by Julian Sher
“I disagree.”
“Would you agree that this is some six hundred feet east of the bridge?”
“No sir, I don’t think it is,” Gordon answered. He was wrong; Hays was right. The rock Gord stood on was 642 feet from the bridge.
“How was Lynne dressed?” Hays asked.
“I think she was wearing shorts.”
“And which way was she facing?”
“I don’t remember.”
“So you don’t remember which way she was facing, but you could see she was wearing shorts.
“I am not positive she was wearing shorts, but I think she was.”
“Did you say anything to any of those boys [in the river with you]? ‘There goes Steven and Lynne Harper?’”
“No sir, I didn’t.”
“Did you say to any of them, ‘There is Steven down there at the bridge’?”
“No sir.”
Hays was finished with his cross-examination, though not with Gord. He would devote much of his summation to attacking the boy’s testimony.
In less than two days, the defence had finished calling its eyewitnesses. Under Canadian law, the prosecution has a right to rebut the defence’s case after the defence lays it out to the jury. The Crown can re-summon witnesses and even bring in new testimony in an effort to shoot down major elements of the defence. It was clear who Hays’ targets were: Dougie Oates and Gord Logan, the two eyewitnesses who provided the strongest proof of Steve’s innocence.
Hays began his attack on Dougie’s evidence by calling to the stand the stenographer who took down his first statement to police. Marjorie Jean Gardner had been a court reporter for seven years, trained in shorthand and transcription, and had worked as secretary in the Crown attorney’s office in Goderich. She was summoned on June 13 to take notes when police questioned Dougie. The boy had insisted the police version of his statement was wrong—he said he had told them he saw Lynne and Steve cross the bridge between 7:00 and 7:30.
“What do your notes say?” Hays asked Gardner.
Quoting her transcription of Dougie’s words, she read: “It might have been about seven o’clock. I don’t know the time, but I think a half an hour either way from seven.”
“So that exhibit faithfully transcribes what you took down in shorthand and what he said?”
“It does, sir.”
Defence lawyer Donnelly was not to be deterred.
“Did the boy just stand there or sit there and tell his story, or was he questioned at all?” he began.
“No, he was questioned,” the stenographer replied.
“Where are the questions?” Donnelly pursued.
“I did not take the questions and answers, sir.”
“Did you take the questions down?”
“No sir. I took down a narrative,” said the stenographer.
It was subtle but important point. It was standard police procedure to write up a witness interview in the form of a statement to be signed. But in this case, a faithful record of the dialogue between the police and Dougie would have revealed more about how specific the boy was about his time and how he responded to police queries.
Next, Hays tried to discredit Dougie by proving he had left the bridge at 6:30—at least, according to a new eyewitness.
Paul Desjardine had already testified about other activities down by the river, but now Hays recalled him to the stand to solicit an additional detail: Paul remembered seeing Dougie and Karen Daum when he arrived at the bridge around 6:25 p.m.
“Where were they?” Hays asked
“They were fishing off the bridge.”
“And at what hour did they leave the road bridge?”
“They left at 6:30.”
It seemed firm and unambiguous proof that Dougie must have been wrong about staying on the bridge late enough to see Steve and Lynne pass around 7:30 p.m. The defence lawyer knew he had to move fast and he had to move in for the kill. Donnelly got Paul to affirm that he was down by the river the entire time with his good friend Tom Gillette.
“Did Tom Gillette go home before 8:30?” Donnelly asked innocently.
“No sir,” Paul answered.
Donnelly knew he had him. He reminded the boy that Tom had testified he left the bridge around 7:00 and came back later.
“Could you be mistaken?” Donnelly probed.
“Yes sir,” the confused boy answered. “I don’t remember too well.”
“You don’t remember too well,” Donnelly repeated, making sure the jury got the point.
Paul also denied that another of his friends, Bryan Glover, went home during the evening; it was Wednesday night when that happened, Paul suggested.
“Well, he says it was Tuesday night, what do you say to that?” Donnelly asked, and then made his devastating final jab: “You don’t know what night you are talking about, do you?”
“No sir.”
“Pardon?” the lawyer asked, driving the point home.
“No sir,” replied the boy sheepishly.
“Well, that is just fine,” said Donnelly, pleased with his work.
“That is all, thanks, Paul,” said Crown prosecutor Hays brusquely, eager to get his hapless rebuttal witness off the stand.
Hays fared little better in attacking the other key defence eyewitness, Gord Logan. The prosecution brought back Beatrice Geiger, one of the mothers at the swimming hole that evening, to cast doubts on Gord’s ability to spot anyone on the bridge. Hays asked Geiger if she could see people on the bridge from her vantage point on the riverbank.
“I glanced up once or twice. There were people on the bridge. I couldn’t tell whether they were men and women or children or boys or girls,” Geiger replied.
“Why couldn’t you tell whether they were men or women or children?” asked Hays, hoping for more.
“I guess I didn’t pay too much attention” was the reply, not exactly what the Crown counsel needed. Undeterred, Hays pushed his luck, and broke a cardinal rule among trial lawyers: never ask a question to which you do not already know the answer.
“Could you have recognized a person on the bridge from where you were?” he asked.
“Had I been looking for someone I know, I imagine I would have recognized them,” said Geiger.
Hays had just shot himself in the foot.
Trying to clean up the damage, the prosecutor called back OPP Const. Donald Trumbley. The policeman had taken Gord to the riverbank on the evening of July 6 to test what he could see from the swimming hole. Prosecutor Hays asked Constable Trumbley what he could see, standing next to where Gord was in the river.
“I couldn’t make out the features of anyone on the bridge,” he replied. He testified he spotted three boys on the bridge six hundred feet away, but his guess at their clothing did not match his examination of their attire when he walked up to them. In fact, Trumbley was being modest about his visual accuracy. He said one of the boys “appeared to have dark pants and light shirt” and upon closer inspection was found to be wearing blue denim trousers and a white T-shirt. The two others “appeared to have light pants and light shirts” and close up were discovered to be dressed in khaki trousers and white T-shirts. In other words, Trumbley basically got it right each time.
“Could you recognize any person’s features, to know them from the bridge?”
“No sir,” the officer maintained.
But then Justice Ferguson butted in. “Do you think you could recognize a man in a suit of clothes, if he had on a red shirt or white shirt, at two hundred yards?”
“Yes, I believe so,” the police officer answered, lending weight to the defence claim that Gord could recognize a friend in red pants.
Trumbley’s testimony continued to crumble under Donnelly’s re-examination. The defence lawyer pointed out to the jury that the true test was not whether Trumbley could make out the features of strangers on the bridge, but whether Gord could identify someone he knew. It would have been easy for the police, Donnelly explained, to line up se
veral of Gord’s friends on the bridge to see if the boy could correctly pick them out. They didn’t do that.
“Was there any test made of Gord Logan to see whether he could recognize anybody on the bridge?”
“No sir,” the OPP officer admitted.
“Well, that is what you were there to see, to see whether Gord Logan could see, not what you could see. That was an important matter, wasn’t it?”
“Yes sir.”
“You could recognize somebody you knew, couldn’t you?” Donnelly pushed.
“It is possible,” officer Trumbley reluctantly agreed.
After Constable Trumbley stepped down from the witness box that Monday afternoon, September 28, there would be no more witnesses to call. Court reporter A. D. MacNeil was as exhausted as the jurors. The clerk had taken down between 350,000 and 400,000 words of the proceedings. Seventy-four witnesses and seventy-seven exhibits spread over eleven days of testimony. The trial had been complex, confusing and overwhelming.
The twelve jurors from Huron County now had to try to separate fact from fiction in order to decide on Steven’s innocence or guilt. To help them make up their minds, there would be lengthy summations by the lawyers and then the judge’s charge to the jury. Justice Ferguson decided to give everyone an all too brief respite.
“Gentlemen of the jury, the evidence has been of such a nature, counsel have asked me if they might have the rest of the afternoon to organize what they want to say to you,” Ferguson said, adjourning the court until Tuesday morning.
That the lawyers—after a gruelling two weeks of trial—would accept only a few hours to prepare their summations for the next day was all too typical of the almost “frontier justice” that was so prevalent in the Canada of 1959, especially in smaller towns and cities. Ferguson was a circuit judge, a roving magistrate who came into town for a quick spell and then was off again to convene another high-stakes trial. Little wonder then that Ferguson obliged jurors to sit through two Saturday sessions, burdening them with a schedule no jury would suffer today.
The entire procedure went frighteningly fast, a legal locomotive that could not be stopped. Steve was jailed within twenty-four hours of the body’s discovery, put on trial about ninety days later, and would be sentenced on a death penalty charge just two weeks after that.
The Crown had an army of police officers and government medical experts to help wage its battle. These foot soldiers interviewed dozens of witnesses and conducted a battery of scientific, medical and physical tests. Frank Donnelly may have been one of the most experienced and capable lawyers in the region, but he was no match for the State. In a case with a bewildering array of medical detail, confused times and garbled testimony from children, Donnelly had to labour all summer long by himself.
Today, on even an uncomplicated murder charge—for example, self-defence where no one disputes the facts, just the motive—a defence lawyer would be funded by legal aid if the client could not afford counsel. There likely would be enough money for the lawyer to hire a private detective, several experts and a legal researcher. The defence counsel would have months—perhaps even a year—to prepare the case.
The tragedy of the Steven Truscott trial was not that it was an exception in its rushed nature, its unequal tug-of-war between the Crown and the defence, but that it was par for the course. Dan Murphy, the young assistant who joined Donnelly’s team only as the trial began, recalls that many murder trials of the time were wrapped up in as a little as four days. Who knows how many other cases of swift but sloppy justice went by unnoticed and unheralded?
As the jurors filed out of the Goderich courtroom on September 28, 1959, no doubt many were grateful that their ordeal was almost over. Perhaps many had already made up their minds about the guilt of the boy being led away from the prisoner’s box. Perhaps some would wait until they heard from the lawyers and the judge. It would make little difference for Steven Truscott.
Some of the most egregious errors of justice were still to come.
21
THE DEFENCE SUMS UP
Frank Donnelly rose to face the jury at ten o’clock on Tuesday morning, September 29. Steven Truscott’s lawyer knew that, in many ways, the hardest part of his battle still lay ahead. He had lost some of the confidence he showed at the beginning of the trial. True, the Crown had still not produced any direct evidence tying his client to the murdered girl. But Donnelly must have sensed that the jurors were appalled by the gruesome medical evidence, swayed by the carefully stage-managed prosecution witnesses and confused by the many arcane details of the case.
Could he spell out, in simple terms, a clear case for his client’s innocence?
“It is impossible for anyone to have heard this evidence without having the very greatest sympathy for this poor, unfortunate girl,” Donnelly began. “One cannot help but have sympathy for the parents. They have suffered a very, very severe loss.” But emotion should not colour the jurors’ objective evaluation of witnesses and exhibits, Donnelly urged.
Steven’s lawyer then played a desperate card. He told the jurors they held not just the fate of Steve’s innocence or guilt in their hands, but his very life. “If your verdict is guilty, His Lordship will have no alternative but to sentence this boy to be hanged by the neck until he is dead. Now I am not suggesting to you, gentlemen, that you have anything to do with the penalty. But I raise this point to show the heavy duty that rests on me and the much heavier duty that is your responsibility.”
Donnelly first attempted to deal with the mountain of physical evidence, photographs and tests the Crown had arranged against his client.
For starters, Steven’s lawyer had to address the question of whether or not the boy could pick out the colour of a licence plate on a car, standing at the bridge thirteen hundred feet away. Donnelly dismissed the photographs produced by the police because “pictures can mislead you.” Donnelly tried to bring the distances home to the rural jurors by using a farming measurement—a rod that measures a 16½-foot space between furrows in a ploughed field. “I do suggest that it is a simple matter to stand on one side of a farm and distinguish a small vehicle eighty rods away on a bright clear day.” He also suggested that Steven quite possibly did not see a licence plate but a sticker or the sun’s reflection on the back of the car.
“There is no direct evidence which in any way links this boy with that murder,” the defence counsel went on. The tears and grass stains on Steven’s jeans were not proof of anything except that “this was an active boy.” He reminded the jury that Steve’s mother had testified he ripped his jeans on a bicycle before Lynne disappeared and that almost every other piece of clothing the police had collected from Steven bore the holes and rips so typical of a teenage boy’s clothing.
The bicycle tire marks in the laneway were also meaningless, Donnelly insisted, because the tracks were made when the mud was soft and not caked dry as the police photos showed. “Many of you are farmers,” Donnelly added. “You can use your own good judgment as to how long it took for that land to become parched like that.” And for good measure, Donnelly reminded the jurors that the Crown’s own police expert had been far from definitive. “Corporal Erskine said that the marks he found in the mud were similar to the marks he made [from Steve’s tires]. He did not say they were identical.”
Considering how much the Crown had distorted this evidence and how heavily the prosecution relied on the bike tracks to put Steven at the scene of the crime, Donnelly perhaps could have stressed these points with even more force and detail. Still, it was a solid argument that the jurors would have to reject or ignore in order to find Steve guilty.
Frank Donnelly’s next theme was the oral evidence of the Crown’s trio of child witnesses—Jocelyne, Butch and Philip. He began with the girl the prosecution called its “most important witness.” Donnelly stressed that she was “way out in her time,” because Bob Lawson said she was on his farm almost an hour later than she claimed.
“Why in the world would t
his girl go to Bob Lawson’s farm if she was to meet that boy down at the bush? I suggest that that, alone, proves that she is incorrect and that her whole story is wrong, because it certainly doesn’t fit.” He also reminded the jurors that it was Jocelyne who had tried to make a date to go looking for calves with another boy, Gary Gilks. It was likely that if Jocelyne and Steve did talk in hushed tones about going to see calves, it was Jocelyne and not Steve who initiated the chat, Donnelly argued. “Gilks gave her no encouragement and we have no more reason to believe that Truscott gave her any more encouragement.”
It was a succinct refutation of Jocelyne’s claims. But, again, taking into account how central she was to the Crown’s case, perhaps Donnelly could have connected the dots more explicitly for the jurors. How could Jocelyne have been down at the lane looking for Steve around 7:15, as the prosecution claimed, if she had not even left Lawson’s barn until at least 7:25? How certain was anyone that Jocelyne had been down at the bridge at all, allegedly looking for Steve, if not a single eyewitness except Butch put her anywhere near the river that evening? How certain was it that Steve called by her house before 6:00 p.m. if the police failed to produce a statement from the only other person who saw the face of her visitor, her younger brother who answered the door?
Donnelly took even less time dispensing with the Crown’s second important child witness, Philip Burns. Philip testified he did not see Lynne and Steve on the county road that evening, but Donnelly noted that there were also at least two other children he did not see—Bryan Glover and Tom Gillette. Both boys travelled from the bridge to the base and then back down the river, giving Philip the potential of four chances to see them both. Yet he recalled nothing about them. He had only one brief opportunity of seeing Lynne and Steve. “In view of the very fact that he doesn’t recall seeing these others,” Donnelly argued, “you cannot rely on his statement.” Once more, Donnelly’s summary was accurate, but perhaps too concise for such a crucial Crown witness. Donnelly’s refutation of Philip’s story took less than four minutes in a day-long address to the jury, easily forgotten by the jurors amidst the hours of testimony they were absorbing.