Until You Are Dead (updated)

by Julian Sher

  Judge Ferguson took the lunch break to consider the matter and came back with a swift decision.

  “I have come to the conclusion that I ought not to admit this statement,” he told the lawyers after the recess before the return of the jury. “I think it would be a very dangerous thing to try this boy and let that evidence go before the jury.” The judge ruled that the police knew very well when they were taking the statement that “he was the person who was going to be charged” and consequently a “warning ought to have been given.” For a brief moment, the justice on the bench seemed to go beyond the legal niceties and acknowledge the cold, hard power relationships as they existed in the real world. “There was no equality between this fourteen-year-old boy and a group of police officers who were examining him,” Ferguson stated bluntly, and, consequently, the statement in no way was voluntary.

  It was the first time in Steven Truscott’s long entanglement with the legal system that a member of that system would admit he had been wronged. But the victory was only a moral one, robbed of any significance. Ferguson had explicitly warned Hays two days earlier that by telling the jurors about Steven’s statement he had caused a mistrial “if the statement is not admitted.” Ferguson had now barred the statement from the trial, but—as was his right—he exercised his discretion and decided not to declare a mistrial. Donnelly never pushed the issue.

  Suffering what was to be his only major setback in the trial, Hays knew when to quit. When the judge recalled the jurors, the prosecutor had no more questions for Inspector Graham. Surprisingly, neither did the defence. Frank Donnelly had raised only a single line of questioning with the Crown’s chief police witness.

  “Did you make some investigations, Inspector, as to when the last rainfall was in the area?”

  “No, I didn’t, personally,” answered Graham.

  And that was it. In less than a minute, Steve’s lawyer dismissed the man who had led the investigation against the boy, the man who had him arrested and interrogated him and more than anyone else was responsible for his incarceration. It was an omission that must have left the jury somewhat bewildered—they could only assume Steven’s lawyers thought Inspector Graham had done nothing wrong.

  16

  THE CHILDREN TAKE THE STAND

  If the Crown prosecutor wanted Dr. Penistan to convince the jury how and when Steven Truscott had killed Lynne Harper, his next witness would answer the vital question of why. Why would a fourteen-year-old brutally rape and murder a twelve-year-old? Teenage lust was the answer and Jocelyne Gaudet would provide the proof.

  Jocelyne began by laying out the details of her secret rendezvous with Steve. According to her, the following conversation took place on the Monday before Lynne disappeared:

  “I saw a calf at Bob Lawson’s barn yesterday,” Jocelyne began.

  “Do you want to see two more newborn calves?” Steve offered.

  “Yes.”

  “Can you make it today?”

  “No.”

  “Could you make it Tuesday?”

  “I’ll try.”

  “Meet me on the right-hand side of the county road, just outside of the fence by the woods. Don’t tell anyone because Bob doesn’t like a whole bunch of kids on his property.”

  Jocelyne told the court “he just kept telling me to don’t tell anybody to come with you.” Then on Tuesday, at about ten minutes to six, Jocelyne explained, Steven dropped by her house and another conversation took place:

  “Do we have any homework?”

  “We have English homework for our test tomorrow,” Jocelyne told the boy, adding a detail she told neither the police nor the preliminary hearing. As Steve was getting on his bike, she added, “I don’t think I’ll be able to make it [to the bush] because we’re just starting supper.”

  “Bye,” said Steven.

  Jocelyne apparently finished supper quickly, because within thirty minutes, she was on her hunt for Steven. She told the jury she first went to Lawson’s barn, next to the bush and then on to the river. “I stayed there for five or ten minutes and then I went back to Bob’s farm.”

  Her testimony was short and concise, and at times so inaudible even the judge, sitting right next to her, could not hear her timid answers. But Hays had succeeded in using her tale to make two points: Steven had tried to lure another girl into the bush Tuesday night before he settled on Harper as his victim; and, since Jocelyne diligently looked up and down the county road, and Steve was nowhere to be found, presumably he was in the bushes raping and murdering Lynne.

  Sensing a weakness in her grasp of time, Frank Donnelly used his cross-examination to pin down details of Jocelyne’s schedule.

  “What time did you leave your home on June 9th?”

  “About twenty after six or six-thirty.”

  “What time did you get down to the bush?”

  “About twenty to seven.”

  “What time do you think you got back to Lawson’s?”

  “A little before seven.”

  “How long did you stay at Lawson’s?”

  “About an hour and half.”

  “Doing what?

  “Nothing in particular.”

  “Was Mr. Lawson around?”

  “Yes sir.”

  “All the time you were there?”

  “Yes sir.”

  Donnelly soon would get another chance to dismantle these claims, but first he needled Jocelyne on the forever-changing timings of her alleged schoolhouse chats with Steve. Her first conversation with Steve when he proposed the secret date was Monday morning “before classes … about five to nine,” she said. A second talk to plan the meeting took place Tuesday morning.

  “When?”

  “A little before nine.”

  “Are you sure it was then? Might it have been noon?”

  “Well, it was sometime during the morning. I don’t know what time it was, exactly.”

  “When did you next talk to Steven or Steven talk to you after Tuesday morning?”

  “I don’t know.”

  “You don’t know. How many conversations did you have with Steven on Tuesday?”

  “About four.”

  “You say there was one in the morning and you don’t know when the next one was?”

  “No sir.”

  “And I suggest to you, if you don’t know what time it was, you don’t know where it was.”

  “It was in the class. He talks to me in the classroom.”

  “How would he talk to you in the classroom with three people sitting between you and him in the same row?”

  “At nine o’clock.”

  “Was it not during class he was talking to you?”

  “Well, when he comes up to sharpen his pencil.”

  “You told me a while ago you didn’t know what time it was.”

  “Well, it is sometime before nine.… He came up to the front of the room to do something.”

  “Twice he spoke to you when the teacher was in the room?”

  “Yes sir.”

  “I suggest to you then, he would have to whisper to you up the aisle?”

  “He didn’t have to. He would come by to the front and get some books or sharpen his pencil or something like that.”

  Jocelyne looked shaky and confused. Donnelly inflicted more damage on the prosecution’s primary child witness when he was able to show that it was Jocelyne, not Steve, who seemed to be interested in looking for calves in the bushes. Was it not true, the defence counsel asked, that Jocelyne had approached another boy named Gary Gilks three weeks before Lynne’s disappearance about going to Lawson’s?

  “I suggest that you went on and said: ‘Maybe we can find some calves?’”

  “Yes sir,” the girl admitted.

  But Donnelly did not deal the blow against Jocelyne’s testimony that he could have. Shortly after Jocelyne finished testifying, Bob Lawson took the stand. One of the few people on June 9 who actually had looked at a watch, the farmer’s testimony about time was more
credible than most. Lawson promptly told prosecutor Hays that, yes indeed, young Jocelyne did drop by his barn looking for Steve. “She did inquire about the time just before she left.”

  “What time did she leave?”

  “Seven-twenty-five,” Lawson said. She returned to the barn about twenty to thirty minutes later.

  “How long did she stay on that occasion?” Donnelly asked the farmer.

  “Approximately ten minutes, I would say.”

  Ten minutes, not an hour and half, as Jocelyne had just claimed under oath. Lawson’s undisputed testimony meant quite simply that the girl was lying. She also testified she was first at his barn around 6:30—she was off by an hour.

  If Steve’s lawyer missed an opportunity to impugn Jocelyne’s credibility, he was also hampered by what he did not know—that Jocelyne had dropped by Bob Lawson’s farm during the trial to ask a very special favour. It was around 7:00 p.m., as Lawson recalls it. Jocelyne trotted alongside the tall farmer as he hurriedly walked out to the fields. “She was really buttering up to me, chatting away, the way little girls do,” Lawson says. Then she popped her big question. “She wanted me to change the time that she was over to coincide with the time that she had told them that she had been over.”

  “She actually pleaded with me to change the time. ‘No,’ I said, ‘I can’t do that.’ I knew what time it was,” Lawson continues. “We finished rounding up the cows and she kept pestering me quite a bit.” Lawson never reported the incident to anyone until the fifth estate began probing the case in 1999. “I did think it was odd, but I thought, ‘Why get a little girl in more trouble?’”

  Still, it must have taken a great deal of courage—and desperation—for a young girl to approach an adult she barely knew and ask him to conspire with her in a lie. Jocelyne knew that she was badly off in her timing. She also knew eyewitnesses could only account for about thirty minutes of her activities from the time she left the house at 6:30 until the time she returned about two hours later. Wherever she was during that missing ninety minutes, and whatever she was doing, prompted her to misrepresent her timings on the stand and to ask Lawson to lie for her as well.

  None of these deceptions by the prosecution’s young witness ever made it into the courtroom. Jocelyne’s testimony had dragged on late into the afternoon, and Justice Ferguson ordered an adjournment until the next day. He turned to the jurors fidgeting in their wooden seats. “If you find those chairs uncomfortable, mention it to me and we will see what we can do about it,” he said. “County council never anticipated they would have a jury in the box sitting day after day for such a long time.” The murder trial had been going on for only three days.

  Jocelyne’s tale of a secret date in the woods gave Glenn Hays a sexual motive to sell to the jury. Dr. Penistan gave him a precise time for Lynne’s assault to have occurred. The prosecutor still had to convince the jurors that Steven was in the bush with Lynne at the right moment to do the deed.

  Establishing that window of opportunity would be the prosecutor’s main task on Saturday morning, September 19, as the trial moved into its first weekend sitting. It would not be easy, since no one actually ever saw Steve and Lynne enter the woods, despite the busy traffic up and down the county road all evening. Little Philip Burns was Hays’ answer. Philip did not see Steve or Lynne that evening, Hays argued, but he should have because he left the bridge on foot at the same time that another boy, Richard Gellatly, departed on his bike. Richard met Steve and Lynne not far from the school—Philip did not, because Steve and Lynne turned off the road somewhere in between.

  Nobody disputed that twelve-year-old Richard did pass Steve and Lynne on the county road near the school, so his testimony was brief and to the point.

  “I came home to get my [swimming] trunks,” he told the jurors. “Steve was riding Lynne Harper down toward the bridge.”

  “What time would it be when you met and passed them there?” prosecutor Hays asked.

  “Around 7:25. I could be a few minutes out.”

  “Around 7:25?” Hays repeated.

  “Yes,” the boy confirmed.

  “What time did you leave the bridge, Richard?” Hays continued.

  “About 7:20,” Richard replied confidently. Unlike so many of the other children, Richard’s story never wavered. He gave the same approximate times in his police statement and again at the preliminary hearing. His father verified his times. Hays let the boy leave the stand unchallenged. Only much later, in his summation, would the prosecutor have to skew Richard’s definitive times to make his story fit the Crown’s scenario.

  Donna Dunkin provided Hays with the next piece of the time puzzle by putting both Richard and Philip on the road at the same moment. The mother of two told the court she drove her children to the bridge and parked just past the railway tracks, about three hundred feet south of the bridge. She saw Richard heading home on his bike “just as I pulled off the road to park.” Hays asked her when she saw Philip leaving on foot.

  “At the same time as I saw Richard,” Dunkin answered. “Richard would be in the lead.”

  “And how far behind Richard on his bicycle was Philip Burns on foot?” Hays asked.

  “Oh, it would be no more than ten feet,” she said. “They would both be between the railroad and the bridge.”

  “And what hour was that that you saw them?” the prosecutor continued.

  “Oh, I would say between five after seven and a quarter after, or between seven and a quarter after,” the woman replied rather vaguely.

  Hays got corroboration of sorts from a second mother at the river, Beatrice Geiger, who was at the swimming hole. She said she saw both boys leave the river to head home. Philip, she told the jurors, “left from the south side of the river about the same time Richard Gellatly left the north side.”

  When it came time for Philip to tell his version of the story, the small boy seemed to almost disappear in the witness box as the judge peered down to question him about an oath. “It means when you ask God to come as a witness that everything that you say is true,” Philip said, after dutifully informing the judge he attended Catholic Church. Judge Ferguson decided the boy “understands his obligation to tell the truth” but would testify only as an unsworn witness. That meant the jury had to consider his testimony with caution and it could not be used to corroborate what any other witness said.

  Philip said he left the bridge around seven. “I took one dive and I swam to my clothes,” the boy continued. “And then I went up to the river—up to the bridge.”

  Philip proceeded to recount the story of his slow trek back to the base along the county road, where he met Jocelyne and Butch near the entrance to the bush. “I was walking on my way home, and Jocelyne Gaudet came down and she asked me—”

  “No,” Hays burst in, cutting short the boy’s story, “what Jocelyne would say to you isn’t the kind of thing we talk about here.” The prosecutor was trying to avoid hearsay evidence. But his interruption also had the added advantage of stopping Philip from blurting out an embarrassing fact. Philip had told the police and the preliminary hearing that when Jocelyne met him near the bush, she had asked if he had seen Steven and Lynne. It was not the kind of unsettling contradiction Hays wanted the jurors to hear.

  What Hays did want the jurors to hear was Philip’s assertion that he never caught sight of Steven on the road that evening. “Did you see him at all on your way from the bridge home?” the prosecutor asked, coming to the payoff for the entire day of questioning witnesses.

  “No,” Philip replied.

  It all seemed like a neat little package. Two adults at the river see two boys set off for home at the same time. One of the boys sees Steve and Lynne, the other does not; therefore Steve and Lynne must have left the road.

  Except for minor quibbles, Donnelly never challenged the underpinnings of the story. He did not suggest in cross-examination that young Philip simply might have missed seeing Steve and Lynne as they rode by (as he had failed to registe
r Richard Gellatly, Bryan Glover, Tom Gillette and others who were on the road during his journey home). He accepted as fact that Philip and Richard left the bridge at the same time. He did not question police estimates of the times it would take to walk or bike from the bridge to the base. If he had, the entire edifice of the prosecution timing theory would have come crashing down.

  Glenn Hays’ work on Saturday, September 19, was not over yet. He still had to orchestrate the performance of one more major child witness. And, at times, Butch George’s performance was shaky at best.

  As he walked past his friend sitting in the prisoner’s box and made his way to the witness stand, Butch must have sensed his fast tongue and bravado—the survival skills he had learned in the playground—might not be enough to save him in the ornate chamber of the courtroom. It was one thing for Butch to take Bryan Glover’s bike without asking or borrow money from a friend without paying him back. It was quite another to lie one’s way through a trial.

  Butch barely made it through the usually uneventful swearing of the oath. “Do you know what happens to people when they don’t tell the truth?” the judge asked perfunctorily. Even the youngest children had passed this test without too much strain.

  “Yes, I guess so,” came Butch’s surprisingly tentative reply.

  “What do you think happens to people?” Justice Ferguson queried.

  “My dad told me something about that and I forget now.”

  “You forget,” said the judge. He turned toward the prosecutor. “He doesn’t seem to quite appreciate the nature of an oath and what the consequences are.”

  “I would like to see him sworn, my lord, if he can be,” pleaded Hays, knowing full well the importance of Butch’s testimony to his case. It was bad enough the judge at the preliminary hearing did not think Butch had enough of an understanding of the oath to have him sworn in July. Hays could not afford to lose Butch as a sworn witness at trial.