by Julian Sher
Hays had made a bold gamble: when stuck with a glaring contradiction in your own case, forge on and hope the jury doesn’t notice. Evidently, they did not.
To wrap up his timing scenario, Hays had to push back Steve’s return to the school. He dismissed John Carew—the only youngster whose time estimate was backed by his parents—by noting he “wasn’t wearing a watch,” although the same could be said of most of the prosecution witnesses. Carew put Steve’s return at 8:00; the other teenagers at the school thought it was about ten to fifteen minutes later. “Let us suggest that he’s getting back some time … 8:00, 8:10, 8:15,” Hays said as he prepared to tighten the noose of time around Steve’s neck. “It puts him in the bush from 7:15 to let us say eight o’clock. Call it 8:10. Call it something in that vicinity. What does that give him? That gives him from three-quarters of an hour to one hour in that bush, and I suggest that is ample, most ample time for him to do what he is charged with doing.”
It was a masterful stroke. The Crown’s own witness, Richard Gellatly, had put Steven on the road as late as 7:25, and several witnesses put his return at close to eight o’clock, giving Steven at most thirty-five minutes to commit the crime. Yet in his summation, the prosecutor had succeeded in almost doubling the amount of time Steven Truscott could have had to rape and murder Lynne Harper.
Hays still had to get Steve and Lynne into the bush. With all the children, adults, bikes and cars going up and down the road, and with at least two teenagers—Butch and Jocelyne—insisting they were on a very specific hunt for Steve or for Lynne, somehow no one that evening managed to catch even a glimpse of the pair going into the bush. So Hays set out to convince the jury that the very fact that so many people did not see Steve and Lynne was, in effect, the equivalent of eyewitness testimony that they must have gone into the bush.
“Philip Burns, coming along behind Gellatly, is on foot,” Hays explained. “Philip Burns testifies that he did not meet Steven and Lynne or either of them. I ask you, is that not pretty conclusive that Steven and Lynne turned off the county road into the bush? What other explanation is there? Where else could they have gone?” Another simple nugget, easy for the jury to grasp.
“I suggest to you in all seriousness, gentlemen, that if Steven, with his red pants and his green racer had been any place on the county road,” Hays continued, “Jocelyne Gaudet and Arnold George would certainly have seen him because they were looking for him and neither one of them saw him.” Hays used this point to prepare for one of the most theatrical moves in Canadian legal history. He turned away from the jury and faced the judge.
“I wonder, my lord, if I might have Jocelyne Gaudet step in?”
“Yes,” agreed the judge, and the girl walked in.
Hays turned back to face the jury and pointed to the girl. “I realize, gentlemen, that there are so many children for you to remember,” the Crown lawyer said. “That, gentlemen, is Jocelyne Gaudet.” It appeared innocuous: bring a young girl into the courtroom to help the jury identify her. But Hays had a much darker motive for pointing out the girl.
The Crown prosecutor knew he had to make the most of Jocelyne Gaudet. “She is a key witness in this narrative,” he explained. With the sight of Jocelyne fresh in their minds, the jurors listened as Hays pulled off a judicial coup that came perilously close to crossing the line of legal ethics.
Hays began by reminding the jury that, according to Jocelyne, Steve had come calling for her on the evening of Lynne’s disappearance: “He called there but she was having her supper,” Hays said. “And I suggest to you, gentlemen, that if they were late having their supper, it was God’s blessing to that girl.” Jocelyne, but for the grace of God, could have been the victim of the sexual predator sitting in the prisoner’s box. Hays was effectively accusing Steven of wanting to rape, if not murder, Jocelyne; Lynne was just an unfortunate second choice. The Crown’s manoeuvre played on the jury’s sympathies and horror, but it was also a judicial sham. Steven Truscott was charged with the rape and murder of Lynne Harper and of her alone. There was no basis even to suggest he had intention to commit a crime against Jocelyne or anyone else. But Glenn Hays got away with doing just that.
After Jocelyne escaped Truscott’s clutches, “I suggest he saw a substitute in Lynne Harper,” Hays explained. “He missed his first prospect, and what more logical and likely person to accept his proposal to go with him on short notice than a girl he knows is fond of him, soft on him.”
Hays also moved to bolster Jocelyne’s credibility. “Pretty solid support for her account that she was looking for Steven comes from the evidence of Mr. Lawson. Mr. Lawson testified that Jocelyne went over to his farm looking for Steven, he said between 7:15 and 7:25. And he gave one of those times definitively, when he looked at his watch. So suggesting she is making the story up is pretty well refuted by that. She was there.”
A more selective use of testimony would be hard to find. Of course, Jocelyne “was there” but the truth was that Lawson’s evidence showed the girl was making up a large part of her story. She lied—or was seriously mistaken—about the time of her visit and she was wrong about how long she stayed at the barn.
Hays was painfully aware that he faced an even more serious credibility problem with Butch George as the boy’s statements changed so often. Hays decided to turn Arnold’s flip-flops into an advantage, claiming that his vacillations were not signs of unreliability, but of a change of heart. Butch was a shining example of a conspirator who had seen the light.
Butch lied to the police to protect his friend Steve, Hays said, “but when Lynne’s body was found, the boy came to a realization that to protect a friend can just go so far, and then he gave a right statement.”
Hays also used another tactic: taking outwardly innocent actions or facts and turning them into something much more sinister.
Steve’s aimless wanderings on his bicycle along the county road in the hour before he met Lynne now became proof of evil premeditation. “What else could he be doing other than looking into the bush, planning things, just seeing that the coast was clear?” Hays suggested.
When he was taken into custody, Steve’s legs and arms were dirty but his genital area was washed clean. “Why was he washed that way?” Hays asked. “Would it be to remove any signs of blood or sperm from that area?”
Simple scratches on Steve’s knees and elbows, not unusual for a high school athlete, were leftovers of a crime, Hays informed the jury. “Obviously, those are positions that bear contact with surface during an act of intercourse. The location may add just another fact or deduction linking him with the assault of that girl.”
The defence had suggested that only an adult male could reach for three thick tree branches in the bush, cut them off and place them over Lynne’s body. The police witnesses said the branches were three-quarters of an inch wide and conceded it would take “considerable effort” to break them. But the Crown counsel dismissed the thick branches as “sticks.” He pointed to photographs of them and told the jury: “Look at them, gentlemen. A boy who wins the senior boys’ award for sports, could he not take them off almost like matchsticks?”
“A young girl, no passion, dry area, gentlemen,” Glenn Hays said, neatly summing up the sexual core of his case in eight words. Like defence counsel Donnelly, Hays prepared the jurors: “We have got to talk of things and you have got to think of things that are not even discussed in polite society, but this is a murder trial.” But unlike Donnelly, Hays was happy to play the sex card in his summation. After all, any explicit talk about sex was bound to strengthen jurors’ abhorrence of the young boy in the prisoner’s box.
Hays began by describing the “brush burns” on Steve’s penis “covering, I believe, some eighty per cent of the area”—a deliberately vague exaggeration. No doctor suggested the sores covered such a large part of the penis. Only Brooks had used the eighty per cent figure and in a confusing manner, saying the area involved was “slightly bigger than a quarter … that area was eight
y per cent of an area larger than a quarter.”
Hays also played loosely with the facts when it came to the soiled underwear the OPP removed from Steven in jail. The blood and sperm found in the underwear was “awfully strong complementary evidence involving this boy in the sex act with the girl.” Crown prosecutor Hays encouraged the jurors to speculate that for some reason Steve wore the same dirty underwear for four days after he raped and murdered Lynne. “I suggest you will arrive at the conclusion he had it on for a good many days and that you may be able to make the deduction that … the sperm is from the attack on the girl.”
With a careful mixing of selective facts and suggestive fiction, Hays painted a picture of how he thought the murder took place. He first had to deal with what Steven did with his bicycle, since Jocelyne never saw a bike when she was walking down the lane just ninety feet from where Steven, according to the Crown, was busy with Lynne. “Did he then conceal his bicycle? Did he put his bicycle through the fence?” Hays asked. “It would be no effort to put the bicycle through, under or over. And that wouldn’t cause alarm to Lynne, possibly, if she were told now this is kind of a secret mission.”
Next, Hays had to explain why Lynne’s clothes were scattered so far from the body. “And then, did her attacker put his arm around her neck and choke her into unconsciousness? And when she was then limp on the ground, was she then dragged by her shorts through the fence, getting some cuts on her knees? And was a stop made some fifty feet in, while she was still unconscious, and her pants pulled off?” Hays speculated. “They were found about there. Were they dropped there? Taken off by her attacker, left there, and was the body taken on in?”
If Steve dragged a cut and bleeding body across barbed wire fences and through the bush, pulled off her clothes and strangled her, why was there not a drop of blood on his clothing? “If he went to the trouble of taking off her clothes when she was unconscious or dying and limp, in curiosity about her body, might there not be the action of taking off his own and putting them aside, to satisfy his desires? Only a matter of a minute or two to do that, and put them back on. Then there would be no blood.”
“The Crown’s case doesn’t take the form of showing that she was dragged from the lane through the fence to where the body was,” Hays cautioned. “The Crown’s case is simply that she was murdered at or near where she was found.” Yet he had succeeding in planting in the jurors’ minds a terrifying picture of how that could have been done.
The experienced prosecutor knew jurors attached more credibility to things they could see and touch, such as bicycle tire marks and footprints. If jurors were going to condemn a young boy to hang, better to have something solid to hold on to, instead of only the confused memories of children. Hays, therefore, had to excel in what he had done so well so far: make something small appear much more important than it was.
He reminded the jury the police found tire marks along the tractor trail leading into the bush. “It would seem to be fairly strong evidence that that bicycle was down there,” he said, acknowledging it was circumstantial. “You have a pile of facts, and if there is one or two that are not conclusive, you still have the conclusive proof of the facts that are there.”
In other words, pile on as many facts as possible and even if “one or two” of them are not entirely proven, a high mountain of guilt is created. Consider, for example, how Hays handled the bothersome fact that it had not rained for days and that the police testified a bicycle would not likely leave a trace in the dry earth on June 9. The trees could have provided some shade, he told the jury. “There is plenty of rain in May and none in June, but there could be dampness,” he suggested to the jurors. “That is only one of the great stack of facts that are amassing for your assistance.”
To top off this growing “stack of facts,” Hays added one final gem. “To put Steven at this scene there is something, I suggest, a great deal heavier, more conclusive,” Hays told the jurors—Flying Officer Glen Sage’s testimony about the footprints. Even Hays had to admit the marks were not “readily discernible” in the photographs. He also acknowledged that the airman saw what the OPP’s footprint expert did not. “I am sure we can count on that there are some pretty bright people outside of the police force and just as capable of seeing something,” Hays offered.
The marks came from “a crepe-soled shoe,” the prosecutor insisted. “The evidence is clear. You can make the comparisons yourself, and you can evaluate it. These were Steven’s shoes.”
There was a dispute over whether the marks were clear footprints, and no evidence that they matched anyone’s footwear. But Hays had turned what the police identification expert had called “scuff marks” into exact matches for Steven’s shoes. It was a ploy that had a great impact on the jury, even many years after the trial. Juror Sidney Pullman told the CBC decades later, “The kind of shoes he had on were crepe soles, and the ground was damp, and his shoes left the marks from the damp ground.”
Finally, Hays had to discredit the two boys who insisted they had seen Steven cross the river with Lynne that night—Gord Logan and Dougie Oates. Hays deftly turned the tables in his summation. Butch was praised for changing his story, while defence witnesses who never once budged on their testimony were unrepentant liars plotting to protect their friend.
Hays told the jury to disregard Gord because he was part of a carefully orchestrated cabal. “I submit that he is part and parcel with the Steven Truscott–Butch George conspiracy,” Hays said, referring to Butch’s allegation that he plotted to lie for Steven. “You can take it from the sworn evidence before you that Gord Logan got in on the same deal to tell the police a false story, but unlike George, he stuck to it.” What “sworn evidence?” There was no evidence that Gord and Steve met in the days after Lynne’s disappearance to cover up a murder.
Dougie Oates was also part of the plot, according to Hays. “He was prepared for a role and told where to hold the line, and in doing so he made himself out to be a little liar.” Doug was not in court to hear that accusation. When shown the court transcripts years later, he laughed at the notion that he or any of the other youngsters would have the guts or the intelligence to plot a cover-up. “Where would we have had the time to conspire to say that we’ve seen them cross the bridge and get all our stories straight?” he says. “When you think about it logically, at the ripe age of eleven, we would have to have been extremely sophisticated to be able to put together stories like that. How much time would we have had to come up with these stories and where would we have gotten together to do this? It really doesn’t make a lot of sense.”
It was 4:35 in the afternoon. The many hours of testimony and summations were finally coming to an end. “I submit, gentlemen, that on all of the evidence there is only one conclusion that you can reasonably come to … and that is that the accused committed this crime,” Hays said solemnly.
He sensed that the twelve men in the jury box might be reluctant to sentence a fourteen-year-old to hang: “I feel very sure that it will not have the effect of deterring you from doing your duty as you see fit. For to suggest that you be cowed or deterred from doing your duty in regard to your oath would reflect your integrity.”
“The Crown asks you to find the accused guilty as charged.”
Glenn Hays then sat down, after spending the entire day on his feet performing some very fancy footwork. Years later, Steven’s father, Dan Truscott, reflected on how he felt as he sat in the courtroom watching Hays’ performance. “We felt they had only circumstantial evidence,” Dan told a newspaper in 1967. “We thought we had won the case until the judge’s and the Crown’s summaries.”
When Hays finished, the jurors turned to the judge. “We are going to have [a few] minutes’ recess, gentlemen, then I propose to charge you tonight on this case,” Justice Ferguson told the jurors. “Let the jury retire.”
It was another example—by today’s standards—of the frantic rush to judgment. It was bad enough the jurors had to endure two weeks of testimo
ny with not even full weekends to recover. Bad enough, too, that the judge gave the lawyers little time to prepare their summations. Now—after two exhausting days of closing arguments—the judge expected the jury to begin its deliberations that evening.
23
THE JUDGE’S CHARGE
“Gentlemen of the jury, this has been a very long and difficult trial and you have been very patient,” Justice Robert Ferguson said by way of introduction when the jurors returned from their ten-minute break. It was 4:45 in the afternoon.
“This is the most important duty that any citizen has to perform,” he continued. “Your churches may be the lid of respectability in the community, but you, gentlemen of the jury, by the barometer of that respectability, you are the screws that hold the lid down and in place. The whole character of your community depends on the way you do your duty in this case.”
Jurors may expect witnesses to lie and lawyers to twist facts to fit their theories, but they look to the judge for impartiality and guidance. A judge, in his concluding remarks to the jury, guides the jurors by summing up the evidence, clarifying matters of law and outlining what different weights to accord different types of evidence. But in Steven Truscott’s case, the judge’s charge to the jury played a significant role in sending him to the gallows.
To have such a young prisoner in the dock for the most serious charge in the criminal code was “so unusual as to be unheard of in this country,” the judge explained. “One would think that only a monster could be guilty of such a killing.” Lynne, he said, was killed “in the most shocking and revolting circumstances” and the accused charged with “this monstrous crime” was “just a lad of little more than fourteen years.” Nevertheless, he warned the jurors, “You must not permit the fact of his youth in any way to prevent you from bringing in [a] verdict in accordance with your conscience.” Justice Ferguson also cautioned the jury to weigh the evidence carefully. “Everyone who stands in that prisoner’s box is presumed to be innocent until he is proven guilty beyond a reasonable doubt.… You must be able to say: ‘I have no doubt. I am sure.’”