by Julian Sher
Since the case was for the most part circumstantial, the judge told the jurors they must be satisfied not only that the circumstances were all consistent with Steven’s guilt, but also that they were inconsistent with any other rational explanation. He cautioned jurors not to take any estimates of time too seriously. “If you and I were asked where we were last night, you may remember that you went out for a walk. If you were asked the exact time you went out you would probably have the greatest difficulty in telling anyone what the exact time was, unless there were some very special circumstances at the time which would impress the time on you,” he said. “I do not think you should get yourselves involved or tied up with a lot of 7:10, 7:15, or 7:20 or 7:25.”
Ferguson also correctly warned the jury to ignore one of the prosecution’s key pieces of testimony: Jocelyne’s account of her secret date with Steven. “Because he made a date to meet Jocelyne at Lawson’s bush is not to be used as evidence that he would take Lynne Harper there,” the judge explained. “The evidence of Jocelyne Gaudet is perfectly good evidence to show why she went to the bush to look for Steve, but it is not evidence at all as to proof that the prisoner took Lynne Harper to the bush.” No doubt defence lawyer Donnelly would have wished that the judge had not described Gaudet’s tale—fraught as it was with contradictions and outright lies about her time—as “perfectly good evidence.” But at least the judge had tried to prevent the jury from connecting any supposed date Steve and Jocelyne had with a plot to lure Lynne into the bush.
So far, so good. Having warned the jurors of some pitfalls, Ferguson then proceeded to lay out the facts of the case for the jury, or, at least, the facts as he saw them. It did not take long for the mistakes to start piling up.
He began with the bicycle tire marks. OPP Const. John Erskine, he said, testified that the marks were “similar” to the tires of Steve’s bike. Then, he added, as if to drive the point home, “The bicycle is not a common one.” Erskine, in fact, had only said that there was a series of vertical lines on the side of Steve’s tires similar to marks in the photograph of the bike tracks. He never made a match and he testified the tire marks had to have been made “some time” ago when the ground was “wet and moist.” The judge conveyed none of those important distinctions to the jury. Worse still, Steve’s fancy racer not being a “common” bike was beside the point, since it was the tires, not the bike, that were in question. No suggestion was ever made that the tires on Steve’s bike were anything but the most common tires found on the bikes of countless teenage boys in the area.
Justice Ferguson then moved on to Steven’s movements on the night of Lynne’s disappearance. He singled out the defence’s emphasis on the testimony of Dorothy Bohonus, who saw Lynne doing most of the talking with Steve at the schoolyard. “This has very little to do with this case, if anything,” the judge said, and then added: “It would not by any possible shade of reasoning justify or excuse a subsequent killing of the girl in any possible way, shape or form.” It was the first of several statements by the judge that could only be described as bizarre. Bohonus’s testimony was important for the defence case, since it helped contradict the prosecution theory that Steve had actively lured Lynne to her death. But no one had ever suggested Lynne’s chatter justified her murder.
Ferguson moved on to the central issue of why Philip Burns failed to see Steve and Lynne on the road after they passed Richard Gellatly. “So what is the conclusion?” he asked. “Where did Steve and Lynne disappear to? Where did he disappear to after he met Gellatly? Do you think Steve and Lynne went into the woods in that interval? That is entirely for you to say. It is not for me to say.” It was a loaded question. Steve and Lynne did not have to “disappear” anywhere if Philip only happened not to see them because he was too distracted or off the road when they began their bike trip. Furthermore, Steve and Lynne did not “disappear” at all, according to defence eyewitnesses who saw them cross the bridge, well past Philip Burns.
Justice Ferguson gave a cursory acknowledgment to this scenario when he asked, “Now then, did Steve and Lynne get over the bridge? Did they get over the bridge? That is one of the theories of the defence in this case, and they have brought forth evidence to justify it.” But then the judge seemed to dismiss that possibility with his very next words. “Philip Burns said he didn’t meet them. Looking at the map where could they’ve gone?” he asked, using the same suggestive phrase the Crown prosecutor had. “Where could they have gone after Gellatly saw them? Somebody will correct me if I am wrong, but there was very little room for them to manoeuvre unless they went into this lane.”
It was, to say the least, a prejudiced account of the testimony. And it only got worse. Ferguson asked Dougie Oates to step into the courtroom so the jurors could remember him. “This is Douglas Oates. He doesn’t quite say what hour he was at the bridge.” That, of course, was not only not true, but it also cut at the heart of the defence case. For Dougie had insisted, despite an intense grilling by the prosecutor, that he was on the bridge after 7:00 p.m., when he could have seen Lynne and Steve pass. The Crown had to convince the jury that Dougie was wrong, and Judge Ferguson now stepped in to help the prosecution.
He reminded the jury that Beatrice Geiger had seen Dougie on the bridge at 6:30 and had also seen Steven there around that time. He then strongly suggested that Dougie was wrong about seeing Steve with Lynne after 7:00. “You would think what Douglas saw was really Steven down [there alone] just as Mrs. Geiger saw.” Ferguson even went further than the prosecution in introducing a new attack on the testimony by Dougie and his older brother, Allan. Their mother, Genevieve, was not asked on the stand where either of her children were at that time. “Perhaps you will think, as I thought, that that was an extremely important omission,” the judge suggested. “If she knew that her son Douglas was at the bridge between 7:00 and 7:30,” the judge asked, “then one would have thought she would have sworn to it.” She did not swear to it because neither the defence nor the prosecution ever asked her.
The judge went on to discredit the defence’s next key eyewitness, Gord Logan. He reminded the jurors the bridge had a forty-inch cement railing. “You have to consider the nature of this cement railing and whether or not Logan could have seen all he says he saw.”
Ferguson then took the unprecedented step of introducing an entirely new theory into the case. It was one thing for the judge, in his charge to the jury, to seem to favour a prosecution theory he felt merited more consideration over a defence version he found dubious. But it was highly unusual, in the closing minutes of a two-week trial, for the judge to suggest to the jury an entirely new way for the crime to have occurred.
Crossing or not crossing the bridge was crucial to whether Steve was innocent or guilty. The prosecution insisted Steven never made it very far down the county road because he turned off the road into the laneway to murder Lynne in the bush. The defence maintained that Steven was innocent because two witnesses saw Steve far beyond the laneway, crossing the bridge with the girl on their way to the highway and returning alone. It was one or the other. But Justice Ferguson now suggested that even if Gord and Dougie saw Steven and Lynne cross the bridge, Steven could still be the killer because he might have returned with her after they made it to the highway.
“If the accused boy drove or rode Lynne Harper to Number 8 Highway, then you must ask yourselves who brought her back, because somebody brought her back.… Is it possible that the accused brought her back?” the judge asked. “You’ll ask yourselves, if this boy is guilty, why has he shown such calmness and apathy? Is it because there is an element of truth in his story that he took her to Number 8 Highway, because somebody brought her back? Did he bring her back?”
It was a preposterous idea, so outlandish even the Crown never dared to suggest it. The prosecution knew Steven did not have the time to bike more than a mile to the highway, then ride a half mile back up the county road, then go into the bush to murder and rape Lynne—all the while, never spotted by an
y of the many people at the bridge or on their long return voyage.
Ferguson made another serious mistake by telling the jury that police tests proved it was not possible “to see the numbers on a licence plate” from the bridge. The Crown, he explained, wanted the jury to dismiss Steve’s story as “fabrication because you couldn’t see the licence plate, much less could you read the numbers at that distance.” At no time did Steven ever claim to have seen licence plate numbers on the car at the highway; yet six times in his charge to the jury, the judge would repeat the same grievous error about plate numbers.
The judge continued his barrage on the defence case by casting doubts on the children who—without exception—testified that Steven appeared normal, unscratched and unbothered when he returned to the school at 8:00 p.m. “It is for you to say,” the judge continued, “whether at that hour of the night they were in a good position to observe his demeanour and the looks of his clothes.” But it was not night—the sun didn’t set for another hour on June 9, less than two weeks away from the longest day of the year. At 8:00 p.m., there was still enough sunlight in the sky for children to be swimming and playing baseball. There was enough light for Lyn Johnston to notice the colour of Steve’s shirt, pants, socks and shoes from twenty-five feet away. Surely that was enough light for Steve’s friends to have noticed any blood, scars or even sweat on the teenage boy a few feet away from them.
“There are certain points that are clear from the evidence,” Ferguson said as he began wrapping up his charge to the jury. “First that they left the school somewhere around 7:00. Assuming that you believe these witnesses, Gellatly particularly, and Mrs. Nickerson and Mrs. Bohonus, they left the school around 7:00 and Steve returned alone at 8:00 and Lynne Harper was found dead in the bush.” What was clear was that Ferguson either did not remember the evidence or was deliberately misrepresenting it. Richard Gellatly in particular did not say Steve and Lynne left the school around 7:00; he insisted it was closer to 7:25.
The judge also reminded the jury of another key defence point—that there were “no marks left by the boy” at the crime scene—before taking a swipe at it. “There were no marks, except there are two footmarks that fit the position [where Lynne was] lying.” Justice Ferguson stressed to the jury that one of the searchers, Flying Officer Glen Sage, saw a print, and the judge seemed to chide the police expert for not being as sharp. “[Sage] said that he saw the marks, and one looked as though it had been made by a crepe shoe. One would have thought that Corporal Erskine would have been as observant.”
On the debate over the soiled underpants that the police removed from Steven in jail, Ferguson also appeared to come down squarely on the side of the prosecution. “It is argued by the defence that if the underpants had been fouled and dirty and [had] blood on them, why didn’t Dr. Brooks and Dr. Addison find them,” the judge explained, referring to the extensive examination the two doctors made of Steven on the Friday night of his arrest. The judge told the jury not to worry about that niggling detail: “They asked the boy to take off all his clothes and they didn’t examine the pants.”
By any measure, Justice Ferguson’s charge to the jury was shockingly biased and unbalanced. There was not necessarily anything legally wrong with the judge’s directions; his explanation of the law was clear and concise. But in reviewing the case, he consistently attacked every single defence claim and, without exception, let the prosecution theories go unchallenged. His charge mentioned twenty-nine pieces of evidence and excerpts from witness testimony; fourteen could be considered defence points, fifteen prosecution positions. Ferguson made negative comments or raised critical questions on every defence item; his statements on all of the elements in the prosecution case were either positive or neutral. Worse still, he introduced new theories that completely gutted the defence’s main case.
“You may bring in a verdict of not guilty or you may bring in a verdict of guilty as charged. There is no other verdict open to you in this case on this evidence,” Justice Ferguson concluded. “You are now free to retire, gentlemen, and consider your verdict.”
It was already five o’clock in the afternoon—but the day was far from over.
In a flash, defence counsel Frank Donnelly spoke up. “I have a number of objections, my lord,” he said, trying to control his irritation. “I would have thought the objections should be made now, before the jury gets out.”
“They are not going any place,” Ferguson said curtly.
“But before they discuss the matter,” Donnelly pleaded.
“I will adjourn for five minutes anyway,” the judge answered. The jury had already been sent away. The judge stood up to go to his chambers. The guards led Steven away.
When the court resumed—with the jury absent—Frank Donnelly could barely contain his anger. It was bad enough sitting through a day of the prosecution’s summation, watching Glenn Hays twist and turn the evidence to support his case. That was to be expected; it was part of the sport and sparring between lawyers. But to watch Justice Ferguson unravel and leave in tatters the defence case was too much for Donnelly.
Lawyers have the right to ask a judge to redirect the jury in order to clarify points in his charge. The lawyer raises one or two issues and a judge briefly calls back the jury to make the appropriate changes. But in the Steven Truscott case, nothing was simple. The jury would be called back so many times, they ended up playing an exhausting game of musical chairs.
Donnelly began his critique of the judge’s charge with the simple point that Philip’s testimony about not seeing Steve on the road was unsworn and uncorroborated.
“It is difficult to corroborate that, isn’t it?” the judge said grudgingly. “All right. I didn’t tell them. I should have.”
Donnelly then noted that it would take Philip thirty minutes to walk home, so the timing of his meeting with Jocelyne seemed off. Other boys on the road, such as Bryan Glover, never saw Philip. “So my submission is that Burns must have been off the road because Glover didn’t see him,” Donnelly explained in a clearer fashion than he ever had when the jury was present.
“All right, I will tell them that,” the judge promised, but soon added, “I don’t know the point you are getting at. What difference does it make?”
All the difference in the world, of course. The difference between the hangman and freedom. If Philip was off the road, perhaps already at the school, then no wonder he did not see Steve and Lynne on the bike—a linchpin of the prosecution case was gone.
Donnelly then moved on to the core issue. “I do submit to Your Lordship that your charge to the jury could leave them with no impression except to wipe out the theory of the defence that Douglas Oates and Gordon Logan saw this boy and girl go north across the bridge.”
“I don’t know where you got that impression,” Ferguson said firmly. “I thought I made it plain [that] it is for them to decide and not me on those points.”
Donnelly quoted the judge’s strange words to the jury about Steven taking Lynne to the highway and then bringing her back. This was an unproven, new theory that cut the heart out of the defence case, Donnelly complained. “There is no evidence to indicate that he brought her back,” Steve’s lawyer argued. “Any evidence would be that he didn’t bring her back.”
“Well, she was back. This is where they may draw the inference he brought her back,” Justice Ferguson insisted, still not getting the point, “because she was back.” Donnelly was forced to move on, but the issue would soon flare up again.
Donnelly asked the judge to consider that Steve seemed relaxed and natural after Lynne’s disappearance not only to his school friends, but also to the police. “The police and various officers said he was very calm and co-operative and trying to assist and was just a normal fourteen-year-old boy.”
“They [the jury] might think the person who committed this killing was capable of doing anything” was the judge’s rebuttal.
“It is an important theory of the defence, my lord. There is no e
vidence that the person who committed this killing would be capable of talking quite normally to five or six police officers.”
“I thought I mentioned it,” said the judge. (He had not.) “But I can mention it again, if you wish.”
Donnelly also pointed out how the judge had erred in telling the jury that Steven claimed to be able to read the numbers on a licence plate from his vantage point on the bridge. The judge was confused, Donnelly hinted politely.
Uncertain, the judge turned to the prosecutor. “Is that your recollection?”
“Yes, my lord,” Glenn Hays admitted quietly.
“All right,” the judge muttered, embarrassed.
But Donnelly was not through.
“And with the greatest respect, my lord, I submit that the jury listening to your charge could not help but get the impression that you consider a verdict of guilty was warranted on the evidence,” Steven’s lawyer said. It was as close to calling a judge biased as a lawyer could go.
The judge’s five-word response was stunning.
“What is wrong with that?”
Donnelly could scarcely believe what he had heard. “I submit the matter should be left with the jury,” he said, stating what should have been obvious in any court of law, “rather than put it that strongly to the jury.”
“I didn’t put it strongly to them at all,” the judge protested. “I didn’t put that strongly to them. I didn’t take it away from them.”
“It results, in effect, [in] taking the matter away from the jury and wiping out the defence theories,” Donnelly said, standing his ground.