by Julian Sher
Looking back years later on her battle with the prosecutor, Doris Truscott is philosophical. “He was doing his job and trying to get me to say what he wanted me to say,” she remembers. “But he wasn’t changing my mind, I knew what was the truth.”
As the jurors watched Steve’s mother slowly leave the witness chair and walk by the boy sitting in the prisoner’s box, they must have wondered why her son himself did not take the stand.
It was, of course, a defendant’s prerogative not to testify. “You would have thought a long time before putting a fourteen-year-old on the stand,” Dan Murphy, Donnelly’s colleague explains. “It was very, very common not to put the accused in the witness box. I don’t think any lawyer at the time was surprised that Steven didn’t testify.”
But the jurors may have been surprised, or at least disappointed. A trial by peers means just that—jurors are ordinary people, with the same fickle attitudes and assumptions as most people. “I didn’t like [his] look,” said juror Sidney Pullman, long after the trial was over. “We were all looking at him quite a bit … to see how he reacts to different pieces of evidence.” Jurors are supposed to rule on the evidence, but Pullman was certainly not alone in being swayed by appearances. “If it was me, I’d have been shedding tears,” says Pullman. “He didn’t show any signs of any sympathy.… He had a kind of a grin on his face all the time. Kind of a hero type.”
Reading facial expressions, of course, often says more about the person doing the watching than the person being watched. George Edens, the airman who found Lynne’s body and sat through much of the trial, had a completely different take on Steve’s apparent lack of sorrow or worry.
“I used to see him sitting there, and I thought, ‘Either he’s nuts or he didn’t do it.’ If he did it, I expected him to show that he’s terrified because he’s caught. But I never got the impression that he did anything. He sat there with his arms up on the chair … with all this evidence coming up and not letting it bother him. He just made his mind up: ‘I didn’t do it, I don’t have to worry. They’ll get this over with and … I’ll be back going to school and having fun again.’”
But George Edens didn’t have a vote on the jury.
20
THE BOYS AT THE RIVER
No defence witness was more important for Frank Donnelly to build up—and for Crown prosecutor Hays to destroy—than Dougie Oates. He claimed to have been within a few feet of Steve and Lynne as they crossed the bridge on the way to highway. With an excellent line of sight and no apparent reason to lie, Dougie provided seemingly unshakeable support for Steven’s account of his whereabouts that evening.
Hays had shredded the defence’s medical experts, bullied police and air force officers to get their story in line, and badgered Steve’s mother. He was doing his job, and he was doing it well. Now the prosecutor faced an unassuming boy who had just turned twelve over the summer. It seemed an uneven match: a nervous school child and a veteran prosecutor.
But the duel turned out to be one of the surprising upsets at the trial.
“Do you understand what it means to take an oath in a courtroom?” the judge asked. “Yes sir,” answered Dougie. “It means you are calling on God to watch you, and if you don’t tell the truth then you are committing a sin.”
The judge was not inclined to swear “a boy of this age,” but defence lawyer Donnelly insisted the boy might give “some very important evidence.” So again the judge turned to boy and asked him what taking an oath means. “It requires me to tell the truth,” Dougie replied. The judge allowed him to be sworn.
Donnelly began by slowly taking his prize witness through the events of Tuesday night. Dougie left his home after supper to hunt for turtles down by the bridge over the Bayfield River. He was aided in his quest by an older boy named Ronnie Demarray and a younger girl, Karen Daum.
“Ronnie took his fishing rod and he snagged the turtle by the leg and brought it up and put it in … Karen Daum’s [bike] carrier,” Dougie recounted with precision. “After that, I saw one more turtle, it was quite small, and I went down to the bottom of the bridge and grabbed it.”
Dougie made his way back to the top of the bridge. Ronald headed home, but Dougie lingered behind. “I stayed up on the bridge looking for a couple more turtles.” Then, according to the turtle boy, two people came right by him on a bike: Steven Truscott and Lynne Harper.
“When they were coming by, I turned around and put up my hand and said ‘Hi.’ Steve was pedalling. She was sitting on the crossbar.”
“What did Lynne do?” Donnelly asked.
“She smiled.”
“What did Steve do?”
“I don’t think he noticed me because he just kept on riding down.”
“Which way were they going at the time?”
“They were going north, toward the highway.”
Donnelly then produced a photograph of the bridge. Dougie pointed to a group of trees on the north side of the bridge, closer to the highway, where he saw Lynne and Steve. “They were right there along that group of trees.”
Donnelly quickly wrapped up his examination by raising a key point on timing, which he knew Hays would zero in on.
“How long did you stay at the bridge?” he asked. “I was there around until 7:30,” came the reply, “because I got home at fifteen to eight.”
“Your witness, Mr. Hays,” said the defence counsel.
What was Hays to do? Dougie’s testimony was filled with just enough flavour and detail to make it realistic and credible—and deadly to his case. The bridge was about two thousand feet past the bush where the body was found—and where the Crown alleged the murder had taken place.
Other defence witnesses who claimed to see Steven at the bridge were six hundred to eight hundred feet away and Hays could question their line of sight, but Dougie was too close. And since Dougie was too young to be in Steve’s close circle of friends, Hays could not paint him as a conspirator trying to protect his pal.
So the Crown prosecutor decided to attack Dougie’s memory of the time he saw Steven. “Other witnesses have told us of seeing Steven down there by himself at 6:30, Douglas,” he started softly. “Is there a chance that that is what you saw?”
“No, it isn’t, sir,” came the firm reply.
“Did you simply add Lynne through things you heard after?”
“No, I saw him and Lynne.”
“You did?” Hays said.
“Yes,” the boy answered.
“Well, would you disagree with me that it was about 6:30?”
“Yes, I would” was Dougie’s polite reply.
Hays sensed he was up against a little boy with a big backbone. So he pulled out his secret weapon: a typed copy of the statement Dougie had given to the police on June 13, four days after Lynne had disappeared. Hays quoted the boy as telling the police that he didn’t know exactly when he saw Steve “but I think half an hour either way from seven o’clock.” It looked as if Hays had his little adversary caught in a lie.
“Did you tell them that?”
“Well, I didn’t say it was half an hour either way,” Dougie responded. “I said it could have been a half an hour after seven.”
“Constable Trembley read the statement back to you, but you wouldn’t sign it. Is that so?”
“He didn’t read it back to me, he gave it to me, and I never got finished reading it, though, and I didn’t sign it because my mother said not to sign it unless she read it first,” Dougie said.
“And why didn’t you finish reading it?” Hays asked.
“He didn’t give me enough time, sir,” came the response. Dougie had slipped out of the trap; an unsigned police statement was next to worthless.
So Hays then tried another tack, seeking to prove that Dougie was down at the bridge earlier.
Dougie explained in detail how, after leaving home sometime after six, he first dropped by a friend’s house and rang the doorbell two times, then talked to his friend’s mother “for about f
ive minutes.” Then he headed down to the river, but was delayed.
“I stopped for about five minutes.”
“Where did you stop for five minutes?” Hays asked.
“Beside the woods, near the beginning of the woods, to watch a couple of female cardinals,” the nature lover explained.
Hays thought maybe he finally had him. Dougie had never mentioned these delays to the police. “But you didn’t remember that when you were telling the inspector,” Hays pushed.
“Well, he never asked me,” came the boy’s reply.
“He didn’t ask you if you had watched two female cardinals?”
“He never asked me if I stopped.”
Foiled again. Hays then tried trapping Dougie into speculating on times. But the astute boy knew if he was not sure about something, he was better off admitting it.
“What time did you get down to the river?”
“I guess I couldn’t say for sure,” the witness answered.
“Well, try, Douglas. You are pretty good at times.”
“I don’t know, sir.”
“Well, then, Douglas, I suggest to you, if you don’t know what time you got to the river, you don’t know what time you saw Steve.”
“I would say I got down there about half an hour after I left home, or fifteen minutes, anyway, somewhere in around there.”
“Did you see Steven before or after Ron Demarray gave you the turtle?”
“I saw him after.”
“And how long after?”
“I couldn’t say, sir.”
“You are very good at other times, Douglas,” the prosecutor said, with more than a little sarcasm. “Couldn’t you take a stab at that one?”
“No, I don’t think I could,” the boy answered, refusing to take the bait.
For more than fifteen minutes, Hays battered away at the schoolboy’s tale, coming back again and again to the time he saw Steve. Could it not have been a half hour before seven, Hays kept asking; no—the boy stood his ground—it was after seven.
Eventually, even the judge grew tired of the relentless barrage. “Half an hour after. That is what he said,” he finally interrupted. “It is the third or fourth time he said it.”
Hays then quickly wrapped up his cross-examination and sat down. The prosecutor, so successful in unnerving adult witnesses, had met a brick wall in the form of a twelve-year-old turtle hunter.
More than forty years later, Douglas Oates recalls his grilling in the courtroom with a tinge of pride. “I don’t remember it as being a real rough ride. I didn’t really think it was that rough at the time,” he says. Four decades have not shaken his certainty about what he saw that evening. “I know I saw Steve Truscott and Lynne Harper cross the bridge, heading north toward Highway Number 8, on that evening. And there’s absolutely no doubt in my mind.”
The confrontation between Dougie Oates and the Crown prosecutor was a sweet moment for the defence team, one of the few triumphs they could savour in a trial that was not going their way. Dougie stepped down from the stand late Friday afternoon and the judge adjourned the court, giving everyone some much needed rest over the weekend.
When court resumed on Monday morning, defence lawyer Frank Donnelly hoped the jurors were in a refreshed mood. He hoped to build on his success with Dougie by calling on his older brother, Allan.
The sixteen-year-old had stayed at home on Tuesday, June 9, to watch TV until 7:00 p.m., he told the court. Then he took his bike out for a spin around the base for about thirty minutes, before heading down toward the river. “On my way down there, I got about eight hundred feet away from the bridge and I saw Steven down there,” Allan told Donnelly. “I just turned around and went back.”
“Where was Steven when you saw him?”
“On the bridge.”
“How was he dressed?”
“He had a pair of red pants on and a light-coloured shirt.”
“What time did you say it was?”
“Between 7:30 and 8:00.”
“Did you see Steven again that night?”
“No sir.”
Allan’s testimony was short and to the point, barely four minutes long. But his story provided confirmation that Steve was at the bridge, presumably after having dropped off Lynne at the highway. It was a story that Crown prosecutor Hays needed to discredit.
Hays struck first at Allan’s weakest spot: the fact that he failed to report his sighting to the police and told it to a friend of the Truscott family only in the week after Steve’s arrest.
“You knew that the police were all interested in finding out all about Steven Truscott’s whereabouts,” Hays asked. “Didn’t you know that?”
“Yes sir,” Allan replied.
“Why did you not tell this type of thing to the police at any time?” Hays asked. It was a legitimate query, and Allan’s response was weak.
“I just never thought of going,” he said.
Suddenly, Hays switched tactics, trying to throw Allan off guard.
“I suggest it was about 6:30, Allan, that you saw Steven down there, if you saw him at all,” he began his attack.
“No sir,” Allan said.
“Why are you so sure?” Hays pursued.
“Because I watch Panorama and it comes on at fifteen to seven.”
“What programs did you see on the Monday?”
“Well, I watched Panorama and then I went outside, and then I came in and watched The Danny Thomas Show and Cannonball, too.”
“And on the Thursday night, what did you watch?”
“I think I went to the show.”
“On the 12th, on Friday, what show did you watch?”
“I didn’t watch Panorama. I went outside, and I am not sure what was on that night.”
“Saturday night,” Hays asked, “do you remember the programs you watched that night?”
“Just the beginning of Panorama.”
“Can you explain to the jury how you’re able to recount programs you would watch every night in June?” Hays asked, hoping the jury would interpret the teenager’s quick answers not as signs of a good memory but of purposeful fabrication.
“I watch them just about every night they come on” was Allan’s reply.
Hays then tried to discredit Allan by suggesting his entire family was biased in favour of the Truscotts. Was it not true that three members of his family—Allan, Dougie and their mother, Genevieve—had come up from Ottawa for the trial? It was an unfair suggestion. As Donnelly later pointed out, the Oates family—who had been transferred out of Clinton—had no choice in the matter; they were appearing in court by subpoena.
Finally, Hays tried to set a trap for Allan.
“What kind of shirt did Steven have on?” Hays began.
“A light-coloured shirt” was the most Allan was willing to say.
“White?” Hays pushed.
“I can’t say it was white,” Allan answered cautiously.
“What about Exhibit 60?” Hays said, indicating a shirt. “Would that be it?
“No,” Allan said with certainty.
“Take it over a little closer to him,” the judge ordered. Exhibit 60 was a red shirt from Steve’s closet, not the white shirt he wore the night Lynne disappeared.
“You are not prepared to say he had a white shirt, but it was a light shirt,” the Crown counsel concluded. “Is that the best you can do?”
“Yes sir,” said Allan.
Judge Ferguson now picked up the examination. It was unusual, but not unheard of, for a judge to directly question witnesses.
“Did your mother know you were in the house watching television?” he asked.
“Yes, she did,” Allan said.
“She knew you were in the house?”
“Yes.”
“Would she know where your younger brother, Douglas, was at that time?” the judge continued. “Yes,” Allan replied.
Allan and Dougie’s mother, Genevieve, testified briefly for the defence at the trial. Ne
ither the prosecution nor the defence had asked her to confirm the whereabouts of her children. It was an oversight that would later have serious consequences.
Dougie Oates insisted he saw Steve and Lynne cross the bridge around 7:30 p.m.; his brother Allan insisted he saw Steve alone at the bridge at around 7:45. Gord Logan’s special value to the defence was that he combined both stories: he insisted that he, too, saw Steve and Lynne bike to the highway and then, a few minutes later, he saw Steve return alone to the bridge.
After he finished his paper route on Tuesday evening, Gord told the jury, he made his way down to the river, carrying his fishing rod and a bathing suit. When he finished swimming, he stepped out of the water onto a big rock in the bend in the river.
“And then what happened?” Donnelly asked.
“Then I saw Steve and Lynne go by the bridge on Steve’s bicycle.”
“How were they travelling?”
“They were riding double on Steve’s bicycle.”
“Where was Lynne sitting?”
“She was sitting on the crossbar.”
“Facing what direction?”
“I am not sure. I don’t remember.”
“Did you see either of them again?”
“Yes sir,” Gordon replied. “I saw Steve ride back to the bridge, and I saw him stop at the bridge.”
“How long after you saw Steve and Lynne riding north … was it you saw Steven alone?”
“Five minutes.”
Donnelly called it quits—perhaps a bit too quickly. Steve’s lawyer could have made it clear to the jury that Gord’s original statement to the police on Thursday morning, June 11, was all the more believable because he gave it to the police before Steven ever needed a defence. No one knew yet that Lynne’s body was in the bush. Gord had no reason to lie or to cover for Steven. Crossing the bridge with Lynne, well beyond the bush, had no particular importance when Gord first talked to the police.
Hays quickly moved to attack Gord Logan on several fronts.
First, he cast doubt on the boy’s line of sight. “Where were you standing?”
“Just by the bend in the river.”
“I suggest to you, Gordon, that standing where you say you were standing, that you could not tell anyone on the bridge. That you couldn’t tell a boy from a man or a girl from a woman,” Hays pushed. “Do you agree or disagree?”