Until You Are Dead (updated)

by Julian Sher

  Only two people have to be wrong for this scenario to work: Donna Dunkin has to be mistaken about seeing Richard and Philip leave together; and Jocelyne Gaudet lied or was mistaken about almost all of her times and about going to Lawson’s farm before she went to the bush.

  There is no absolute proof that this is how and when events occurred on June 9. But there is enough reliable evidence to indicate it could well have happened this way. That is what reasonable doubt is all about.

  Of all the prosecution’s theories about timing, nothing was more pivotal than Philip Burns’s story. It was the central piece of evidence that allowed the prosecution to put Steve in the bush with Lynne. The logic went like this: Philip, on foot, and Richard Gellatly, on his bike, leave the bridge within moments of each other. Richard passes Steve and Lynne on the county road on their way down to the river. Philip makes it to the bush, without ever seeing Steve and Lynne. Therefore, they must have exited the county road at the tractor trail and gone into the bush. What if it was based on bad timing, incomplete eyewitness accounts and flawed logic?

  For the Crown’s timing to work, Philip obviously had to get to the laneway after Steve and Lynne had made it there. If he got there before or about the same time, he presumably would have bumped into them or seen them either on the road or turning into the bush. The county road offered an unobstructed view of the bush and the laneway.

  The simplest calculations would have revealed the prosecution’s numbers did not add up—or rather, they added up to a conclusion of innocence, not guilt.

  OPP Constable Trumbley determined it took Philip only six minutes to walk 2,059 feet from the bridge to the tractor trail at the northern edge of the bush. For Steven to be guilty, during the same six minutes Richard had to bicycle from the bridge to the south end of the county road where he met Lynne and Steve, and then Lynne and Steve had to have enough time to make it into the bush without being spotted by Philip. Richard had to bike anywhere from about 3,800 to 4,200 feet from the bridge before he passed Steve and Lynne—the exact spot was never determined but it was somewhere between the end of the bush and O’Brien’s farm, not far from the school.

  Assuming Richard defied gravity and pedalled as fast going uphill towards school as he did going towards the river, according to police times it would still take him just over three minutes to reach Steven and Lynne, depending on where they crossed paths. Steve and Lynne would need an additional one and a half minutes to make it to the laneway. In all, more than four and a half minutes would have elapsed from the time Richard and Philip supposedly left the bridge together. In that time, little Philip, according to the police, would be less than a minute and a half from the laneway, or about 440 feet—with a clear line of sight to the trail. Once Steve and Lynne reached the laneway, they still had to get off their bike and walk along the trail, giving the rapidly approaching Philip even more time to spot them. In about eighty or ninety seconds, he would be right at the lane entrance, and Steve and Lynne could not have been very far down the lane as they made their way on foot along the rutted path.

  This scenario is based on official police times. But the prosecution case weakens significantly if one factors in more realistic bicycle times. Richard himself told police it took about twice as long to get home from the swimming hole than to go down to the river from the base, because of the steady hill to climb from the bridge to the bush. The police also made the dubious assumption that Steve, carrying Lynne on his bike, would travel at the same speed as a single cyclist. In fact, one test later indicated it could take two people riding as much as twice as long to make the journey.

  Assuming more accurate bike travel times and a meeting point with Richard halfway between the bush and the school, just over six minutes would have elapsed before Steve and Lynne arrived at the tractor trail—roughly the same time the police said Philip took to reach the entrance to the bush, In other words, Philip should have bumped right into Steve and Lynne just as all three approached the laneway.

  It gets even worse for the prosecution if you take into account a serious miscalculation the police made of Philip’s walking time.

  In court, no one doubted the accuracy of the OPP’s timing of Philip’s walk home. That was a shame, because a more scientific estimate of his journey would have revealed a startling possibility—that Philip did not see Steve and Lynne on the county road because he himself was not on the county road at the time.

  On June 20, Philip himself re-enacted his stroll home for the police, while Const. Donald Trumbley followed slowly in his police cruiser. According to Trumbley, Philip took twenty-four minutes to make the entire trip. Trumbley told the court it took Philip six minutes to go up the steepest hill of his journey—from the bridge to the laneway at the northwest corner of the bush. That would be an impressive pace of more than 340 feet per minute. He then apparently cut his speed almost in half, taking four minutes to meet Jocelyne at the far end of the bush. Philip, according to the police, then slowed to a crawl of one hundred feet per minute, taking two minutes to reach Butch George only a couple of hundred feet further along the road.

  For the final leg of his journey, Philip apparently sprouted wings. By the OPP’s calculations, it had taken Philip twelve minutes to get to Butch, about three thousand feet from the river. Yet the police claimed he would now take the exact same time—twelve minutes—to make it all the way to his home on Quebec Road, near Steve’s house—a trek of roughly 4,400 feet, or about fifty per cent longer than he had walked so far. At that blistering pace, Philip would have beaten more than one thousand people in the New York Marathon.

  The police timing simply made no sense. The OPP had Philip walking an average of 5.1 feet per second and sometimes as fast as 5.7 feet per second. The official Green Book of the American Association of State Highway and Transportation, used to design streets and crosswalks, recognizes 4.0 feet per second as the average speed of pedestrians, and small children obviously walk slower. There is no reason to believe Philip would be sprinting on that hot summer night.

  In fact, independent tests carried out for this book show it would take a boy not twenty-four minutes as the police claimed, but closer to twenty-eight or thirty minutes to walk from the bridge to the Burnses’home, or an average of 4.1 feet per second—very close to the officially recognized speed for pedestrians. This thirty-minute estimate also coincided with the eyewitness testimony of when Philip arrived home.

  “It was just two minutes past 7:30,” Michael, his older brother, told the court. The boys’ mother also told police that her oldest son told her Philip did not get home until 7:30 p.m.

  If Philip arrived at his house between 7:30 and 7:32 and he took twenty-eight to thirty minutes to walk home, his departure from the river was between 7:00 and 7:04 p.m.—just about when the eyewitness evidence from the adults at the river suggests he left the bridge.

  Getting an accurate assessment of Philip’s walk was not legal hair-splitting. If Philip took about half an hour to walk home at a steady pace, instead of the frenetic changes the police timing implied, he would be off the county road around 7:25, making his way through the crowded school playground at about the time Steve says he left with Lynne. It was even possible Philip went around one side of the school while Steve and Lynne circled the other way. All of which easily explains why Philip would not have noticed two more children walking next to a bike amidst the dozens of other children at the school.

  For the prosecution to put Steven in the bush, they not only had to have Philip do some impressive walking. They also had to match his departure from the river with Richard Gellatly’s bike ride home. Without a simultaneous departure for both boys, the Crown had no “eyewitness” case.

  The theory for both boys leaving the bridge at exactly the same time hinged mainly on the testimony of Donna Dunkin, the mother who drove four young boys to the river on Tuesday night. Dunkin told the police and later the court that as she pulled in to park near the bridge shortly after 7:00 p.m. she saw Richard
and Philip “no more than ten feet” apart.

  The only other adult who saw both boys at the river around the same time was Beatrice Geiger. She testified Philip and Richard left “within the same time period,” but she was by the riverbank near the swimming hole, six hundred feet away from the bridge. Under cross-examination by Frank Donnelly, Geiger readily admitted she paid little attention to either boy once they left riverside and had no idea what they did or how long they took on the bridge.

  “You didn’t watch him go?” he asked about Richard.

  “No.”

  “And Burns … he departed from the river and you don’t know what he did after that; is that right?”

  “Yes,” she answered.

  As for the two boys themselves, one would think that if, as Dunkin thought, the two boys were only ten feet apart, they would not have had a hard time spotting each other. Yet no matter how mightily prosecutor Glenn Hays tried, he could not get the boys to testify that they saw each other.

  “Did you see Richard Gellatly at the swimming hole while you were there, before you left?” Hays asked Philip.

  “No, I don’t think so,” the boy replied.

  “Did you see him at the bridge?” Hays pushed, ever hopeful.

  “I am not sure,” said Philip.

  “Well, did you see him at all, Philip, after you left the swimming hole?” Hays asked, seemingly losing patience with his witness.

  “No.”

  Hays had no more luck with Richard. At the preliminary, the teenager confirmed he saw Philip down by the river but never saw him leave the bridge.

  “Where was he when you left?” Hays pursued.

  “I can’t remember,” Richard answered.

  So the two boys who were supposedly just feet apart soon after they left the bridge together did not see each other. Donna Dunkin was undoubtedly right about seeing Philip, because the ten-year-old walked up to the car and spoke to her son. The timing of her sighting of Richard was more questionable. Perhaps she confused him with one of the many boys on bicycles. If Dunkin did see Richard, perhaps it was a few minutes later when she got out of her car and walked to the riverbank with her children, joining the other women there. “As I was walking along the bank, I saw Mrs. Geiger down the cliff beside the water at the swimming hole,” she told the court. Glenn Hays asked Richard if there were any women he knew at the bridge when he left. “Yes,” Richard answered. “Mrs. Geiger, Mrs. Dunkin and Mrs. Burke.”

  The biggest problem with the theory that Philip and Richard left at the same time was that there was much to suggest that Philip left close to 7:00 p.m., while Richard left around 7:15 or 7:20. Philip and two other witnesses—both of them adults—put his departure at around 7:00. Philip asked Beatrice Geiger for the time; she did not have a watch so she asked Sgt. William McCafferty, who was fishing with his young daughter. In his statement to the police, the sergeant said, “It was around 7:00 p.m. It may have been five or ten minutes either way.” Geiger remembered it at about five to seven.

  Philip dove into the water, swam to the other side of the river, got dressed and headed home. A departure around 7:00 p.m. coincides with his confirmed arrival time home at 7:30, for a walk that would have taken him twenty-eight to thirty minutes.

  There was evidence to suggest that Richard only arrived at the bridge at about the time, or even after, Philip headed for home. Gord Logan told the police he got down to the river around 7:00 p.m., thanks to a ride from Richard. Robb Harrington confirmed that story: “Gordie Logan and Richard Gellatly came along from fishing,” he said. “Before they came, Philip Burns swam over to the south bank, put on his running shoes and left.” Richard said he stayed at the bridge “about half an hour” after he arrived.

  “What time did you leave the bridge, Richard?” prosecutor Glenn Hays asked at the trial.

  “About 7:20,” the boy insisted. That coincided with his testimony that he passed Steve and Lynne on his way home around 7:25 p.m. Beatrice Geiger also told the court she thought Richard left “ten to fifteen minutes after seven.”

  Only one person—Donna Dunkin—was definitive about a simultaneous departure for Richard and Philip. Hardly a solid enough hook on which to pin a hanging sentence. Dunkin never retracted her statement, but after the trial she did express regrets about the way the prosecution used her entire testimony. “She told me she felt partially responsible for sending an innocent person to jail,” her son Alan says. “She went to her grave thinking that she helped convict an innocent child.”

  There is no escaping it. Even accepting the dubious police estimates of walking and bicycling speeds, the prosecution’s case for a timing that makes Steve guilty is mathematically shaky at best. If you jettison the OPP’s fanciful account of Philip’s walk home, it teeters on the precipice of impossibility. If you remove the questionable premise that Philip and Richard left the bridge at the same time, the entire prosecution timing collapses.

  26

  THE MISSING WITNESS

  Did Steven Truscott get a fair trial?

  By today’s standards, absolutely not. Rules of evidence today oblige the Crown and the police to disclose all the relevant information they turn up in the course of their investigations. This information includes potential leads and suspects discarded or never pursued, which can be vital for the defence counsel.

  But in 1959, the authorities were under no such legal obligation to be as forthcoming with Steve’s defence team. “There was no disclosure. None. Absolutely none,” Dan Murphy explains. “They didn’t give you anything. If police found something they didn’t want to disclose, you would never find out about it.”

  That put Donnelly at a tremendous disadvantage, since the military authorities, the police and the prosecution kept from him numerous clues or statements that could have swayed the jurors. Some of that information was so fundamental to the jury’s reading of the case that the Crown may well have violated their own ethical and legal guidelines—even as they existed in 1959.

  For starters, Frank Donnelly did not have critical information about Lynne’s state of mind on the night she disappeared. It was a central tenet of Steven’s defence that Lynne hitchhiked from the highway; it was a central principle of the Crown’s case that Lynne was not the kind of girl who would do that. Donnelly did not have access to three separate OPP and military police reports that proved beyond a doubt that her parents’ first fears on the night she disappeared were indeed that Lynne had hitched a ride to her grandmother’s house in Port Stanley, Ontario.

  Donnelly also did not know that Lynne’s neighbour Betty McDougall told the police the girl was “in a sort of pouty mood” or that Brownie leader Anne Nickerson said that Lynne told her she did not want to go home because “her mother was cross with her.” Had the jury heard these witness statements to the police, perhaps they would have come to a different conclusion about the credibility of Steven’s story about the girl asking for a ride to the highway.

  The defence was also impaired by what it didn’t know about key witnesses for the prosecution. Jocelyne Gaudet, for example, told various—and at times conflicting—stories in court, but Donnelly did not have Graham’s notes that show she first told police “she was looking for Lynne,” not Steven. He did not have Jocelyne’s first police statement in which she makes no mention of Steve’s visit to her house. He did not have Bob Lawson’s statement from June 25 that, contrary to what Jocelyne had told police and the courts, she told the farmer she went to the bush first, before visiting his barn.

  The prosecution was adamant that Steve left the school shortly after 7:00 p.m., but held back statements from two young boys playing baseball who supported Steve’s claim of a departure closer to 7:25. David Faubert, eight years old, told the police it was “between 7:15 and 7:30” when he saw Lynne and Steve leave. Darrell Wadsworth, nine, put it at “about 7:25 p.m.” The Crown also withheld a declaration by Sandra Pleasance, who spotted Steven returning to the school from a bedroom window in her house between a qu
arter to eight and eight.

  All these accounts would have helped Steve by narrowing his time away from the school—but Donnelly and the jurors never got to hear them.

  If Steven didn’t kill Lynne, who did? The jurors must have pondered this question, since the police or the prosecution never suggested any other legitimate suspect. They didn’t know that on the same day Lynne disappeared, senior military medical officers met to discuss the deteriorating mental state of Sgt. Alexander Kalichuk, the alcoholic who had a history of “indecent acts” going back to 1950. They did not know Kalichuk had tried to molest a girl only nineteen days before Lynne went for a bicycle ride with Steven.

  The 1959 Chevrolet that Steven said he saw stop for Lynne at the highway was central to his claim of innocence. Much of the trial testimony was taken up with a debate over what he could or could not have seen from the bridge. But what the jurors did not know was that there were at least three sightings of ′59 Chevs that same evening in the Clinton area, including the car filled with young men who tried to pick up Arlene Strauman near the base just thirty minutes before Steven said Lynne got into a similar car.

  Finally, three air force searchers told the police they spotted tire skid marks in the laneway leading to the bush on the afternoon they discovered Lynne’s body. George Edens made a passing reference to the marks in his court testimony. But his sworn statement to the police—which Donnelly never saw—was much more detailed. “I had observed the tire marks on the crest of the approach to the road when I was coming out of the bush,” he told the OPP. “They appeared to have been made by spinning wheels and weren’t very fresh. They appeared to have been made when the ground was dry.”