Until You Are Dead (updated)

by Julian Sher

  Hays handed him a picture taken by Erskine that showed part of Lynne’s bare leg and what looked like a dark mound, hole or impression hidden amidst the leaves and twigs. “Here was the outline of the foot,” Sage explained. “This leaf obscures the actual impression. A very good impression of the instep and the heel.”

  Sitting in the courtroom listening to his fellow officer testify, George Edens, the man who actually found Lynne’s body, could not help but squirm. After all, he too had stood guard over Lynne’s body for four hours. Sage had not pointed out the footprints to him, and he was startled by Sage’s detailed descriptions. “I was rather surprised,” Edens said later. “He seemed to have seen more than I saw.… I couldn’t validate any of it, really.”

  Edens recalls that he noticed “a kind of a smoothing in a little area” that could have been flattened from a footprint. “But I never drew any conclusions. I didn’t associate it [with] any identified type of shoe or a tread.… I even had a bit of trouble associating it with a footprint. I thought, ‘I’m not sure.’”

  Wisely, the Crown never asked George Edens when he was on the stand to describe what he saw next to Lynne’s feet. Nor did Glenn Hays ask the other searcher who took the stand, Lieut. Joseph Leger. There were several OPP officers hovering around the body for hours, but only one of them, Sgt. Charles Anderson, made a passing reference to footprints on the stand: “I saw two footmarks … immediately west of the deceased’s body. They were marks in the earth.” Hays never pushed him for details. Dr. Brooks had also said he spotted “two imprints of two shoes or boots … about six inches away from the deceased’s feet.”

  Sage himself testified that he told three officers about the footprint, but Hays never asked police to corroborate this statement. Perhaps the Crown attorney knew that the word “footprint” did not appear in any police report.

  Frank Donnelly was understandably suspicious of Sage’s last-minute revelation. If Sage’s sighting had been so eye-popping, why did he not testify at the preliminary? Donnelly did his best to undermine the flying officer’s credibility. He began by asking him to confirm the depth of the print.

  “Two to three inches,” Sage said without hesitation.

  “Well now, I suggest that Corporal Erskine said it had a depth of half an inch,” Donnelly retorted.

  Sage had no explanation for the difference. “I kneeled down in the presence of other people and observed it,” he said.

  How then, Donnelly wanted to know, did he explain the fact that he failed to spot a print next to the right foot? (Dr. Brooks claimed to have spotted it, and OPP expert Erskine even considered the mark next to the right foot to be a little clearer than the mark on the left.)

  “Did you study or observe the print below the right foot?”

  “No … I did not notice it.”

  “Did you not check it to see if there was a similar imprint?”

  “No.”

  “What was the shortest distance between the marks?”

  “I would say about twelve inches,” Sage said, never making clear how he knew the distance to a mark he had just claimed he didn’t notice.

  “What branch are you in, in the service?” Donnelly asked pointedly.

  “I am [in the] Telecommunications Office.”

  “Does that include the study of marks such as these?”

  “I wouldn’t say so, no.”

  Donnelly had done his best to control the damage done by Sage’s claim of a crepe-soled footprint. But Steven’s lawyer could have inflicted a lot more damage on Sage’s credibility if he had the flying officer’s original police statement. On June 26, at 10:12 a.m.—just fifteen days after so carefully scrutinizing the footprint next to Lynne’s body—Sage swore out a detailed statement in front of Graham and Trumbley. He talked about spotting Lynne’s underwear thirty-five feet away, northeast of her head. He mentioned her shoes, her socks, her blue shorts and her red headband. But not a word about footprints.

  Years later, asked to explain this disquieting omission, Sage was perplexed. “I can’t answer that, I don’t know. I guess I wasn’t asked.” Hank Sayeau, who distinctly remembers Sage protecting the footprint at the scene of the crime for fear that someone would trample over it, says he “cannot fathom” why none of the existing police reports refer to the prints.

  But Steve’s lawyer knew none of this information. Frank Donnelly ended his rebuttals to Hays’ witnesses the same way he began—with one hand tied behind his back, largely unaware of what most of the witnesses had told the police during the months of the OPP’s investigation.

  19

  WITNESSES FOR THE DEFENCE

  “May it please Your Lordship and gentlemen of the jury, it is now my intention at this point to call certain evidence on behalf of the accused.”

  Frank Donnelly rose on Friday afternoon, September 25, to address the jury. For nine days, jurors sat through fifty-nine witnesses and seventy-six pieces of evidence for the prosecution. “The number of witnesses called on behalf of the defence will be very, very much fewer than the lengthy number of witnesses called on behalf of the Crown,” Steven’s lawyer said.

  Donnelly’s first witness was Joseph Calvert, meteorological instructor at the RCAF station who kept records of rainfall. It was not as odd a choice as it may have first appeared to the jurors. Calvert said the last precipitation before Lynne’s disappearance occurred on June 1, with .01 inches of rain “as if a few raindrops had fallen, that is all.”

  “What about the 2nd of June?” Donnelly asked.

  “No rain whatever.”

  “What about the 3rd of June?”

  “No rain at all.”

  “And the 4th of June.”

  “No rain whatsoever.”

  “And the 5th of June.”

  “None whatsoever, sir.”

  “And the 6th of June.”

  “None whatsoever.”

  “And the 7th of June?”

  “None whatsoever.”

  “The 8th of June?”

  “None whatsoever.”

  “And the 9th of June.”

  “None whatsoever.”

  The repetition made Donnelly’s point: the ground near the bush was much too dry in the first week of June to leave any traces. The bike tire tracks found in the bush laneway in all likelihood were made at least a week before Lynne was killed. In his cross-examination, Hays seemed to concede the earth needed to have been wet for tracks to have been made, so he got the meteorologist to explain that his measuring station was three-quarters of a mile from the base.

  “Then it could be raining in Lawson’s bush and not where you are?” Hays asked.

  “Absolutely, sir,” Calvert said.

  Even if the bike tracks were old, Donnelly also wanted to explain why they might have looked as if they came from Steve’s bike. He brought Leslie Spillsbury, a friend of Steve’s, to the stand to tell jurors what the boys did one week before Lynne’s murder.

  “We went into the lane on the north side of Lawson’s bush. At the far north, we built a tree fort,” Leslie recounted. The boys parked their bikes at the corner of the bush.

  Too smart a lawyer ever to miss a chance to score a point, however feeble, Hays asked Leslie under cross-examination if it was true that Steve sometimes went to Boy Scouts. “You had a little instruction on knots there, isn’t that part of the Boy Scout training?” he suggested.

  “Yes sir,” the boy answered.

  Donnelly also wanted to undermine Jocelyne’s credibility, since her story of a secret date with Steve to look for calves in the bush was so key to the prosecution’s case. Gary Gilks, a classmate of Jocelyne and Steve, told the court that Jocelyne approached him with the idea of a date in the bush in the weeks before Lynne disappeared. “Maybe we could go back and find some calves back in the bush,” Jocelyne told him.

  The Crown had called three medical doctors: a pathologist, an air force medical officer and a general practitioner. None of them was an expert in the areas of eithe
r the digestive system or rape. Berkely Brown, the sole defence medical expert, had knowledge of both. He had graduated from the University of Western Ontario in 1940, spent several years in the army during World War II and then four years in postgraduate work specializing in internal medicine and the digestive system.

  Brown suggested that on average, the stomach of a twelve-year-old girl would take three to four hours to empty and even an hour more if the food was poorly chewed. But his main point was to emphasize the variables that influenced digestion, something Dr. Penistan barely mentioned. The stomach is a muscle, Brown explained, so disease, fatigue or emotional stresses affect it. Other factors included type of food and how well-chewed it was. A meal with a large amount of fat might take eight hours to digest, he said.

  Donnelly then asked the key question—one upon which the entire case turned. “What do you say as to the practicability of attempting to fix the time of death by an examination of the stomach contents?”

  “Well, I think that it is generally held by myself and experts in the field that [it] must be done with great caution because there are such wide variations and so many factors can enter into the situation,” Dr. Brown replied, a point that was a sound opinion back in 1959 and one that medical science today accepts as an indisputable fact.

  Donnelly then moved to the second major medical issue—the sores on Steve’s penis. Brown explained that during his stint in the army overseas, he examined “many thousands” of penises. He had seen similar lesions; he discounted the importance of the alleged size of the sores because “stretching the skin would enlarge the lesion as well and make it appear larger than it actually was.”

  Could such sores be caused by sex with a young girl, Donnelly wanted to know. “I would think that it would be highly unlikely that penetration would produce a lesion of this sort,” Brown offered. “It is interesting that the penis is rarely injured in rape, to begin with.” When it is, he continued, the injury is usually to the head of the penis. Since the head is larger than the shaft, the shaft does not bear the same traumatic burn as the head; and unlike the skin on the tip of the penis, which is fixed and more likely to tear on heavy pressure in a tight opening, the skin along the shaft is durable and mobile.

  What’s more, he said, the hymen and surrounding genital area of a twelve-year-old girl would be “soft tissue” and thus “highly unlikely” to cause a burn. Instead, Brown concluded, the injuries on Steven’s genitals were “consistent with masturbation.”

  Crown attorney Glenn Hays knew he had to destroy Dr. Berkely Brown on the stand. He had to demolish his testimony, even if that meant exploring sexual mores in a more explicit manner than jurors in 1959 were accustomed.

  Would there not be “terrific pain” associated with the injuries on Steve’s penis, thus ruling out masturbation?

  Not necessarily, Brown insisted, arguing that “during moments of excitement” pain does not always register.

  “You would expect that a subject would continue with masturbation to where he would bring about these terrific-sized lesions?” Hays continued, somewhat incredulous.

  “That is my experience,” said the doctor.

  Would not the friction of a rape have an effect on the skin of the shaft since it is “tethered to that collar” of the penis head, Hays asked.

  “I don’t agree,” Brown maintained. “The area where those lesions are described is immediately behind the head and the head has such a larger diameter. I don’t see how friction could injure it.”

  Would not the doctors who examined Steve be in a better position to describe the wounds of Steve’s penis, Hays asked.

  “It depends on their past expertise, of course,” Brown said, maintaining that his experience during wartime was more relevant than Brooks’s quiet tour of duty in peacetime air force bases.

  “What in the world would the difference be [between] the sexual act in Europe [and] in Canada?” Hays wondered.

  It was too much for a staid courtroom in small-town Ontario. “I think we should draw a line here,” the judge interrupted. Brown quickly explained that men overseas, deprived of girlfriends and wives, were more likely to “indulge in abnormal practices” and “there would be cases of rape.”

  Hays challenged Brown’s contention that using stomach contents to determine time of death was not reliable. If stomach contents were so unreliable, why were they used so often in courtrooms, the Crown attorney wanted to know.

  “Post mortems are a fairly crude examination, non-scientific examination,” Brown answered with more forthrightness than most medical experts usually showed in court. It was perhaps too frank for the judge. Justice Ferguson jumped in to ask if autopsies were not performed precisely to determine the cause and time of death?

  “Well, ordinarily the times of death are not the concern of the pathologist, except in the legal sense,” Brown said, in one of the most understated and tragically ignored statements during the entire trial. It cut to the heart of how the police and the prosecution had misused Dr. Penistan and his pretence of precision.

  For ten days, Steve’s mother had sat behind her son as a spectator in the courtroom, wringing her hands, glaring at the police witnesses, whispering words of encouragement to her child seated in the prisoner’s box, listening as doctors discussed intimate details about his body. Now, on Saturday afternoon, September 26, it was Doris Truscott’s turn to speak.

  She walked up to the witness stand with the same poise that had carried her through her summer ordeal, refusing to let any emotion sneak across her face. She calmly told her story of the chaotic week that started with Lynne’s disappearance and ended with her son’s arrest. She recounted how, on Tuesday, she asked Steve to rush to the store to get some coffee. “He came into the house and showed me he ripped his pants,” she said. She described how he went out to play, returning home at 8:30 p.m. to babysit his younger brother and sister. The next morning, she threw a load of laundry into the washer.

  “How often do you wash?” Frank Donnelly asked.

  “Two or three times a week,” Doris answered.

  “Is there any reason why you wash so often?

  “Well, with four children, you do have a lot of dirty clothes,” she explained.

  If she had a dryer, why were Steven’s jeans still on the line by Friday evening, Donnelly asked.

  “The band at the top was still damp and the pocket lining was wet, and I just threw them over the line,” she said.

  Finally, Donnelly went into the seemingly minute details of Doris’s laundry methods. He had prepared this terrain with his cross-examination of the government biologist Elgin Brown, who told the court that hot water and the alkali in most soap would fix any blood—even microscopic traces—in clothing. So if there was any blood in Steve’s garments, it should have been picked up by later tests, even after Doris cleaned Steve’s clothes in her wringer washer.

  “What type of water did you have?” Donnelly asked.

  “Hot water.”

  “How hot?”

  “Well, it is hot enough that I have to use a stick when I lift the clothes out.”

  “And what would you use in the water?”

  “I always threw a bar of Sunlight soap in and a bit of detergent.”

  “Your witness, Mr. Hays,” Frank Donnelly said.

  Glenn Hays quickly zeroed in on what the police considered the most direct link between Steven’s mother and the crime: her handling of his jeans. “Mrs. Truscott, that was a pretty small tear for Steven to draw to your attention, wasn’t it?” Hays asked.

  “His pants were new,” the mother replied.

  “Then the next Friday night, these same pants were the only item of clothing hanging on the clothesline in the basement when the police came in with the search warrant?”

  “At the time—at that end of the line, yes. At the farther end there were more clothes.”

  “And you pointed the red jeans out to the police as being the clothing that Steven had been wearing on t
he Tuesday night?”

  “Yes.”

  “And yet, Mrs. Truscott with that tear in them and its being in your mind, why did you not tell them about the tear at that time?”

  “I guess because I was upset and I never thought of the tear.”

  “Then a full written statement was taken from you June 20th.”

  “Yes.”

  “And you never mentioned that tear in that statement either, did you, Mrs. Truscott?”

  “No, I didn’t. I never thought about it and I wasn’t asked.”

  Hays moved on to another example of what he saw as a mother’s attempt to cover for her son. When the police took Steven to the bridge on Wednesday after Lynne’s disappearance, to show them where he had seen the ′59 Chevrolet, his mother had volunteered her own interpretation of what her boy saw.

  “You said, did you not, that probably what Steven meant was that it was a sticker on a car and not a licence plate that he saw?”

  “I didn’t say ‘probably.’ I said ‘it could have been,’” Doris responded.

  “Then Mrs. Truscott, wouldn’t you agree that the reason for your statement was that … it was clear to you it was impossible to stand there at the bridge and tell the colour of a licence plate on the highway?”

  “No, I wouldn’t.”

  “Why did you put in the suggestion that it might have been a sticker?”

  “Because we have one on the back of our own car and I have noticed them on several cars. From that distance, it could very possibly have been.”

  “You felt a sticker would be easier seen than a licence?”

  “No.”

  “Oh, you didn’t. What reason would you have to think that Steven had meant a sticker when he said licence?”

  “It just could have been,” replied Doris Truscott.