by Julian Sher
Justice Ferguson made another attempt. “Do you go to church, young man?”
“Well, not regularly,” the teenager replied.
That didn’t work. So the judge gambled with a simple question: “Do you understand you’ll be punished if you don’t tell the truth?”
“Yes.” For some reason, that answer seemed to satisfy the judge and Butch George was at last sworn as a witness.
The trial would be Butch’s third formal attempt at getting his story in order, but his testimony would be just as inconsistent and confusing as the tales he told in his police statement and at the preliminary hearing. Hays began by slowly taking Butch through his search for his friend Steve on the Tuesday evening Lynne vanished.
“I went down to the river … trying to find Steven,” Butch recounted. “And down by the woods there I saw Jocelyne Gaudet. And I asked her if she had seen Steve.”
“I don’t want you to say anything that was said at all,” Hays explained, moving in quickly to cut off any hearsay testimony. As with Philip Burns, Hays also wanted to silence any embarrassing revelations Butch might make about Jocelyne, telling him “she was looking for Lynne”—not Steven. Hays thus made sure the jurors would never hear anything about that.
“Had you seen Steve at any time up until you started for home?” the Crown prosecutor continued.
“No.”
“Did you see him any time on your way up to the station, going home?”
“No.”
The message to the jury was clear. If Steve’s best friend went up and down the county road and could not find him, where else could he have been but in the bush with Lynne? In a curious way, though, Butch’s admission also undermined the prosecution’s case. Butch had spent much of Tuesday evening and Wednesday spreading the story that he had seen (or heard about) Steve taking Lynne into the bush. Steve’s angry reaction to that story would form much of the prosecution’s proof of the boy’s guilty conscience. But Butch was now saying under oath that he never saw Steve in the bush.
Butch told the court he did not meet his friend on Tuesday evening until he dropped by Steve’s house around 8:45. He testified the following conversation took place:
“I heard that you had given Lynne a ride down to the river,” Butch said to Steve.
“Yes, she wanted a lift down to Number 8 Highway.”
“I heard you were in the bush with her,” adding a detail he had not reported at the preliminary.
“No, we were on the side of the bush looking for a cow and a calf. Why do you want to know?”
“Skip it and let’s play ball.”
Hays wanted to plant in the jurors’ minds that as early as Tuesday evening, Steve was admitting he was near the bush with Lynne. But Hays wisely never asked Butch to spell out from whom he had “heard” this juicy news that Steve was in the bush with a girl. The prosecutor could only hope the jurors would not catch the gaping flaw in the story: why didn’t the police find out who told Butch they saw Steve, and why didn’t the prosecution produce this vital eyewitness? Because, of course, such a person never existed.
Hays quickly moved on to Butch’s alleged chat with Steve the following day, on Wednesday. In many ways, this story was Butch’s most important contribution to the prosecution case. It was crucial that Hays convince the jurors there was a conspiracy among Steve’s friends to protect him. Hays knew the defence would present two boys—Dougie Oates and Gord Logan—who insisted they saw Steve and Lynne cross the bridge. He had to undercut the defence’s case ahead of time by suggesting the boys were covering for Steve. The problem for Hays was that even Butch seemed shaky about this all-important conspiratorial plot. Steve denied the meeting ever took place, and there were no other witnesses besides Butch.
“Now, after school, Arnold, did you have [a] conversation with Steven?” the prosecutor began.
“Oh, I don’t recall having a conversation with him.”
Hays was irritated; this was not what he was expecting Butch to say, so he tried again: “When did you next then have a conversation with him?”
“Wait,” Butch called out, his memory seemingly restored. “I did have a conversation with him.”
“When was that?”
“Let us see,” Butch said in an uncharacteristically formal language that made it seem as if he was rehearsing practised lines. “It was in the evening, I think.”
According to Butch, Steve told the police he had seen Butch down by the river as he went by with Lynne on his bike. Steve realized later it was Gord Logan he had seen, not Butch. “He said that the police were going to go down to my place to check up, so I agreed that I would tell them I had seen Steve,” Butch explained.
When would Butch tell this lie to the police, Hays asked.
“That night,” Butch insisted, “because the police came to our place and asked for me.”
Again, Hays wisely did not push his witness for details about his alleged Wednesday evening encounter with the police. Nor did he ever produce an OPP officer to testify about such an event. The police files contained no record of such an interview. The first time they questioned Butch, according to the police notes, was not until Thursday, the following day.
If that was the case, Butch was even lying—or mistaken—about when he lied to the police.
Frank Donnelly decided he could use Butch to his advantage. “After supper you were looking for Steve?” the defence lawyer asked at the start of his cross-examination.
“Yes,” Butch replied.
“At any time, from the time you started to look for him until you found him at his home … that evening, did you see him anywhere?”
“No sir.”
“You hadn’t seen Steven near the bush at all that day?” Donnelly reiterated a short time later.
“No,” Butch agreed.
Donnelly then asked Butch if he had seen any sign of his friend when he approached the laneway leading into the bush and met Jocelyne.
“Did you see his bicycle anywhere?”
“No.”
“If this bicycle had been lying on the side of the road, you would have seen it, wouldn’t you?”
“Yes.”
Donnelly was trying to spin the prosecution theory on its head. The Crown attorney had suggested that if Butch did not see Steve, that meant Steve was in the bush. Donnelly was suggesting if Steve did go into the bush, Butch should have seen him go there.
But Donnelly knew he had to undermine Butch’s testimony about the alleged plot to lie to the police to protect Steve. Butch had told the court that when he chatted with Steve on the Tuesday evening Lynne disappeared, Steve said he was near the bush with Lynne “looking for a cow and a calf.” But Donnelly pointed out there had been no reported talk about calves in the bush when Butch first told the story at the preliminary hearing, held soon after the events in question.
“I forgot.”
“You forgot,” Donnelly said. “Why didn’t you tell us that in July?”
“Well, I was nervous then,” Butch tried to explain. “The first time up here in court.”
“But your memory would be a whole lot better two months … ago than it would be today, wouldn’t it?”
“Well, I stated that statement while I was—during that time,” Butch mumbled somewhat incoherently.
Donnelly, with the instinct of a good trial lawyer, sensed something was afoot and played a hunch: “You have gone over this with the police since then, have you?”
Hays, his radar detecting danger here, quickly interrupted: “He didn’t say that.”
But Donnelly barrelled ahead: “What did you say a moment ago about the police and a statement?”
“Well, they, like parts of my statement had been lost and they gave me another sheet,” the boy offered.
“When?”
“That would be about two weeks ago.”
“And how often did you read that over and study it before you came to court?”
“Oh, about ten times.”
“You went ov
er it about ten times and you couldn’t memorize it in ten times?” Donnelly said a few moments later.
“I wasn’t trying to memorize it.”
“Why were you going over it so often?”
“Trying to make sure what I said, what I was going to say.”
“And you didn’t study your story too well, that is the reason you account for the difference. What is the reason why you tell a different story here today?”
The judge cut Donnelly off at this point and Butch escaped the need to answer.
Hays knew he had to do some serious damage control and he subjected Butch to the longest re-examination any witness had to endure. At times, the attempted rescue sounded almost comical.
“You gave two false statements to the police?” Hays asked.
“To the police,” Butch said.
“Is that what you would call your second statement?”
“That would be my third. Well, that would be after that I would tell them the third statement.”
“After the body was found you gave them the second statement?”
“No, the third one.”
“Is that the true one?”
“Yes.”
Even the spectators at this point thought this was a bit much. Allan Durnin, one of Steve’s classmates, recalls that his father attended the trial regularly. “He told me that every time Butchie was called up to the stand to give some kind of evidence or answer a question, he changed his story.… You know, can this guy tell the truth or can he get his story straight, or is there something wrong with it? Because every time he told a story it was a different story.”
But Hays had a definite purpose in taking his witness through his various lies.
“You say the first two statements you gave the police were false?” he asked.
“Yes.”
“Why did you do it?”
“I just told them I had seen Steve at the river, and when the body was found, I changed my story.”
“When the body was found?” Hays emphasized.
“When the body was found,” Butch agreed.
To the jurors, it must have had an angelic ring of conversion: shocked by a death of a classmate, a conniving boy decides to break ranks with his conspirator and betray his friend to the police.
At least, that was the story Hays wanted the jury to believe. But he and Graham knew there was more to it. Because buried in the police notes was Graham’s handwritten account of Butch’s police interview on Friday morning, June 12, after the body was found. Butch, in fact, continued to tell the police he saw Steve and Lynne at the river. He did not change his story until four days later, not “when the body was found.”
But the jurors didn’t know that.
The Crown prosecutor hoped that Butch and Jocelyne would convince the jurors that since two children looking for Steve could not find him, he must have been off the road and in the bushes murdering Lynne. Hays also had to convince the jurors Steve had enough time to commit the crime.
Two adults at the school, organizing a Brownie meeting, saw Lynne approach Steve. Anne Nickerson testified that she saw Steve “about a few minutes to seven, I would say. I had no watch. I am not positive about my time.”
Dorothy Bohonus, the other Brownie leader, did have a watch. She appeared confused about when Lynne walked over to Steve. At the preliminary, she said, “It was 7:00 or shortly after that she joined him.” At trial, she changed her story: “I would have said it was just before or around 7:00. Not after 7:00.”
Defence lawyer Frank Donnelly asked her to explain the disparity.
“I didn’t have any way of telling the time, but it seemed to me like ten minutes. It could have been longer or less. I don’t know exactly how long it was.” In other words, the adults were guessing as much as the children.
Prosecutor Glenn Hays used the Brownie leaders’ estimates to imply that they saw Steve and Lynne leave for the river sometime between 7:00 and 7:10 p.m. In fact, all the two women were saying was that that was the time Steve and Lynne left their sight, not the time they left the school grounds. “I don’t know where they went after they left me, because they only went a few yards and I dismissed it from my mind,” Mrs. Nickerson told defence lawyer Donnelly.
“You only watched them a matter of a few—”
“—a few minutes.”
“Two or three yards?”
“Two or three yards.”
“And you paid no more attention?”
“I paid no more attention.”
Mrs. Bohonus admitted the same. “What was the last you saw of Lynne?” Donnelly asked.
“When she sat down on the front wheel of the bicycle.”
“Did you see her leave at all?”
“No, I did not.”
“Did you see the boy on the bicycle leave?”
“No sir.”
After Steve and Lynne left the Brownie leaders, they ran into children playing on the school grounds. Hays tried to use some of the young witnesses to enlarge as much as possible the time Steven was away from the school. Twelve-year-old Warren Heatherall’s testimony was typical of Hays’ mixed results.
“What time was that, when you saw them?” Hays asked the boy who had been playing baseball when Lynne and Steve started on their bike ride.
“I am not too sure. I think it was about 7:00,” Warren said.
“Did you see Steven later that night?”
“Yes sir.”
“How much later?”
“About half an hour.”
Hardly enough time to leave the school, commit murder and return. A second baseball player, Stuart Westie, was even less helpful to the Crown. “I can’t be sure, sir, because it all happened between seven and nine.”
Both lawyers also tried to make the most of the memories of the children who saw Steve return alone to the school. John Carew gave Steve the earliest return, at around 8:00 p.m. He was able to fix the time because he remembered chatting with Steve and the other teenagers for about ten minutes, stopping by a friend’s house for another ten minutes on the way home, and then arriving home in time to catch the final ten minutes of Front Page Challenge. The Crown prosecutor did not challenge this story, though he would try to undermine it in his summary to the jury.
“How did Steve appear to you when you saw him there?” Frank Donnelly asked John.
“Well, he appeared the same as he was any other time.”
“He was just his normal self?”
“Yes sir.”
“Did he talk and laugh and joke with the young people there?”
“Yes sir.”
“Were there any visible marks on him that you noticed?”
“No.”
“Was there any sign of blood on him?”
“No,” John concluded.
Lyn Johnston, fourteen, gave a later time for Steve’s return—“about a quarter after eight”—but she, too, confirmed that her classmate seemed normal.
“Did you see any marks or any blood or anything unusual about him?” Donnelly asked.
“No.”
“Did he seem excited at all?”
“No.”
“Flushed up?”
“No.”
Lorraine Wood said she thought Steve arrived “about 8:10 or 8:15.” She too reported he looked “normal” and she saw “no blood or any marks on him.”
To help prove that Steve never made it to the highway with Lynne that Tuesday night, Hays brought in a young boy from outside the base. Teunis Vandendool was a Dutch immigrant who lived with his parents on a farm next to Highway 8, about a mile and a quarter from the Clinton swimming hole. He told the court he biked to the river for a swim on the evening of June 9 around 7:15. He left shortly after 7:30, he said—about the time Steve claimed he had dropped Lynne at the highway.
“Did you see any boy or girl on a bicycle at any time that night?” Hays asked.
“No,” Teunis replied.
Were there any people or a car at the corner o
f the county road and Highway 8, Hays wanted to know.
“No persons at the corner,” he said. “No car stopped at the corner.”
The Crown also hoped that Steve’s friends would convince the jurors he reacted with evasion and anger when asked about Lynne in the days following his bike ride with her. Glenn Hays’ questions focused on the banter on the bridge at the Bayfield River on Wednesday evening between Steve and four of his friends—Butch George, Tom Gillette, Paul Desjardine and Bryan Glover. Paul asked Steve “what he was doing in the woods with Lynne Harper,” Bryan told the court. “He said he didn’t go into the woods.”
“Did they say anything else?” Hays prodded.
“And then he said he just went in there to look for a calf.”
“They say anything else?” Hays asked.
“Not that I recall, sir.”
Hays expected Paul Desjardine, the boy who had initiated the conversation, to deliver more.
“I asked Steve if he had taken Lynne into the woods and he said: ‘I didn’t,’” Paul said.
“And was there another conversation then a few minutes later?” the prosecutor suggested. At the preliminary hearing, Paul could not recall one but his memory apparently improved with time.
“He said he had been in the woods,” Paul said, “looking for a cow and a calf.”
It was Tom Gillette, in the end, who gave Hays what he wanted most—an account of anger from Steve and threats directed against Butch.
Hays prompted his witness. “Did you notice anything about Steve’s manner?”
“He sounded as if he was threatening him,” Tom answered.
It was not much, but it was the best Hays was going to secure from the boys. Four witnesses all told somewhat different versions of the bridge talk. Butch himself testified that he did not recall any angry threats from Steve. Only one boy heard menace in Steve’s words to Butch, and Donnelly moved quickly in his cross-examination to counteract Tom Gillette’s interpretation.
He asked if Steve made any threatening move at all toward Butch, who was ten feet away, under the bridge playing by the river.
“No sir,” Tom said.
Donnelly suggested Steve was just making an emphatic statement. “Steve said, ‘I didn’t go into the bush with Lynne,’ and he made it pretty definite, didn’t he?”