Until You Are Dead (updated)

by Julian Sher

  Donnelly summarily dismissed the third Crown child witness, Arnold “Butch” George, as an inveterate liar. “You should consider the fact that he gave three different statements to the police, and his evidence was given in this witness box after he studied and read over his statement ten times in the last two weeks,” the defence counsel warned.

  Curiously, Donnelly did not bring up the most revealing of Butch’s lies. Butch had told so many children he had seen Steve take Lynne into the bush that it led to much teasing in the days after Lynne’s disappearance. But in court Butch admitted that his stories were lies, since he testified over and over again that he had not seen Steven at all that evening until after 8:00 at his home. Donnelly never raised this glaring contradiction.

  Donnelly’s refutation of the prosecution’s child witnesses’ evidence was direct and to the point. He never paused, though, to give the jurors the bigger picture; he never allowed for a few minutes of oratory to batter the prosecution’s edifice. Perhaps it was not his style; perhaps he felt it was superfluous. But in a case that relied so heavily on the testimony of children, the jury needed as much help as possible in sorting the tales from the truth.

  Sensing that the mystique of science held the greatest sway over the jurors, Donnelly devoted a good part of his summation to rebutting the Crown’s medical evidence. “The opinion of an expert is only as good as the facts on which it is based,” Donnelly warned. “If the opinion of an expert is based on facts that are incorrect, then that opinion should carry no weight.”

  Nothing carried more weight with the jurors than John Penistan’s remarkable ability to pinpoint the time of Lynne’s death based largely on an analysis of her stomach contents. But how accurate was that analysis, Donnelly asked, if all Penistan and Brooks did on the night of the autopsy was hold a jar of her stomach contents to a dim light in a funeral home? “Turned it around like this, and looked at it. And they say they saw this and they saw that. Now, what in the world kind of examination is that on the contents of the stomach to base a time of death? To give evidence on a serious charge such as this?”

  Donnelly reminded the jurors that his own expert, Dr. Berkely Brown, a specialist in the digestive system, had warned that stomach content analysis was “a quite unreliable and an unsatisfactory way of determining the time of death.” It was a valid point—one that over the years would eventually become accepted forensic practice. But back in 1959, Donnelly would be unable to shake the jury’s confidence in a man of science such as Dr. Penistan.

  Next Donnelly tried to downplay the significance of the soiled underwear taken from Steve on his first day in jail. The defence lawyer suggested it was more than likely Steve stained them overnight in jail after Addison and Brooks examined him, since neither of the medical men noticed the underwear was filthy when the boy undressed in front of them. “They made no comment on the condition of the shorts,” he noted.

  The government biologist, Elgin Brown, testified that in hot, humid weather, bacteria could destroy sperm in two days, Donnelly reminded jurors. Even if the shorts Steve wore on Saturday were the same ones he wore the day Lynne died—an extremely unlikely scenario—the sperm “would certainly be destroyed.”

  Donnelly knew he had to address one of the most damaging pieces of evidence against his client: the sores on Steven’s penis. Donnelly tried to discredit Dr. Brooks by reminding the jury that he had called the jailhouse physician to ask him to check if Steven was circumcised. “Now, isn’t that an amazing thing?” Donnelly asked the jury. “It is difficult to conceive of any doctor making a full examination of the man and examining his penis and not knowing whether or not [he was] circumcised.”

  He suggested the doctors had described a brush burn type of injury, but Lynne had no pubic hair, there was no bony structure near her genitals, and the vagina was round, not oval-shaped. Steven’s injuries were not caused by sex with Lynne, his lawyer suggested, but “probably caused by masturbation.”

  Donnelly then took a risky gamble—he argued that even if the injuries did come from intercourse, there was no proof the sex was with Lynne. “It might well be that this boy had intercourse with some other girl,” he said. Donnelly realized he was treading on dangerous ground here with a jury made up of farmers, small-town merchants and labourers, and he added, “We must bear in mind that we are not trying the morals of this boy. He is not here on any charge that he was immoral with some other girl, or that he was guilty of practices of masturbation, which you do not condone. It is not an offence. Masturbation is not an offence. We must remember that the boy is not on trial for his morals; essentially, he is on trial for the murder of Lynne Harper.”

  It was a brave speech, an important point to make. But by raising the issue of morality, of masturbation and teenage sex, Donnelly also ran the risk of reinforcing some of the jurors’ repugnance over the entire affair.

  Donnelly tried to play on the sexual inexperience of Truscott, well aware he risked offending a largely rural jury. “I trust you will pardon me for speaking of things that you may think should not be discussed quite as openly, but this is a serious matter and my duty.” Donnelly suggested a fourteen-year-old would likely experience premature or early ejaculation, and yet no sperm was found on Lynne’s body; acid phosphatase was found in the upper regions of the vagina and not by the entry.

  The point was dubious, but worse still, the defence counsel was painting a vivid picture in his own words about how his client could have been kneeling over the dying body of his victim while he was coming to an orgasm—premature or not. Not exactly the picture a defence lawyer would normally want a jury to remember.

  Donnelly understood he had to win the war over the credibility of experts. Donnelly realized that many of the jurors knew and respected the local doctors, while they saw Brown, his medical witness, as an outsider. He emphasized to the jury that Brown had seen “many cases of rape,” while the prosecution’s doctors, Addison and Brooks, “had not one experience in connection with an examination of a man or a woman, either, raped, except this girl. In not a single, solitary instance did they have any experience.”

  Steve’s lawyer then turned his attention to the footprint evidence. “With all due respect to Flying Officer Sage, I thought he got carried away,” he said, arguing that Sage’s examination was “much more casual, much less complete” than the study done by Corporal Erskine, who found the marks “indistinct.” Donnelly noted that even if the jurors accepted Sage’s description over Erskine’s, no match was made between the mark and Steve’s shoes.

  As the morning drew to a close, Donnelly tried to give the jury the broader view of the territory he had sketched so far. “You can take all these facts from which some indication of guilt on the part of the accused may be possibly inferred, you can add them all up together and you still do not get that sufficient body of evidence to find that it is consistent with the guilt of the accused.” It was hardly a high point with which to end the first half of his presentation; Donnelly in effect was conceding that the jury might find a lot of little things that made Steven look guilty, but he beseeched them not to add them all up into a single guilty verdict.

  After the lunch break, Donnelly picked up the threads of his argument. Having demonstrated, at least to his own satisfaction, that the Crown had failed to prove his client guilty, Donnelly set out to show the jury all the signs that pointed to Steven Truscott’s innocence.

  He began by making explicit what he had only hinted at indirectly throughout the trial. “There is some evidence that the girl was not killed in this bush,” Donnelly stated.

  “It is very difficult to conceive of this girl permitting herself to be strangled in the manner indicated by the evidence without putting up a terrific struggle.” He pointed out the ground where she was found was soft and yet police found only two small marks. “There isn’t a single solitary mark in this area of any struggle between this girl and her assailant. And I submit that this is conclusive evidence that the struggle took plac
e at some other point.”

  He suggested that if Lynne was raped in the bush, there should have been seminal fluid on the leaves under her crotch. Donnelly reminded the jury the police found Harper’s white socks, neatly rolled up. In one sock, there were seven green blades and two brown blades of grass, and in the other sock more grass and some weeds.

  “There was no grass in the area. Now where did this grass come from? I suggest to you gentlemen that the stockings were removed in a grassy area somewhere distant,” Donnelly said. He noted that a government soil expert concluded the soil on Lynne’s shorts “did not match any of the control samples” from the bush.

  More proof, in Donnelly’s mind, that the murder did not take place in the bush came from the fact that on a heavily travelled road in broad daylight, “nobody saw Steven Truscott and Lynne Harper go into that bush and nobody saw Steven Truscott come out of that bush. There is not a single solitary witness who gave evidence here that saw either of them go in or saw this boy come out.”

  Donnelly then moved on to the key question of time. Richard Gellatly, he reminded the jurors, insisted he met Steve and Lynne at the top of the road around 7:25 p.m. “So we have got them on the road at 7:25. Well, Steve was back at the swings at 8:00,” Donnelly said. “I do earnestly urge you that in the thirty-five minutes available to this boy … he did not have time to commit this offence in the manner in which it was committed. He didn’t have time to go there, attack the girl, struggle with her, rip the blouse, get the blouse around the neck and tie this nice neat knot.… The shorts had to be removed and they were apparently removed in a careful manner.… The socks were neatly taken off. Not hurriedly taken off. Taken off with care.… Then there were three branches—three trees broken off. It would take considerable time to break off those three branches, twist them off in that manner.… And I suggest to you that Steven Truscott could not have done all those things and been back at those swings at 8:00.”

  It was a powerful summation of the improbability of the prosecution case, and Donnelly capped it with the most illogical piece of the Crown’s theory. If Steve killed Lynne, he said, “he would be terror-stricken, and the last place he would go would be over to this meeting place at this school where a number of people would be able to see him and observe him and observe anything unnatural or out of the ordinary about him.”

  “It is inconceivable that a boy fourteen years of age could cold-bloodedly murder a girl and come back and be perfectly normal and talk to his school chums,” Donnelly said.

  Donnelly also reminded the jury that there was blood on several pieces of Lynne’s clothing, but not a drop on his client. “We have blood on the front of the right shoulder strap, we have blood under the armpits, we have a considerable patch of blood [behind the] shoulder, we have a few spots of blood on the front of the shorts. We have blood on the panties, under the shorts. We have blood on the left shoe worn by the girl,” Donnelly said.

  “The fact that we find the garments of this girl in this condition and we find the garments of the boy without blood is the strongest evidence in favour of the boy we could ask. If this boy attacked that girl, he would be bound to have blood on his garments, and that blood would have been fixed and it would not have been washed off.”

  The lawyer stressed to the jurors how Dougie Oates, his star witness, failed to crack under the withering attack by Crown prosecutor Hays. “Now there was a very bright young man, and he surely must have impressed you by the capable manner in which he gave his evidence. Cross-examination is the real test of the weight of a witness’s evidence. My friend cross-examined that boy at length and he didn’t shake that boy one iota. Not one iota.”

  Finally, Steve’s lawyer stressed to the jurors what he saw as his client’s unwavering truthfulness. “He has consistently told the same story,” the defence counsel said. The very first time he was asked what happened to Lynne—when he returned to the ball field at 8:00 p.m.—he told his friends he had dropped Lynne off at the highway; he told the same story to Lynne’s father the next morning; again at 9:30 that morning to Constable Hobbs; again at 12:20 to Constable Trumbley and Sergeant Johnson; and again at 5:00 that afternoon to Trumbley. “So we have this boy telling this story on all those occasions, and at no time did they shake him.”

  Frank Donnelly had spent most of the day trying to raise reasonable doubt in the minds of the jurors. It had been a long, at times rambling and confusing address, perhaps a sign of how little time the defence attorney had to prepare a summation for such a complicated trial. He never clearly organized his themes or gave the jurors a guiding hand to explain what subject he was going to cover next. At times during his marathon presentation, Donnelly himself seemed to lose track of key trial testimony and could only hope the jurors had better memories. Donnelly could not even remember exactly what time Dougie, his most important witness, had seen Steven cross the bridge. “It is rather difficult to keep these matters in mind,” he told the jurors, “but some of you will recall more clearly than I do what Douglas Oates said.”

  Donnelly wrapped up his summation in a somewhat apologetic tone. “I was much longer in my remarks than I had expected to be,” he said, “but if I had been shorter I wouldn’t have filled my duty to this boy on the defence of this most serious charge. I am confident that after careful attention that you can come to only one conclusion and one finding, and that is a verdict of not guilty for this boy. It is with confidence that I leave the fate of this boy in your hands.”

  Donnelly had been confident about his case from the beginning. He had told the Truscotts not to worry. He had successfully defended four people accused of murder in the past. Surely, with Steven Truscott, he could make it five in a row.

  22

  THE PROSECUTION MAKES ITS CASE

  “I have the honour to be acting on behalf of the Crown. That means the State. That means the community,” Glenn Hays began his summation, establishing a bond with the upright local citizens in the jury box and foreshadowing the cloak of morality in which he would wrap his case. He was on their side, against those who would threaten the standards of decency in Huron County.

  With skill and aplomb, Hays proceeded to weave the thin strands of circumstantial testimony into a tapestry of guilt. His tactic was the same he had used so successfully in the trial: less is more. Make the evidence seem more than it was, drown the jury in details and fudge the facts when necessary.

  It worked.

  From the start, Hays addressed head-on what he knew was his case’s main flaw: “There is no reason for anyone to ever discount the value or standing of circumstantial evidence,” he told the jurors. Sometimes, he said, circumstantial evidence is much more reliable than eyewitness evidence because people are capable of “error and bias.” It was a sly manoeuvre, since Hays neglected to point out that most of his circumstantial evidence also came from eyewitnesses and human beings who were not only capable of, but at times had been proven to show, error and bias.

  “Dr. Penistan gave the time of death as from 7:00 to 7:45 p.m.,” Hays explained, coming quickly to the guts of his entire case. “Now, who was with her during this time? What person or persons had the opportunity to kill her from 7:00 p.m. to 7:45 p.m.? I suggest that a review of the facts narrows those facts like a vise on Steven Truscott and no one else.”

  There, in a nutshell, was the entire case against Steven Truscott. Medical science—especially Penistan’s analysis of the stomach contents, Hays reminded the jurors—had pinpointed the time of Lynne Harper’s death to a forty-five-minute window, and since no one else was with Lynne at that time, Truscott had to be a murderer.

  Who were the jurors going to believe on time of death, Hays asked? The outside defence expert, Dr. Berkely Brown “who never saw the stomach” or Dr. Penistan, whose “careful study” at the local funeral home nailed down the exact time of death?

  Next Hays had to establish that Steve had the time to kill Lynne, so he skilfully pushed back Lynne and Steve’s departure from the sc
hool as much as possible. He told the jury that the two Brownie leaders, Dorothy Bohonus and Anne Nickerson, had seen Lynne and Steve leave from 7:00 to 7:10 p.m., glossing over the fact that that was simply the time when the women said they turned away and stopped looking at Lynne and Steve, not necessarily the time that the youngsters headed down to the river.

  Hays then engineered a stunning triumph of obfuscation. He described how two of the boys playing baseball, Stuart Westie and Warren Heatherall, had seen Lynne and Steve. “Both put that time about 7:00 p.m., and Richard Gellatly, southbound on his bicycle, met and passed them.” It sounded so obvious, three boys supposedly confirming a 7:00 departure. Except that Hays was seriously misrepresenting their testimony. Only Warren said he saw Steve “about 7:00” and he said he was “not too sure.” Stuart gave no time at the trial; he told police he thought Steve left “around 7:30 p.m.,” give or take twenty minutes.

  Richard had testified that he passed Steve and Lynne not at 7:00 but around 7:25. How was Hays going to explain why Steve and Lynne took twenty-five minutes to travel the short distance from where the boys were playing ball to where Richard met them on the county road near the school? The prosecutor performed a feat a verbal gymnastics.

  “Now, Mr. Donnelly quoted Gellatly as saying 7:25,” he began. “The boy is obviously—if that is what he said, he is obviously out. I think Mr. Donnelly conceded that was probably not reliable as the time.” Hays knew that the 7:25 time was exactly what Richard had said. Hays knew Richard consistently gave that time from the beginning—in his police statement, at the preliminary under Hays’ own questioning and at the trial. By referring to Donnelly “quoting” Richard, Hays was implying it was perhaps another dubious piece of defence evidence. But Gellatly was a prosecution witness; it was Hays himself who solicited the 7:25 time—twice—and at no time in the trial did Hays ever challenge or dispute that time. Donnelly certainly never “conceded” that the time “was not reliable.”