is out,” Ferguson agreed.

  Shirley Harper made a graceful exit; it must have been a poignant moment for those present, a reminder that behind all the legal sparring and medical terminology, a killer had taken a girl’s life and shattered a mother’s world.

  The distinguished doctor then began his testimony from the witness box. “What is the pathological cause of death?” the judge asked.

  “Asphyxia due to strangulation,” the doctor replied. “The cause of death was strangulation by ligature of the blouse.”

  Penistan’s testimony now turned to the central matter of his analysis of Lynne’s stomach contents, upon which rested the prosecution’s entire theory for the time of death. The doctor’s first words on the subject were unambiguous: “I recognized peas, onions, a few pieces of meat, one bit I thought was ham and another was white meat.” A little later, he said: “The food appeared to have been very poorly chewed … bolted and swallowed without proper chewing, which would tend to slow down the digestion.” Thus, on two points Penistan seemed certain: there was meat in the girl’s stomach, and her food had not been well digested.

  Hays asked the doctor for his best estimate of the time Lynne’s food had been in her stomach.

  “I would estimate between one and two hours.”

  “You were in the courtroom when Mrs. Harper testified this girl finished her meal at a quarter to six,” Hays continued. “On that basis, sir, you would put her time of death at—”

  “As prior to a quarter to eight.”

  “As early as—”

  “Probably between seven and a quarter to eight.”

  Precisely the period when Steven Truscott was with Lynne Harper. Hays’ questions and Penistan’s answers were intended to lead the judge and jury to believe that objective science—unsullied by the police or any other outside forces—pointed the finger at one and only one suspect—the accused boy.

  “Apart from the stomach,” Hays later asked his chief witness, “are there any other observations that would assist in determining the cause of death or the time of death?”

  Yes, Penistan told the jury. Rigor mortis had practically disappeared, which indicated that death had occurred “some two days previously.”

  What the jury did not know—and Hays certainly was not going to tell them—was that two months earlier, at the preliminary hearing, the same findings led Penistan to a slightly different conclusion. In July he testified under oath that stomach contents, combined with the degree of putrefaction, might indicate a time of death from one and a half to two and a half days prior to his autopsy. In other words, from the physical evidence alone, Lynne could have been killed as late as Wednesday and as early as Tuesday afternoon.

  Penistan’s science had apparently evolved over the summer to give Hays a better time frame.

  Having pinned the time of death in the jury’s mind to a convenient window of the thirty to forty-five minutes when Lynne was largely with Steve, Hays now had to fill the jury’s heart with disgust at how violent and brutal her rape was. The details were gory enough, but Hays had to get the doctor to do some skilful dancing around the medical facts.

  From the start, Penistan admitted that the body, lying under a sweltering summer sun in an insect-infested underbrush for as long as two days, was badly decomposed. In fact, the doctor was not able to identify the hymen and could not determine “whether its absence was of recent origin or whether it had been destroyed on some other occasion.” Still, the decrepit state of the body did not stop the pathologist from concluding death followed “a large degree of violence.”

  The defence quickly interjected: “My lord,” Frank Donnelly said, “might I suggest that in view of the serious post-mortem changes that this man found, that it would be extremely dangerous for him to express any opinion at this time?” Penistan himself had stated the maggots caused considerable damage. He had acknowledged that the decomposition changes “were very severe and did completely obscure the anatomy.”

  But Justice Ferguson disagreed. “I think the doctor, as a pathologist, is entitled to give his opinion as to what caused these changes.”

  And so Penistan did. The injuries to the vagina, in particular, he said, “might possibly have been produced by a blind, violent thrust of the male organ in the direction of the entry to the vagina,” using the same colourful language he employed at the preliminary. It was certainly shocking stuff for a small-town jury in the 1950s to hear. But was it scientifically accurate? The doctor did not explain how he knew the thrust was blind or violent. Presumably, even if the sex had been consensual, there might be damage to a preteen’s genital area. What’s more, the doctor had just told t
he court the decomposition was severe enough to “completely obscure the anatomy.”

  Penistan said there was an abrasion of the skin just beside the entry into the vagina, but there was no bleeding because “it was too superficial.” To get around the conundrum, Penistan came up with an intriguing solution. He told the court that intercourse must have occurred after death or “while the child was dying” because the bleeding from the injuries “was extremely small.”

  It was a stretch. What Penistan declined to tell the jurors was that his microscopic examination of the vagina showed no hemorrhaging. The bleeding was not “extremely small”—it was non-existent.

  When defence counsel Donnelly rose to begin his cross-examination, he knew he had a difficult challenge ahead. He had to shake some of Penistan’s scientific certainty without confusing or boring the jury with medical jargon. Right from the start, he scored a significant point about the changes in the body following death.

  “There are many factors that could contribute to the variation of time that it would take for those changes to occur, would it not?” Steven’s lawyer asked.

  “Yes sir,” said the doctor.

  “And that is not a very accurate way of estimating the time of death,” Donnelly pursued. “It would be difficult to tie it down within five or six hours of those changes, wouldn’t it?”

  “Yes sir.”

  It was a crucial concession by the prosecution’s chief medical witness. But instead of pursuing this potentially explosive line of questioning to drive the point home to the jury, Donnelly suddenly switched topics. He did not ask Penistan how he could reconcile a gap of “five or six hours” with the narrow forty-five-minute window he had fixed for the time of death. He did not ask Penistan how he could reconcile his trial testimony with his estimate at the preliminary hearing that death could have occurred as late as Wednesday. Instead, Donnelly changed the subject and proceeded to talk about blood types and knots on the blouse around Lynne’s neck. Within a few minutes, the judge called for a lunch recess. Donnelly had missed his first opportunity to shatter the prosecution’s theory for the time of death.

  After the break, Donnelly began to poke some holes in Penistan’s analysis of the stomach contents. “I thought some of it looked like ham,” the pathologist testified, after admitting his examination “was simply by the naked eye.”

  “It was a reddish brown colour, and some looked like the white flesh of fowl,” Penistan said.

  Donnelly promptly pointed out that at the preliminary on July 13, Penistan said he saw “a little meat, which I feel was probably ham,” but made no mention of fowl. “Why mention it now?”

  “Because I am doing my best to tell you what I recall.”

  “You were doing your best on the 13th of July?”

  “I trust so.”

  “You were on oath, the same as you are here?”

  “Yes, indeed.”

  It was a testy exchange, so much so that Justice Ferguson stepped in, in an apparent attempt to save the doctor further discomfort. “I think I should, in fairness to the doctor …” He turned to Penistan. “If you want to refresh your memory, you may refresh it from your original notes.”

  “No sir.” Dr. Penistan quickly declined the offer.

  “You say you made a record of white meat in your notes,” the judge continued. “Because I would assume you would make a record of those things in your original notes.”

  “I think so,” the doctor replied. “I will check and see what the notes say.”

  “Yes, I think you should,” the judge said.

  Penistan paused for a few moments to look through his notes—“my dictation, my records”—taken down by Dr. David Brooks as Penistan carried out the autopsy. As he looked up to face Donnelly and the rest of the courtroom, his embarrassment was palpable.

  “I must say my notes say there was no meat. There was no obvious meat,” the Crown’s top medical expert admitted.

  Donnelly could hardly believe his good fortune. “Your notes say there was—” he paused, surprised at his chance uncovering of medical flip-flops—“there was no obvious meat on your examination?”

  “Yes,” came the terse reply.

  Donnelly did not immediately ask to see those written notes. Penistan had consulted them while in the witness box; Donnelly had every right to see them and study them as well. Perhaps Donnelly never thought of it or perhaps the oversight was typical of the deference with which lawyers in 1959 treated figures of authority. Either way, once again, Donnelly failed to capitalize on the moment and let a key opportunity slip away.

  The cornerstone of the prosecution’s case was that death occurred between 7:00 and 7:45, largely because of an analysis of stomach contents. How valid was that analysis if the star medical witness had just admitted his autopsy notes said “no meat,” his July testimony said the only meat was ham, and now his September testimony added fowl? These were important contradictions. Donnelly could have ensured that the jury fully grasped these glaring holes in Penistan’s credibility by elaborating on each one slowly and carefully. Instead, Steve’s lawyer said not another word after Penistan’s embarrassed admission, and changed topics once again.

  “Emotional upset or anger would lead to the slowing-down of the digestion process?” Donnelly went on.

  “Yes,” the doctor replied.

  “You have no scientific data as to how much the digestive process of a twelve-year-old girl would be slowed down by improper chewing of her food?”

  “No sir.”

  Donnelly was apparently trying to suggest that Lynne’s frustration over not being able to go swimming might have delayed her digestion and therefore altered the estimated time of death. But once more, after only a few brief questions, he moved on to another topic, and within a few minutes, his cross-examination petered out. Prosecutor Hays spent less than two minutes in his re-examination, probably realizing it was unnecessary to do any damage control.

  Donnelly had failed to shake the jury’s confidence in the pathologist’s neatly packaged theories that pointed the finger directly at Steven Truscott.

  The next morning, on Friday, September 18, Inspector Harold Graham got the chance to tell his story, but most of it the jurors did not hear. Hays asked that the jury be excused because the inspector would focus on the statement he obtained from Steven—the same statement that Ferguson warned could cause a mistrial because Hays referred to it before the judge had ruled on its admissibility.

  Donnelly pushed the inspector for details about his interrogation of Steven on the night of June 11, based on that statement.

  “You have been cross-examining suspects for how many years?”

  “Nineteen.”

  “Nineteen years. And this was a boy of fourteen years of age, and you knew that?”

  “Yes sir.”

  “How long did you cross-examine him?”

  “I talked with him.”

  “How long did you cross-examine him, please?” Donnelly said, evidently losing patience with Graham’s obfuscation.

  “Well, there’s a difference. I don’t say I cross-examined him all the time. I talked to him,” Graham replied. “I can’t recall how long I cross-examined him and how long I talked to him.”

  “But you talked to him for an hour and a half, and you came up with this one sheet of notes that you have?” Donnelly asked a short time later, somewhat incredulously.

  “Yes sir.”

  “And you said a great deal more than that to him, didn’t you?”

  “Yes I did.”

  “And he said a great deal more than you have down?” “Yes.”

  Donnelly was seeking to show that no one would ever know what really was discussed between the inspector and the teenage boy if only a partial account of their meeting was available. Steve’s lawyer then tried to unravel the OPP’s tactics in trying to lure Steve into confessing. Graham was forced to admit he had sent the officer who arrested Steven, Donald Trumbley, back home to get out of his
uniform.

  “Investigating a matter of this nature, it is preferable, I thought, to be plainclothes,” Graham said.

  The OPP’s embarrassment only deepened when Trumbley himself followed his inspector on the stand. The constable first tried to argue he went home “because my pants were all dirty.”

  “I suggest the purpose in changing your clothes was so you wouldn’t be there in uniform while the inspector was talking to this boy?” Donnelly asked.

  “I would have had to go home anyway to change my clothes,” the policeman insisted. “My pants were all mud.”

  “And you didn’t want to be present with this boy of fourteen in uniform because your pants were dusty?” Donnelly asked. “Is that what you want to tell the court?”

  “No,” the officer conceded. “That was one reason.”

  “What was the main reason?”

  “Because I was told by Inspector Graham to change.”

  “Why didn’t you tell us that instead of telling us ‘I went home to change my uniform because it was dirty?’”

  “I have no answer.” Trumbley said.

  “You have no answer. No. I wouldn’t think you would.”

  It was not the OPP’s finest hour. But it was enough to confirm the judge’s suspicions.

  “Now just tell me,” Ferguson had asked Graham earlier, “why wasn’t the lad warned when you first took this statement from him? Because you were suspicious of him before you examined him the first time, and your suspicions must have been directed heavily toward that lad at that time.”

  “It was not until I heard the evidence of Jocelyne Gaudet and the report from the laboratory that he became a strong suspect,” Graham maintained.

  Donnelly told the judge he felt the police had simply not played by the rules. “The absence of a warning is fatal in this case, and the inspector very frankly admits he gave no warning.” Hays, for his part, tried to suggest that the police at the time were questioning Steve “merely as a witness.”

  “Are we to have the situation where a boy between fourteen and fifteen just isn’t available to the police?” Hays asked. “I know of these safeguards about a person’s liberties and so on, but surely we can’t come to the stage where the police are to be deprived of some means of getting statements, even from young people.”