Until You Are Dead (updated)

by Julian Sher

  “What were your findings?” Hays began, after Brown explained that he’d examined them on Monday, June 15, two days after the police took them from Steve.

  “They had a very heavy deposit of feces in the seat area,” Brown said. “Investigations revealed that the yellowish brown discolouration in the fly area contained spermatozoa and traces of blood.”

  “How long had it been there?” Hays asked regarding the sperm. “Can you give an opinion of that?”

  “No sir, I am unable to tell the length of time that had been there,” the scientist replied.

  That did not satisfy the prosecutor. “Can you give any estimate that it had been there for any period of time whatever?” Hays pushed.

  But the government expert would not bend science to fit the prosecution’s needs. He explained that the length of time sperm could be present “depends on a number of things,” such as washing, bacteria in a moist area, dirt and the warmth of the body. “I have no way of determining … the probable duration of the deposit,” Brown concluded.

  Hays was not about to give up. If the biologist was not willing to be specific about Steve’s sperm, perhaps he would be open to generalizations. “There is a certain well-known period of time in which these sperm may survive?” the prosecutor asked.

  “Better than a year,” came the reply.

  Hays should have quit while he was ahead.

  The biologist went on to describe his other findings, or rather lack thereof. He found bloodstains on Lynne’s shorts and on her left shoe, as well as “heavy blood staining” on her undershirt near the arm openings. On Steve’s shirt, jeans and shoes, however, Brown found not a drop. No blood, no pubic hairs, no hairs from anyone else, nor any traces of foreign fibres.

  What Brown did find underneath Lynne’s fingernails was a small quantity of debris. “I found that there were traces of blood present in the debris. There were some very short, white synthetic fibres and what appeared to be visible remnants of cells, skin tissues.”

  Hays, hoping to deflect the significance of this discovery—since they indicated an injured or badly scratched assailant—wanted to know if these deposits would normally be found under fingernails.

  “I can’t answer that to say what it was due from,” Brown said.

  Hays was in trouble and Donnelly sensed it. The judge adjourned the court for the day, but when court resumed Friday morning, Donnelly’s cross-examination lasted three times as long as Brown’s original testimony. Eager to milk the government biologist for everything he had to give, Donnelly made it his longest cross-examination of the trial.

  To start, Donnelly wanted to exploit the absence of blood on any of Steve’s outer clothing. He wanted to make sure that the jurors understood that the biologist did not even find traces of blood that would have been invisible to the human eye.

  “Testing is very sensitive,” Elgin Brown explained. “Just very small traces, small amounts can be detected.”

  “The size of a head of an ordinary straight pin?” Donnelly asked.

  “That could be detected.”

  Knowing the prosecution might try to make an issue of the fact that Steve’s mother washed his clothes the morning after Lynne disappeared, Donnelly also asked the biologist about the effects of doing the laundry. “It may remove the visible evidence of the blood,” he asked, “but you can still detect the blood?”

  “You may,” Brown answered. He told the jurors that washing clothes in hot water helps preserve blood, while cold water disperses the blood traces.

  For good measure, Donnelly also displayed various shirts and pants the police seized from Steve’s room. The laboratory expert confirmed many of them were torn, ripped or showed “general fraying.” To deflect the prosecution’s theory that the tears in Steve’s red jeans were proof he dragged Lynne over the barbed wire fence into the bush, Donnelly wanted the jurors to know holes and rips were common in most of the teenage boy’s clothes.

  Of all the pieces of Steve’s clothing, it was his soiled underwear that was fixed in the minds of the jurors, Donnelly knew. Taken from Steve on Saturday, June 13, there was no proof that the feces-stained garment with traces of sperm was the same pair of underpants worn by Steve on Tuesday, June 9; indeed common sense would dictate otherwise. Still, Hays had tried to suggest the sperm was proof that Steve raped the girl, so Donnelly had to show this idea was scientifically unsound.

  Under persistent probing, biologist Elgin Brown agreed that normal washing would remove blood and spermatozoa. “The presence of spermatozoa indicates it hasn’t been washed since the deposit of spermatozoa.” Brown also said that bacteria would attack and kill spermatozoa.

  “How quickly will bacteria destroy spermatozoa under the most favourable circumstances to the bacteria?” Donnelly wanted to know.

  “In a matter of hours,” Brown said.

  “I suggest to you a pair of shorts worn by a young man on a hot, humid day … would be ideal conditions for the spermatozoa … to be destroyed by bacteria. What is your opinion as to that?”

  “It is the type of condition in which bacteria thrive,” Brown said.

  The defence counsel also asked Brown to give the jurors more details of what he found in Lynne’s fingernail scrapings. The biologist repeated that he discovered traces of blood and remnants of “epithelial cells”—cells covering the outer skin.

  “Is it a clear indication to you that this blood came from a scratching or scraping with those fingernails?” Donnelly asked.

  “It came from contact with blood,” Brown said, choosing his words carefully.

  “Could it come from contact with blood on her own body?” the judge intervened.

  “Certainly, Your Lordship,” Brown replied.

  But Donnelly was not about to let the judge ruin his line of argument. “The presence of blood in those skin cells puts a different complexion on it, does it?” he asked.

  “In my opinion, the person scratching themselves would be expected to pick up a certain amount of skin cells and not necessarily blood,” Brown conceded.

  Prosecutor Glenn Hays had to recoup his losses. In his re-examination, he asked Brown if the debris he found under Lynne’s nails “could be caused by scratching a mosquito bite?”

  “Vigorous scratching could result in such a deposit,” Brown hypothesized.

  Justice Ferguson found this line of thought a bit of a legal stretch: “We haven’t heard anything about mosquito bites in this case, or mosquitoes,” he pointed out.

  Hays’ tactic was obvious. The Crown prosecutor had to downplay any suggestion that the blood underneath Lynne’s fingernails came from her assailant. The jurors knew that Steve had no significant marks on his face, neck and chest. None of the doctors was willing to say definitively that the seemingly ordinary scratches on his arms or legs came from a struggle.

  Curiously, no one asked Brown what type of blood he found under her nails or if there was even enough to test. If the blood was Type A—the blood type that both Steve and Lynne shared—a test would be inconclusive. But if the blood under her nails came from a different blood group, it would point to someone other than Steve as the killer.

  There was no DNA technology available in 1959—a shame, because if the blood under Lynne’s nails did come from her assailant, a simple test could have determined Steven’s innocence or guilt once and for all.

  18

  THE POLICE STORY

  Police testimony often provides the framework for the prosecution in a long trial, connecting the dots in a complicated case. Aside from Inspector Graham and Identification Officer John Erskine, a dozen other OPP and air force police personnel trooped before the jurors during the course of the trial.

  Prosecutor Glenn Hays used several of the officers to punch holes into Steven’s claim that he could see a car at the highway from over thirteen hundred feet away at the bridge. Constable Trumbley recounted how he drove the boy to the bridge and asked him to point out where he was standing when he saw the car pic
king up Lynne. “I then walked over to the same point. I observed traffic going up and down Number 8 Highway. I still couldn’t observe any licence numbers.”

  RCAF police corporal Keith Lipscombe, who accompanied Trumbley, told Hays the same story. “I saw automobiles going by, but I couldn’t see any licence numbers.”

  But who had said anything about licence numbers? Steven had said he saw something yellow or orange on the bumper, possibly a licence plate. He never claimed he could read the numbers on the plate.

  Trumbley also said that while he was standing on the bridge, a car passed by on the county road and made its way northward to the intersection where Steve said he had left Lynne. “I fixed my eyes on the licence plates and when the car stopped at Highway Number 8, I couldn’t see the licence plates at all,” he told the jurors. Trumbley was being less than complete in his account. According to his internal notes in the police files, he could see something on the rear bumper when the car stopped at the highway—if only briefly: “The licence plate appeared as a very small dot,” he wrote. Only when he turned his eyes away and then looked back at the car could he no longer pick out the plate. Inspector Graham’s official report to his superiors about Trumbley’s impromptu test was also slightly different: “With this colour combination, a black spot (the licence) could be seen.” These police notes never were revealed in court.

  The testimony of the various police officers also offered an intriguing insight into the fallibility of human memory. In several instances, two police officers in the same spot at the same time portrayed events or conversations differently.

  Flight Sgt. Frank Johnson of the RCAF sat in the back of the OPP cruiser while Const. Donald Hobbs questioned Steve on the Wednesday morning after Lynne went missing. Hobbs remembered Steve telling him he left the school with Lynne “between 7:00 and 7:30.” Johnson recalled Steve giving a much more precise time of between “7:25 and 7:30.”

  The next day, Hobbs was joined by Sgt. John Wheelhouse as he interviewed Steven at school. Wheelhouse testified that Steven told them Lynne “was mad at her mother because she couldn’t go swimming.” Hobbs had made no mention of that fact. Wheelhouse also said Steven told the men whom he saw at the river and how long it took him to make the trip. Hobbs said nothing about these details in his testimony. “I am not out to make a note of every word the boy said,” he explained, when asked by the defence to explain the omissions.

  In his cross-examinations of the police officers, Donnelly pursued a common theme: the boy they drove around the base, questioned, probed and interrogated over three days was unflappably at ease and accommodating.

  Hobbs described Steve as “quite co-operative.” Another officer said he was “quite helpful, intelligent.” Trumbley agreed with Donnelly that the boy showed “no signs of nervousness.”

  “Steven’s story was the same to each of the officers, was it not?” Donnelly asked Sergeant Johnson.

  “Yes, basically the same,” the officer confirmed.

  “And he appeared quite calm and normal, did he?”

  “Yes.”

  With Cpl. Hank Sayeau, Donnelly had one of his testier exchanges. He began by questioning the rigour with which the police measured the all-important distances along the county road. Sayeau admitted he simply used his car speedometer.

  “You could be out considerably on that?” the defence lawyer asked.

  “I could be out.”

  “I suggest to you that you might be out over 200 feet on your measurement from the highway to the bridge?” Donnelly said, highlighting the crucial distance at which Steve claimed he could spot a car.

  “I might be,” Sayeau conceded. He was. Donnelly produced a surveyor map that showed the police were off by 284 feet.

  Donnelly then showed Sayeau photographs of the bicycle tracks in the dry, cracked earth. At the preliminary hearing, Sayeau had readily agreed with Donnelly that the tracks were not fresh, but had been made “certainly before the 9th of June.”

  “These bicycle tire marks shown in the picture were made when the ground was soft,” Donnelly said, simply repeating what he and Sayeau had agreed upon in July. “What do you say to that?”

  “I don’t know,” the OPP man now replied.

  “Are you able to express an opinion on the length of time these marks were there?”

  “No, I am not,” Sayeau answered. Now in front of jurors, the corporal, sadly, was much less forthcoming.

  Donnelly also pushed Sayeau on the mystery of the golden locket Sandra Archibald found on June 19, ten days after Lynne disappeared. The defence lawyer asked if a large number of police searched the area where the locket was found before the 19th of June.

  “Yes sir,” Sayeau said.

  “In the area where the locket was found?” Donnelly repeated for emphasis

  “Yes.”

  “And what is your opinion as to whether the locket was there when you made the search?”

  “They didn’t see it.”

  “Are they in a position to say whether it was there or wasn’t there?”

  “I feel if they knew it was there, they would have gathered it,” Sayeau said with astonishing frankness.

  “Mr. Donnelly,” Justice Ferguson interrupted. “Let’s be reasonable. You can search an area, you lose something, you miss it and you search again and find it. I see no relevancy in that.”

  But there was enormous relevancy in Sayeau’s comment that the police “would have gathered” the locket if they knew it was there. If the police did not find the locket in the careful search of the area between June 11 and June 19, it was possible someone else—most likely the killer—had discarded it there after Steve was already in jail. With his dismissive comments, the judge had told the jurors, in effect, to ignore what might have been an important piece of evidence.

  Ever astute, prosecutor Glenn Hays tried to have it both ways with the locket. Constable Donald Hobbs told jurors that Steve told him Lynne “was wearing a gold chain necklace. There was a heart with a RCAF crest in it.” Hays suggested to the jurors that only if the boy had ripped the necklace from his victim would he have known what was inside the locket. Except that since the locket was made of Plexiglas, presumably the RCAF crest was visible through the plastic cover. That probably explains why, according to Hobbs at the preliminary hearing, Steve had told the police the locket had an RCAF crest on it, not in it—an important distinction that Hays kept from the jurors.

  On the other hand, the prosecution also realized the locket raised more questions than it answered. If, as Hays implied, Steve took the locket from his rape victim as some sort of souvenir and then tossed it away out of fear or recklessness, why did the police not find it for more than a week?

  That conundrum perhaps explained why Lynne’s father, Leslie, was now reluctant at trial to confirm the locket belonged to his daughter in the first place.

  “Lynne had one similar to it” was Harper’s vague reply when defence lawyer Frank Donnelly asked him about the necklace.

  “You identified that definitely, earlier, did you not?” Donnelly pursued.

  “I don’t recall,” the flying officer said, asking the jurors to believe that a father would not remember identifying a piece of jewellery treasured by his slain daughter. In fact, as Donnelly pointed out to the jury, Leslie Harper had no such doubts at the preliminary hearing in July—even repeating his certainty when the judge asked him to identify the locket.

  “All I am asking you is: did you or did you not make that answer on the 13th day of July?” Donnelly continued.

  “I do not recall, sir,” Harper responded.

  Justice Ferguson seemed to sense that the witness was prevaricating: “Has anything occurred since July 13th which would shake your assurance that it is your daughter’s locket?”

  “No, my lord,” Harper said, struggling to explain, “except there are no markings on it to distinguish it from one of many. It could be in the possession of other people.”

  “You have reasone
d yourself out of it. This is what occurred?” the judge said, offering Harper a way out.

  “More or less, my lord.”

  The locket was not the only piece of physical evidence over which the lawyers sparred in an effort to try to pin down where Lynne was killed. One curious anomaly was Lynne’s blouse: there was a fairly large piece from the front—nine by ten inches—that had been cut out and gone missing. The prosecution argued Penistan probably was responsible for that when, during the autopsy, he snipped off the knot in the blouse under Lynne’s neck. Unfortunately, Penistan himself denied the possibility. Donnelly suggested to the jurors that if such a large piece of the blouse was not found in the autopsy room or in the bush, Lynne must have been killed “at some other point—in an automobile … somewhere.”

  To counter that theory and show that Lynne was murdered in the bush, Hays entered into evidence a red button—matching one from Lynne’s blouse—that police said they found next to her body. Donnelly tried to undermine this by securing from OPP officer Sayeau the embarrassing admission that the OPP only retrieved the button the day after they removed Lynne’s body from the bush; Sayeau insisted he saw the button when the body was there but forgot to take it “because of all the distraction.”

  Glenn Hays’ final witness was not a police officer, but the Crown treated him as if he were one. When Flying Officer Glen Henry Sage walked up to the witness box on Friday, September 25, the jurors probably could only vaguely recall that nine days and many witnesses ago, OPP identification officer John Erskine led off the prosecution’s case. If the wide gap between the two witnesses was intentional, it was a stroke of genius; if it was not, it was a stroke of legal luck. Hays certainly would not have wanted jurors to remember that a police expert had dismissed the marks near Lynne’s feet as “indistinct” because Flying Officer Sage was going to become the prosecution’s new expert on footprints.

  Sage had been the officer in charge of the small band of airmen who found Lynne’s body. He stayed at the crime scene for several hours and helped the police protect the site. “Just about two or three inches from her left heel, there was this footprint,” he told the court. “I noticed it right away and I bent down to scrutinize it very carefully. And this footprint, I got the impression there, after looking at it quite carefully, that it had been caused by what I know as a crepe-soled shoe.”