by Julian Sher
“I have heard that now,” Ferguson said sharply. “I don’t agree with you.” “Thank you, my lord” was all Frank Donnelly said as he sat down. He had gone to the brink; he had pushed the judge and questioned his impartiality as much as he dared.
For the moment.
The judge turned to the prosecutor’s table.
“Have you got any objections to this charge, Mr. Hays?”
The prosecutor, as pleased with the judge’s charge as Donnelly was horrified, had only a few minor details to bring up and Ferguson readily agreed to them. “Recall the jury,” he ordered, and the twelve men, somewhat confused, trooped back to the seats they had vacated about fifteen minutes earlier.
“During your absence, gentlemen of the jury, I have been requested to point out one or two other things to you and to correct one or two slips that I made,” the judge began. “Now the first is that Philip Burns was, of course, not sworn, and he said he didn’t see Lynne and Steve on the road as he went north, and no one corroborates him in that respect, so that his evidence is worthless so far as you can use it in convicting the accused boy.”
It was a powerful correction, but the judge moved quickly to undercut it. “But you can hardly corroborate a statement that ‘I didn’t see somebody,’” he went on. “You may corroborate that [Steven] wasn’t on the road, and I expect that is what Philip meant, that Steve and Lynne weren’t on the road as he passed along it.”
Ferguson got it completely backwards. The defence claim was not that Steve and Lynne were not on the road—that, after all, was what the prosecution was saying all along to prove that Steven was in the bush murdering her. The defence claimed that Philip may well have been off the road by the time Steve and Lynne began their bike ride down to the highway, so he never would have seen them.
Donnelly had also asked the judge to remind the jury how calm and relaxed Steven appeared, specifically to the police officers who interrogated him. Ferguson told the jury that Steven “was perfectly normal” throughout “all the interviews and all the statements he gave to one person and another, including his mother.” The judge again had managed not to mention the police.
“I am asked to remind you that it is a theory of the defence that there was sufficient blood on the body of the girl that anybody who had attacked her was bound to show evidence of blood,” Ferguson continued, and then he threw a characteristic counterpunch. “But don’t forget that the evidence is that the blouse was pulled around the neck. If there was blood, and there would be, it wouldn’t necessarily put blood on the attacker.”
Ferguson then tried to correct one of his serious mistakes. He had misled the jurors by reporting that Steve claimed he saw the licence number of the car at the highway. In fact, Steve had told police only that he had seen the number 981-666 on the plate of another car that had passed right by him as he was biking down the county road.
“I made an error in telling you that the number Steve gave of the car was the car on Number 8 Highway,” the judge admitted. “This was a car on the county road, but it was not the car on Number 8 Highway.”
It was hardly the clearest of corrections. Not surprisingly, several jurors still clung to that wrong impression the judge—six times in his charge to them—helped plant in their minds about Steve’s guilt.
“He says this car came along and she got into the car,” says juror Sidney Pullman, “and he could see from where he was at this time on the bridge, when he looked back he got the number of this car.”
Fresh with the judge’s new clarifications, or new confusions, the jurors again retired to their chambers. Defence lawyer Donnelly was still not satisfied. “My lord, would Your Lordship not consider putting the theory of the defence in connection with those lesions [on the penis] to the jury?” he asked.
“All right,” Justice Ferguson replied as he called back to jury a second time.
“I am sorry to have brought you back again, gentlemen.” He reminded them about the defence theory that the lesions on Steve’s penis could have been caused by masturbation. “They could have been caused by any roughness or a knothole or any mechanical device or anything of that kind,” Ferguson said. “Now that is a matter that you will have to decide for yourselves, and you use your own common sense as to that phase of it.”
It was 8:38 p.m.
During the long wait for the jury’s verdict, Steve’s parents grabbed a quick bite at a nearby restaurant with Frank Donnelly. Doris remembers she shot a glance at Inspector Harold Graham, as the man she blamed for her family’s woes walked in. “He had such a smug look on his face, as if to indicate that everything was all set,” she remembered.
For close to three hours, the twelve men of Huron County deliberated behind closed doors. They had supper brought into their chambers. A milkman, a barber, five farmers, three labourers and two merchants. They discussed, debated and pondered. No one but the twelve men knew exactly what went on in that room—what evidence they discarded, what testimony they clung to, what questions they asked. One thing was certain: they were stuck on the key issue that at least two boys had spotted Steven and Lynne crossing the bridge.
At 10:05 p.m., the twelve jurors returned to the courtroom. The guards escorted Steven Truscott back to the prisoner’s box. He turned to the jurors who would decide whether he lived or died.
“Gentlemen of the jury,” Justice Ferguson intoned, “have you agreed upon your verdict?”
The courtroom was silent. The news reporters, most of whom had not attended the trial because of the publication ban, now sat anxiously in the spectators’ benches at the back of the courtroom, their pens ready for the big announcement.
It was not to be.
Clarence McDonald, the jury foreman, turned to the judge. “No, my lord, we have not.”
“You have not?” said the judge, barely containing his surprise.
“We want some more information,” McDonald explained. He held a piece of paper in his hand. “Can I read this?”
“Yes,” Ferguson agreed.
“A redirection of the evidence, corroborated or otherwise,” the foreman requested, “of Lynne Harper and Steven Truscott being seen together on the bridge on the night of June the 9th.”
“Is that all?”
“That is it.”
After all the testimony and arguments, after more than seventy witnesses and an equal number of exhibits, it all came down to two boys at a bridge: Dougie Oates and Gordon Logan, who insisted they saw Steven and Lynne cross the river together.
For the first time in the trial, Justice Ferguson came as close as possible to giving a fair, balanced and clear summary.
“You have the evidence of Douglas Oates, who says that in the neighbourhood of about 7:30, he and Karen Daum were fishing for turtles at the bridge, and while they were fishing for turtles and arranging them in their carriers, Steve and Lynne came by on a bicycle. ‘I saw Steve and Lynne going by me on the bridge. I put up my hand and said “Hi.”’ Now that is the evidence of Douglas Oates.
“Allan Oates says he watched television from 6:00 until 7:00 at his home and then he went down the road toward the bridge, and when he was eight hundred feet away from the bridge, he noticed Steve on the bridge alone, without Lynne.
“Then you have Gord Logan who testified. He said he was swimming at 7:30, and then he saw Steve and Lynne go by on Steve’s bicycle and they were riding double. She was on the crossbar. He said: ‘They were on the north side of the bridge going toward Number 8 Highway, and I saw Steve drive back and stop on the bridge.’
“That is the evidence that they were on the bridge at 7:30,” Ferguson concluded, before he turned to the prosecution’s view of events.
“Jocelyne Gaudet and Arnold George were down there looking for Steve at that time, or around that time, and they saw nothing of him. Logan was fishing from the rocks 640 feet east when he saw this going on. It is suggested by the Crown that he could not have distinguished who the riders were, even if he had seen a bike. It is su
ggested by the Crown that when [Douglas] Oates says he saw Steve, he saw him alone at 6:30 and not at 7:30. It is suggested that Allan [Oates] would make a very shaky recognition of Steve at eight hundred feet. Then you of course won’t forget Philip Burns’s evidence that he left the river between 7:00 to 7:10 and walked up the road and saw nothing of Steve and Lynne.”
It was the best presentation of both sides of the case Ferguson had ever made. “I have been over all this before and I don’t want to repeat it too often,” he concluded. “Is there any other branch of the evidence you would like me to go over for you?”
“That is that I was asked for, my lord,” the jury foreman said. “I hope that covered it.”
It could have ended there. The jurors could have gone back to the room to ponder the evidence of Dougie and Gord as Ferguson had just laid it out to them with clarity and concision. We will never know if events might have turned out differently.
But Justice Ferguson seemed determined to have one final word. He turned again to the twelve jurors. “That is the evidence with respect to the two of them being on the bridge together. They were there in the neighbourhood of 7:25 or 7:30,” he began. Then he spoke the words that, once again, cut the ground from under all of the defence work: “But as I pointed out to you, you must reject the story that he went to Number 8 Highway and the girl got in a car there, you must reject that story to convict him. If you find that although he went to Number 8 Highway with the girl and he brought her back again—and she was back, somebody brought her back—you will have to find that he did bring her back again. Then the going back and forth across the bridge is of very little importance—very little importance because the question is: did he kill her? That is the point in this case.”
It was not of “very little importance”—it was more important than anything else said in that courtroom. If Steven and Lynne crossed that bridge, he did not kill her. End of case.
But Justice Ferguson, in his final words to the jurors, had told them just the opposite. That even if they believed part or all of the testimony central to Steve’s defence—that Dougie and Gordon saw him and Lynne bike across that bridge—they could somehow still conclude that Steven killed Lynne and find him guilty.
“If there is any other help I can give you, don’t hesitate to ask me, gentlemen,” Ferguson said. “But that is all I can say about it now.”
The chairs scraped against the floor as the twelve jurors once again stood up and walked out of the box. As the door closed behind them, a frantic Frank Donnelly again stood up to address the judge.
“My lord, I know I raised this before, but I do submit that the evidence is that Steve came back alone. Logan’s evidence is that Steve came back alone. No one said he came back with the girl.”
“I didn’t say he did,” Ferguson retorted. “I said Steve came back alone and that Logan said he saw him come back alone.”
“Then you said: ‘If you find that he went to Number 8 Highway and then brought the girl back,’” Donnelly pursued. “I submit there is no evidence to warrant them finding that.”
“Yes, there is,” the judge insisted. “There is evidence that would warrant it: she was back. Dr. Penistan’s evidence.”
“The body was found in the bush,” Donnelly conceded, but he pressed on. “She might have come back some other way. This is a most important piece of evidence and I do submit with respect, my lord, that it is one of the most important theories of the defence, and the way Your Lordship comments on it, it pretty well destroys the effect of that theory.”
Ferguson was fuming. Dan Murphy, the young colleague who was sitting next to Frank Donnelly, later recalled that the judge’s face turned red with anger. “Oh, he was furious. He put his hands on his desk so hard, he spun his chair right around,” Murphy said, chuckling at the memory. “He was so upset at Donnelly.”
“Call the jury back,” Ferguson said sternly, once he had calmed down.
“I dislike having to bring you back so often and interrupt your deliberations, but I do it only at the request of counsel,” the judge told jurors when they had returned to the courtroom for the fourth time. “I told you when you last were out here that if Steve brought Lynne back across the bridge, it doesn’t make much difference whether he went over the bridge or not. But there is, of course, no eyewitness that says he did.”
It was a grudging concession to Donnelly’s pleas. But Justice Ferguson could not leave well enough alone. He decided to recapitulate, one more time, the eyewitness testimony. Dougie and Gord said they saw Steve and Lynne, he conceded, but he seemed to suggest that their stories did not matter. “They would also have been there at a time when Jocelyne Gaudet and Arnold George had an opportunity to see them, and they were the people who are looking for them. The others were not. That is all.”
The jury retired.
And again, Donnelly rose to face the judge.
“I am very reluctant to make a further objection,” he said. But he could not ignore what the judge had just done: in effect, he told the jury that the testimonies of the prosecution’s witnesses were more reliable than the those for the defence, because Jocelyne and Butch had claimed to have been on a hunt for Steve.
Donnelly patiently tried to point out to the judge that at the bridge, Jocelyne and Butch could have missed Steve’s return alone from the highway. “One of them went swimming and the other then went home. I do think it is important to correct the impression that Gaudet and George were ahead of Steve and Lynne on the road because that is not the evidence, my lord.”
“I didn’t give an impression, I don’t think,” Ferguson maintained.
“You said that Gaudet and George—”
But Judge Ferguson’s patience had run out. He cut off the defence lawyer in mid-sentence and turned to the clerk. “Call the jury back. Please, will you.”
For the fifth time, the jurors returned to the courtroom. After a judge has charged the jury, it is rare for a jury to come back so many times for clarifications; it was a reflection of the confusion and missteps in the Truscott trial that the twelve jurors had to make so many trips to and from the jury box.
“The last word I said to you, when I spoke to you before, was that Gaudet and George had an opportunity to see them. Well, Gaudet and George would not have been at the bridge when Steven and Lynne went on to Number 8 Highway,” Ferguson said, making the point for which Donnelly had fought so hard.
But then, the judge added, “It is for you to say, but do you not think they would have had an opportunity to see Steve if he came back in five minutes?” Not, of course, if Arnold was busy swimming in the river and not if Jocelyne had gone home, as they both testified they did. Donnelly had pointed this out but the judge pointedly ignored it. “Could [Steven] have got back without Jocelyne Gaudet and George having seen him? It is for you to say, not me.”
It was now 10:45 p.m. The jury, as drained as everyone else in the courtroom, retired for the last time.
“Now,” the judge turned to stare down Donnelly. “Have you any objection to that?”
Defiant to the last moment, Donnelly found the courage to make one more stab at it. “Just that I think George went to the river to swim,” Steven Truscott’s lawyer said. “He went down to swim and he wasn’t hanging around the bridge, my lord.”
The judge did not even deign to answer.
He turned to the guards. “Take the prisoner out,” he ordered.
This time, they would not be gone for long.
24
THE VERDICT
Outside the courtroom, in the halls of the court building, they waited. The families, the friends, the police, the curious. They stretched their legs, shuffled their feet, rubbed their eyes and cleared their throats. Anything to avoid thinking about what was to come.
Lil Woodson, the neighbour who sat beside Doris Truscott through most of the trial, dashed to a phone to tell her husband she would be late because the jury had taken so long. She marvelled at her friend’s resolve. “Doris
was very solid. She never really broke down at all,” she remembers. “She was a pretty tough lady.”
Frank Donnelly, despite the rough ride the judge had given him, remained confident to the end. “After the summations were finished, I would say that most people thought for sure Steven would be acquitted,” recalls Dan Murphy.
“Things are looking pretty good,” Donnelly assured Steve’s parents. “He had us fully convinced that it was going to go our way,” Doris Truscott remembers.
Some of the OPP officers appeared to be the most nervous. “While we were out waiting for a verdict, none of us were sure,” Hank Sayeau says. “We thought we had a good case—we didn’t know if the jury would buy it against a fourteen-year-old. There’s some anxiety about whether they are going to buy your case, about whether you have put the jigsaw together.”
The anxiety did not last long. This time the jury stayed away for less than ten minutes. At 10:55 p.m., the twelve men walked back into the courtroom.
They were ready with their verdict.
Doris Truscott wrung her hands as the jury took their seats. For three months she waited as her son sat in a jail cell. For fourteen days, she and her husband had sat behind their son in the courtroom, not being able to see his face as he was called a liar, a rapist, a murderer. Now, finally, the moment of truth was near.
This was not Hollywood; it was not the judge who intoned the fateful words but the court registrar, Jean Clements, who spoke. “Gentlemen of the jury, have you agreed upon your verdict?” she asked.
“Yes, my lord,” answered jury foreman Clarence McDonald.
“Do you find the prisoner at the bar guilty or not guilty?”
“We find the defendant guilty as charged,” said McDonald stiffly, quickly adding, “with a plea for mercy.”
“A hush fell on the crowded courtroom,” reported the London Free Press. “It was broken later by the quiet sobbing of the boy’s mother.” Other women in the court also broke into tears. Steven Truscott was “ashen faced,” according to one reporter. “He went white,” his mother remembers. “He just looked like, ‘This wasn’t for real.’”