Until You Are Dead (updated)

by Julian Sher

  “My lord, may I have the jury polled?” Frank Donnelly requested.

  “Poll the jury,” the judge ordered. One by one, the twelve men of Huron County gave their verdict:

  Harold Vodden, a merchant from Blyth: “Guilty.”

  Louis Frayne, a farmer in Grey Township: “Guilty.”

  Fred Thompson, a farmer from Goderich: “Guilty.”

  Carl Lott, a labourer from Wingham: “Guilty.”

  Gordon Dick, a merchant in Seaforth: “Guilty.”

  Wilmer Dalrymple, a farmer in Tuckersmith: “Guilty.”

  Walter Brown, a labourer from Wingham: “Guilty.”

  David Kyle, a mechanic from Hensall: “Guilty.”

  John Deitz, a farmer from Howick: “Guilty.”

  Anson Coleman, a farmer from Stanley: “Guilty.”

  Clarence McDonald, the foreman, a milkman from Exeter: “Guilty.”

  Sidney Pullman, a barber in Seaforth: “Guilty.”

  It had not been an easy decision, according to Pullman. “There was nobody in there to get him,” he told a CBC researcher years later. “We found him guilty because none of us could come to any sense at all [about his story]. Not even one person argued [for his innocence].” Pullman’s story that none of the twelve jurors pushed for an acquittal was confirmed by Graham, who learned, indirectly, from one of the jurors that “the guilty verdict was reached early in deliberations.” It was only the qualms of one of the older jurors that delayed their deliberations. “An elderly juror didn’t want to soon leave this world with a conscience troubled by sending a young boy to the gallows,” Graham later reported. “Hence the mercy recommendation.” Indeed, the prospect of sending a young boy to the gallows did seem to weigh heavily on the minds of many of the jurors. “He said it was a terrible decision to have to make,” Wilmer Dalrymple’s wife later told the newspapers. “We have three sons of our own, you know. But he was sure the lad was guilty, and he had to do his job.”

  But Justice Ferguson had made it clear to jurors they had no choice—they could deliver the verdict, but he alone could hand down the sentence. The judge turned to the boy in the prisoner’s box. “Stand up.”

  “Steven Murray Truscott, have you anything to say why the sentence of this court should not be passed upon you according to law?”

  The boy looked up at the judge and said softly, “No, Your Lordship.”

  The judge looked at Steven and the entire courtroom. “Steven Murray Truscott, I have no alternative but to pass the following sentence upon you. The jury have found you guilty after a fair trial. The sentence of this court upon you is that you be taken from here to the place from whence you came and there be kept in close confinement until Tuesday, the 8th day of December, 1959, and upon that day and date, you be taken to the place of execution and that you there be hanged by the neck until you are dead. And may the Lord have mercy upon your soul.”

  The words stunned the boy. “His eyes filled with tears, Steven Truscott gasped in the dock,” according to the Toronto Telegram. The Toronto Daily Star said simply, “the boy turned pale.”

  Even some of the jurors were shocked. “It brought tears to our eyes,” says Sidney Pullman. “I thought jail would have been enough, but to say to a boy of fourteen to be taken, hanged by the neck until he’s dead, that kind of gets to your heart. When [the judge] came out with that it led me to think, ‘I wonder if we should have said something different.’” Apparently, some jurors thought a verdict of guilty “with a recommendation for mercy” would spare the boy from the noose.

  But it was too late for anyone to change the verdict. “Remove the prisoner, please,” ordered the judge.

  “It can’t be, it can’t be!” thought Doris when she heard the words “hanged by the neck until you are dead.”

  “He won’t hang,” Donnelly tried to reassure the stricken mother. “They wouldn’t hang a fourteen-year-old kid.”

  “Everything has gone wrong, so who’s to say what’s to happen,” Doris remembers telling him.

  “Hanging. We just didn’t believe it,” her oldest son, Ken, remembers, upon hearing the news. “You’re just sort of numb, you don’t believe you have even heard it.”

  A crowd of about two hundred, according to one news report, stood in front of the county courthouse on the town square to get a look at the prisoner. “The Crown attorney was leery of any type of commotion or violence,” OPP Corporal Sayeau recalls. “He wondered what we could do.” Sayeau called the police station to send a vehicle out to pull up behind the courthouse.

  “Steven, come on!” Sayeau called out, and he and the boy ran down three flights of stairs, out the back door and across the park into the car.

  “We sure put it over on them that time,” Sayeau says Steven remarked as the car sped away, avoiding the crowds. The comment shocked the OPP officer.

  “I couldn’t believe it, a fourteen-year-old kid, come out with that after just being sentenced to hang,” he says. “I found it astonishing. I would have been on the floor crying and screaming.”

  But crying and screaming were not in the emotional lexicon of the Truscott family. “It’s just my makeup,” Steve explains. “I just wasn’t brought up that way. It’s not the air force way.” Steve says he remembers hearing the verdict, but none of it felt real. “You kind of sit there stunned.… You couldn’t understand how they came to that conclusion with what they had,” he says. “It’s almost like it’s a fantasy world. I think it’s just too much for any kid to really comprehend.”

  For the Harpers, still grieving three months after the loss of their daughter, the verdict meant closure—of a sort. Publicly, the family would always maintain they were satisfied with the verdict. “I’ve believed the original verdict was right and just,” Leslie Harper said later. But privately, some members of the family revealed there were always lingering doubts about Steve’s conviction. “It’s hard on the family because they don’t know who did it,” says James Harper, Leslie’s cousin. “They just don’t know for sure.”

  John Erskine, the OPP identification officer who from almost the start of the investigation had his doubts about Steve’s guilt, was crestfallen. “He was white. He couldn’t believe it,” recalls his wife, Dee. “He was quite emphatic that he was not guilty.”

  Even some officers who remained convinced of Steve’s guilt were not necessarily overjoyed by the outcome. “I had mixed feelings,” admits Hank Sayeau, who played a central role in gathering evidence. “I don’t know where my sympathy lay there. I suppose toward the Harper family—Lynne was gone. At the same time, the Truscotts had a fourteen-year-old son who was sentenced to hang. I was glad that I wasn’t in the Truscotts’ position.”

  One OPP officer, however, was unwavering. Inspector Graham to the very end seemed determined to paint as dark a picture as possible of the boy he had helped send to the gallows. “When sentenced, his eyes were filled with anger, not with fear,” Graham wrote in a memo after the trial. The OPP investigator must have had a better vantage point to peer into Steve’s eyes than the journalists, who had reported a strikingly different picture.

  To reinforce his assessment, Graham told his superiors, “Dr. J. Senn, superintendent of the Ontario Hospital, kept observation of the accused throughout the trial. His emotions were only slight and he could be best described as callous.” In fact, Dr. Senn reported that “the boy showed little or no emotion” and did not give the impression that he was “happy being the centre of attention.” He “flushed occasionally” during the more sexually explicit testimony and was “following the evidence quite intently.” The word “callous” never appeared in Dr. Senn’s available reports.

  Graham’s conviction that justice had been done was shared by many townspeople. “After the verdict most people just thought he was guilty,” explains Henry Lamb, the garage station owner who watched most of the trial. While Lamb was shocked—“I couldn’t believe it when they brought in the guilty verdict for that kid. The evidence they had wasn’t even c
ircumstantial”—he found that most of his fellow citizens did not share his outrage. “It was 1959 and back then we didn’t put innocent people in prison,” Lamb says. “The thing is, they wanted to have somebody and put them away so that everyone could let their little girls out to play again. People were just happy to have the case finished and over with.”

  That determination to quickly bury a disturbing trial was reflected in the major local paper, the Goderich Signal-Star. “The Truscott trial was the most important criminal case of the year in Canada.… Now it is a matter of history,” the newspaper concluded, somewhat prematurely.

  On the base, opinion was more divided. Allan Durnin’s father, who sat through the trial, told his son he thought the evidence indicated Steve had to have been in the bush with Lynne. “And in my mind, when I got thinking about it afterwards, I thought he must have done it,” Allan says. Allan recalled the confrontation at school he had with Steve on the following Thursday, when he questioned whether his schoolmate had really taken Lynne to the highway. “Why did he get so upset in that washroom if he had no connection at all with her?” Allan asks.

  But for many of the children, especially for those who had taken the stand against their own classmate, the verdict was hard to take. “All we really knew was that he was our friend,” says John Carew. “He was a nice guy, he played hockey and softball like we did, and he was like us. There was no thought that he was guilty. It blew us all away.”

  “When they read the sentence out, I just about collapsed,” remembers Bryan Glover. “When they said he’d be hanged by the neck, shudders just went up my spine.”

  Doug Oates, who had stood up so vociferously against the onslaught of the Crown prosecutor, to this day cannot fathom why the jurors did not believe his testimony about seeing Steve and Lynne cross the bridge. “I was flabbergasted. I just couldn’t believe that they could find him guilty,” he recalls. “The fact that you can convict somebody with really no evidence other than circumstantial evidence—I think that’s just abhorrent.”

  To his mind, the trial never resolved the mystery of what happened on June 9, 1959. “There are only three that really know: Steven, whoever did it and God.”

  The lawyers who had been sparring for two weeks over Steven’s fate slipped quietly out of the courtroom through the door to the right of the judge’s bench. Donnelly exited first, followed by Hays. Accompanying them was Donnelly’s colleague Dan Murphy. Murphy recalls that Hays seemed concerned the Crown had a teenager on their hands condemned to hang.

  “Well, what are we going to do now?” the prosecutor asked.

  “That’s your problem, not mine,” Donnelly said curtly, and walked away. It was the only sign of bitterness Murphy ever saw from his colleague.

  “The next day, it was business as usual,” Murphy recalled. In the office the morning after the trial, Donnelly handed Murphy an insurance file to pursue and never talked to him about the Truscott case again.

  Donnelly had been oblique when reporters had questioned him right after the trial about an appeal. “It is apt to be a few days before we are able to make a decision,” he said.

  But that “we” would not include Donnelly. Donnelly could not handle Steve’s appeal. Two days after losing Steven’s case, Donnelly got the promotion he had delayed accepting at the start of the summer—a judgeship on the Superior Court of Ontario. The move was “acclaimed by people of all walks of life,” the Goderich newspaper reported in gushing terms. Hundreds of tributes came in the form of phone calls, telegrams and letters to “one of this country’s outstanding lawyers.”

  The Truscotts were grateful for Donnelly’s efforts. “I think he did the best that he could,” Doris says, but with hindsight she adds, “I felt that had we had a big-time lawyer, he could have done better.”

  As Doris’s son sat in the Goderich jail, Donnelly began what would become an illustrious career on the bench. Today, in the courtroom where Donnelly lost his most famous case, where Steven Truscott was sentenced to hang, a gold-and-brass plaque is mounted on the wall. Just above where the jury sits, the plaque pays tribute to “Frank Donnelly, Judge,” the letters still shiny on the dark brown background.

  AFTERMATH

  25

  THE TROUBLE WITH TIME

  Timing, in murder as in life, is everything.

  Steven’s innocence or guilt could be weighed by the credibility of the eyewitnesses: do you believe Dougie Oates and Gord Logan, or do you believe Butch George, Jocelyne Gaudet and Philip Burns?

  But in the end, even if you believed that the children who claimed to see Steve and Lynne by the river were wrong or liars, you would still have to convince yourself that Steven had time to murder Lynne Harper. Theoretically, a timeline where Steven is guilty goes like this:

  Steve leaves his house around 5:50 p.m. to get coffee for his mother. He dashes over to Jocelyne’s house, a couple of minutes away, to see if she wants to go to the bush. He still has a few minutes to make it to the store and home before 6:00.

  After supper, Steve bikes around the base and along the county road, until he makes it to the school around 7:00 p.m., where Lynne approaches him for a ride. They leave the schoolyard sometime between 7:00 and 7:10 and very soon cross paths with Richard Gellatly, on his way home from the river (meaning Richard is seriously off on his time by about fifteen minutes and that his father is also wrong about the time his son arrives home).

  It takes Steve just over three minutes to get to the tractor trail from the school, according to a police test of bike times. Around 7:15, he and Lynne turn off the county road at the entrance to the tractor trail. According to the scenario suggested by the prosecution at the trial, Steve then walks down the laneway about three hundred feet with Lynne, somehow subdues her, carries her limp one-hundred-pound body—and his bike (since Jocelyne and other children never saw it)—into the bush over a barbed wire fence, scratches her badly but manages to avoid any barbed wire cuts on his own body, drags her ninety feet, strangles and rapes her, rolls up her socks neatly, zips up her shorts, drops her panties thirty-three feet away, breaks off saplings three-quarters of an inch to an inch thick, lays them over her body, puts back whatever clothes of his he removed, cleans himself off, takes his bike back to the tractor trail and bikes to the schoolyard to chat with his friends.

  All of this supposedly within earshot of Jocelyne, who, according to the prosecution, is on the tractor trail at about the same time. All of this, without breaking a sweat, scratching his face or neck and not getting a single drop of blood on his clothes. And all of this within about forty-five minutes—depending on which witness you believe—or as little as thirty minutes.

  As a fourteen-year-old, Steven would have to exhibit almost pathological nerves of steel to carry out a crime like this. Perhaps he snaps when he is in the bushes with Lynne, some sexual flirting goes too far, he strangles her in a moment of panic. Perhaps he even blocks the horrible deed from his mind and emerges from the bushes calm and collected. His penis sores will be discovered in a few days. When friends tease him, he makes up a story about looking for calves in the bush. When the police question him, he invents a car at the highway.

  Is all of this possible? Mathematically, yes. But it stretches credulity and common sense beyond the breaking point.

  On the other hand, is it possible to construct a more reasonable scenario that explains what could have happened on the evening of June 9 without distorting logic or the memories of most of the witnesses:

  6:15 Lynne Harper leaves home and makes her way to the school. Steven leaves his home a little later and is spotted by several children and adults biking around the county road.

  7:02 Philip Burns leaves the bridge.

  7:11 Philip reaches the entrance to the bush. He does not see Steven because Steven and Lynne have not left the school yet.

  7:14 Philip meets Jocelyne at the south end of the bush and, shortly after, Butch George.

  7:15 Jocelyne reaches the laneway, turns in and walks
along the trail before turning back to the county road.

  7:16 Jocelyne meets Butch at the entrance to the laneway. Butch heads down to the river, but Jocelyne—contrary to her testimony about going to the bridge—heads for Lawson’s farm.

  7:20 Richard Gellatly leaves the bridge on his bike. (He testifies it was “around 7:20 p.m.”)

  7:21 Jocelyne arrives at Lawson’s barn and chats for a few minutes. In court, Lawson said “it was 7:25 when she left.” She doesn’t see Steve or Lynne because she is still at or near the farm.

  Around 7:25 Philip Burns reaches the school grounds. He does not see or notice Steve and Lynne. Steve glances at kindergarten clock as he and Lynne leave the school grounds. Steve and Lynne start their journey down the road. Shortly after, they pass Richard Gellatly.

  Around 7:30 Steve and Lynne cross the bridge. Police say it takes almost five minutes to bike from the school to the bridge. Both Dougie Oates and Gord Logan see Lynne and Steve cross the bridge.

  7:31–7:32 Steve leaves Lynne at the highway. The police estimate the total time to ride a bike from the school to the highway is six minutes.

  7:34–7:35 Gord Logan sees Steve return alone at the bridge.

  7:45 Allan Oates see Steve standing alone at the bridge. Steve heads back to the school area.

  Around 8:00 Steve arrives back at the school grounds.

  This timeline matches the testimony of defense witnesses Gord Logan, Allan Oates and Doug Oates. It is also supported by the testimony of prosecution child witnesses Richard Gellatly, Bryan Glover, Michael Burns and even to some degree the testimony of Philip Burns and Arnold George. It corresponds to the testimony of most of the children who saw Steven leave or return to the school.

  As for the adults, this scenario coincides with the memory of farmer Bob Lawson and of Richard Gellatly’s father. It is consistent with the testimony of John Carew’s parents and of Sgt. William McCafferty, the man who gave Philip the time at the river, and it matches most of the recollections of Beatrice Geiger. It is not inconsistent with the two Brownie mothers at the school, who saw Steve and Lynne between 7:00 and 7:10 but never saw them leave the school grounds.