Until You Are Dead (updated)

by Julian Sher

  Lieutenant Joseph Leger told police he saw the same thing—a foot-long mark, eight feet from the pavement. “I saw another mark which appeared to have been made by a car spinning … more recent than the baked-in [bicycle tire] marks” he had seen farther down the laneway. “As I stepped up on the pavement, I noticed the tire tracks,” added a third airman, Cpl. Harold Pudden. “They were quite deep and wide, and looked to me as if someone got their front wheels up on the pavement and gunned it and the rear tires had spun and dug in.”

  There can be no doubt that the Crown prosecutor knew about these marks and kept the information out of the courtroom. Police notes dated August 12—one month before trial—reveal that at a meeting in Hays’ office they specifically discussed the car tracks. The minutes show that Sergeant Anderson, senior OPP officer in Goderich, and Constable Hobbs “saw spin marks.”

  Hays incessantly reminded the jurors of the bicycle tire marks that even several of the police officers dismissed as old and irrelevant. Why was the jury not told that three air force men and two police officers saw fresh car tracks?

  Also unknown to the jury was that Steve may not have been the only person to see a girl hitchhiking by the highway on Tuesday, June 9. Out for a drive along the county road, an elderly couple identified in the police files as Mr. and Mrs. Fletcher Townsend made their way across the bridge and stopped at the intersection where Steve says he left Lynne. “Mrs. Townsend claimed she saw a girl standing by the stop sign,” a police report says. “She commented to her husband that it was pretty late for a kid of that age to be hitchhiking.”

  Here was potentially vital corroboration of Steve’s story, but the police did not share this information. Constable Trumbley interviewed the Townsends on Thursday morning, June 11, before Lynne’s body was found. His notes or any statements from the Townsends are not available in the police archives. All that exists is a two-page memo written by Harold Graham seven years after the fact.

  Graham claimed that Mr. Townsend, upon reflection, thought he and his wife were on the road on Sunday, June 7, not Tuesday, June 9. Graham dismissed the Townsends as simply “an aged couple who were trying to be helpful” in the investigation. “No further investigation was made.”

  Would the jury have changed its verdict if they had known about other potential suspects? Or if they had known about the other people who spotted 1959 Chevrolets or those who saw a young girl hitchhiking? What if the jury had known from Lynne’s friends that she had a history of hitchhiking?

  We will never know. We will never know how the jurors deliberated, or what evidence they debated as each juror struggled with his conscience and his vote. But we can be certain there was at least one key issue that troubled the jurors. Before they sent a fourteen-year-old to the gallows, the twelve men came back with only one question for the judge: clarification of the evidence “of Lynne Harper and Steven Truscott being seen together on the bridge on the night of June the 9th.”

  Two boys at the river—Gord Logan and Dougie Oates—provided the strongest corroboration of Steve’s story. Clearly, the jurors understood their stories were central to Steven’s innocence or guilt. Dougie’s story was the most important because he claimed he was close to Steve and Lynne when they crossed the bridge around 7:30 p.m. Police notes in Graham’s handwriting, not revealed at trial, show that in his first interview with the OPP, Dougie told them he saw Butch George at the bridge. If true, Dougie could only have seen him close to 7:30 when Butch arrived at the river. While Hays spent most of his cross-examination of Dougie battling to convince jurors that the boy was lying or just plain wrong about being at the bridge after 7:00, sitting next to him at the prosecution table was the police inspector whose own notes indicated the boy was at the bridge well after 7:00 p.m.

  Hays held an even darker secret. What the jurors also did not know was that there was a witness who could verify Dougie’s claim he was at the bridge after 7:00 p.m., when Steve and Lynne were biking down the county road. Everyone in the courtroom knew that Dougie Oates was not alone in his quest for turtles down by the river. He had mentioned a companion, nine-year-old Karen Daum. But only the Crown knew how important she was in verifying his story.

  “We didn’t hear anything from Miss Karen Daum, as to what she would have said,” Crown prosecutor Glenn Hays said obliquely while talking about Dougie in his summation, as if to seal the boy’s reputation as a “little liar.” It was perhaps the most devious statement at the trial. At the very least, Hays’ implication was that Karen Daum’s story was unknown. At worst, Hays was suggesting that there was something nefarious about it all—that the testimony from Karen that they “didn’t hear” perhaps contradicted Dougie’s claim that he was on the bridge well past 7:00.

  But the truth was that Glenn Hays was the only person in the courtroom—aside from the police—who knew exactly what Karen had to say. And he knew it was damaging to his case. Her story would remain hidden from public view for four decades.

  Who was this mystery girl and why was she never called as a witness?

  Her blonde hair came down just to her shoulders, and her bangs were short enough to give a full view of her dark brown eyes. Her school picture shows her biting down on her bottom lip with an impish grin. In the photo she wears a pretty, polka-dot dress. But Karen Daum wanted to get rid of that dress just as soon as the photographer’s flash went off. Pedal-pushers and a simple shirt were more her style—Karen was a tomboy, and she could swing a bat or ride a bike as well as any of the boys.

  “My brother Rodney was eleven. I hung around with him a lot, so his friends were my friends, and to stay in their gang, you wanted to do the same things they did,” Karen explains. One of those things was catching turtles. Dougie Oates was good friends with Karen’s brother Rodney; Dougie had called at the Daums’ house on the evening of June 9, but Rodney was not home. Rodney had already left for the river with his sidekick sister. So it was only natural that when Doug went turtle hunting around the bridge that evening, he would find himself next to the cute blonde girl on a hand-me-down boy’s bike.

  “I knew I had to be home at 7:00. I had a very strict father and I was really worried about getting home. I was scared I’d get a licking,” says Karen. Absorbed in their hunt, Karen lost track of time. When she finally turned to Dougie to ask him what time it was, he told her. “I can’t remember what he said,” Karen says today, “whether he said 7:15 and I started thinking I wouldn’t get home until 7:30, or whether he said 7:25 or 7:30. But in either case, I was late!”

  Karen hopped on her bike to make the dash home up the county road back to the air force station. She remembers being slightly ahead of Dougie as they left for home. Dougie’s recollection of events differs slightly from Karen’s on this point; it was the only discrepancy in the two accounts the eleven-year-old boy and nine-year-old girl independently told police. He told police Karen was under the bridge looking for turtles in the river when he saw Steve and Lynne go by him and that she was still behind him when he left the bridge.

  Both children may have been partially correct, as Karen told police she was originally behind Dougie. “Doug and I left the bridge together, he was riding first and I was behind him on my bike,” her statement says, “but he got his pant leg caught and had to stop, so I caught up to him and got ahead.”

  It was what she told the police next that was the bombshell. “Me and Dougie were coming up the river and going to go home, and I saw Lynne riding on the bar of the Truscott boy’s bike,” her statement continues. “We were going home and they were coming toward the river.”

  Karen was close enough to the older bike riders to remember their specific facial expressions and clothing. “Lynne and Steve looked happy,” she said in her statement, which was taken by police on Sunday, June 14, the day after they jailed Steven. “Lynne was wearing a white blouse and blue shorts.”

  Karen was also very specific about where she saw Steve and Lynne. “Karen taken by Constable Trumbley to point out spot on road wher
e she and Doug met Steve and Lynne.” Then added in parentheses is this last line: “Point of meeting was just about railway tracks.”

  Karen remembers OPP Constable Trumbley taking her in his police cruiser along the county road and asking her to point out exactly where she saw Steve and Lynne.

  “Are you sure this is where you saw him?” Constable Trumbley asked, according to Karen’s recollection.

  “Yes,” she replied.

  “I thought you said you saw them up here,” the police officer said as they drove to a point closer to the school.

  “No, I didn’t say that, I said I saw him there,” Karen insisted.

  At least two times over the next few days, Karen says, Trumbley took her back to the road to repeat his questioning, to the point where Karen burst into tears. “I felt intimidated because I couldn’t figure out if there was something I wasn’t saying right or if they weren’t understanding what I was saying,” she recalls.

  OPP Inspector Harold Graham’s signature as a witness appears on the bottom of Karen’s statement, signed on Friday, June 19. A week after he had jailed Steven Truscott, he had to know her account was extremely damaging to the prosecution’s case. The railway tracks were about fifteen hundred feet north of the bush and just five hundred feet from the bridge. The Crown now had a third witness—besides Dougie and Gord Logan—who saw Steve and Lynne beyond the bush. Here was a third witness whose testimony meant Steve could not have been the murderer.

  So why did no one in a courtroom ever hear Karen’s story?

  “I didn’t testify because I was too young. I heard that from my father,” Karen recounts. Her parents may have given her that explanation, but clearly the decision was not theirs to make—the prosecution decided who would be called to testify. Hays had no difficulty bringing a ten-year-old girl, Sandra Archibald, into the courtroom to testify about finding Lynne’s locket. Other young children were allowed to testify before the jury at the trial, even if they were not sworn.

  An inescapable and deeply troubling conclusion can be drawn: the prosecution consciously kept Karen Daum’s statement from Steven Truscott and his lawyer. Hays was able to keep Karen’s story secret because Steven did not recall meeting her on the road that night. He never mentioned seeing Karen to police or to his lawyers; as far as the defence team was concerned, Karen Daum barely existed. If the Crown made sure they stayed ignorant, it engaged in a deliberate suppression of evidence that was vital to proving Steven Truscott’s innocence. The only other more charitable explanations would be either that Karen’s statement was somehow “forgotten” about or that for some reason, it was considered not reliable or not relevant to the case. Either way, the prosecution effectively sabotaged a key element in Steve’s defence—that other children had seen him and Lynne near the river.

  Today, Karen Daum is a self-assured, successful civil servant and is upset that she was never called to the stand to tell her story. Forty years later, she still vividly remembers her encounter with Steve and Lynne.

  “They were having fun, giggling and laughing and smiling. Lynne was turning around, looking at him and talking,” she recalls.

  Suddenly, Steve veered toward the middle of the road to have some fun by scaring the little nine-year-old. Karen panicked and fell off her bike into the ditch on the side of the road. “They were kind of laughing about it, but all I could think of was, ‘Now I am really in big trouble. I am going to be even later!’” Karen turned in anger to her two tormenters, but Steve and Lynne kept bicycling and never looked back. Karen got back on her bike and pedalled home.

  Karen’s modern-day account differs from her 1959 statement in one significant way. As she recalls events today, she crossed Steve and Lynne not at the railway tracks but closer to the school, somewhere along Lawson’s bush. Karen thinks by identifying the railway tracks in her 1959 statement as “the point of meeting,” the police confused the spot where she caught up with Dougie and the point where she met Steve and Lynne.

  If true, her revised story does not completely exonerate Steve, since she was south of the laneway that led into the bush when she met up with Steve and Lynne heading north. Conceivably, Steve could have turned off the road and taken Lynne into the bush right after he bicycled past Karen.

  But Karen’s modern version still helps the defence in another way. The prosecution and the defence agreed that Steven and Lynne were on the road sometime after 7:10 p.m. That meant one thing was certain: if Steve and Lynne passed Karen, Karen had to be on the road after 7:00 p.m. And that meant without a doubt the turtle-hunting companion she left back at the bridge—Dougie Oates—was most definitely still by the river, in a perfect position to see Steve and Lynne. Thus the prosecution was wrong and Dougie was right: he was on the bridge well past 7:00.

  Karen’s original police statement in 1959 about seeing Steve and Lynne by the railway tracks was one more eyewitness account that proved Steven was innocent. Her modern-day version of seeing Steven and Lynne south of the laneway was not completely exculpatory, but it still gave strong support to Steve’s most important defence: Dougie Oates’s claim of seeing him cross the bridge with Lynne. It was not her age but her story—so damaging to the prosecution—that kept Karen from the courtroom.

  Did Glenn Hays break the law by withholding Karen’s statement from the court?

  Arguably, if Hays willingly hid Karen’s story—as well as crucial information about other witnesses and evidence—he bent his ethical guidelines to the breaking point. The Law Society of Upper Canada only formalized its code of ethics in 1965, but the written guidelines were based on principles well known to lawyers in the years before that. “When engaged as a prosecutor, the lawyer’s prime duty is not to seek to convict but to see that justice is done through a fair trial on the merits,” the Rules of Professional Conduct state. “The prosecutor … should make timely disclosure to defence counsel … all relevant and known facts and witnesses, whether tending to show guilt or innocence.” Karen’s statement, and much of the other police reports and notes kept from Donnelly, certainly fall in that category.

  Ethics are one thing. What about the law? The disclosure rules at the time meant that the police and prosecution were under no legal obligation to automatically divulge Karen’s story to the defence, as they would have to today. But there were significant and well-known Supreme Court rulings in the 1950s that strongly suggest Hays was wrong in what he did.

  In Lemay v. The King (1951), the court ruled the Crown need not call witnesses who assist the defence but “must not hold back evidence because it would assist an accused.” Three years later, in Boucher v. The Queen (1954), the court argued there was an obligation on the Crown to “bring before the Court the material witnesses.” Justice Ivan Rand—in language still quoted to this day—said that the Crown’s role excludes “any notion of winning or losing” and that prosecutors “have a duty to see that all available legal proof of the facts is presented.”

  “All available legal proof.” By that standard—one that existed well before 1959—Steven Truscott did not get a fair trial.

  27

  DOCTORING THE MEDICAL EVIDENCE

  It was bad enough the prosecution suppressed evidence and testimony vital to Steven’s defence. But even some of the most crucial evidence the jurors did get to hear was tainted by half-truths and distortions.

  “It is awfully important when this girl died,” Crown prosecutor Glenn Hays told the jurors. “You can take with safety that this girl was killed from 7:00 p.m. to 7:45 p.m. on Tuesday, June 9.” It was the single most important piece of evidence—the “vise,” as Hays had called it that tightened on Steven and no one else. Hays took pains to remind the jurors of the “careful study” Penistan made of the stomach contents—a study, the pathologist indicated, he made only once: during the autopsy he and Brooks completed on Thursday evening, June 11. “The doctors told me that they were of the opinion that death occurred not more than two hours after Lynne Harper had last eaten,” Graham claimed
in a 1966 report.

  The next day, on Friday June 12, the experts at the provincial laboratory confirmed that the food was in Lynne’s stomach for “not more than two hours.” Graham promptly had Steve picked up and arrested.

  In that scenario, Penistan took the initiative, and his insightful findings on Thursday night were backed up by other experts on Friday. Medical science leads, the police follow. Hays surrounded his case with an aura of scientific objectivity.

  The story sounded plausible and the jury believed it. But there is strong evidence to suggest that Penistan doctored his evidence on both the time of death and the contents of the stomach to help the police and the prosecution. In other words, he made the time fit the crime.

  There is plenty of room for doubt about when Penistan made his exact determination on time of death and what he based it upon. That doubt comes from documents never seen by the defence or the jury.

  Contrary to the official version given in court, there is every reason to believe that Penistan gave, at the most, a vague approximation of the time of death on Thursday night, June 11. At the key moments, there were four people in the small autopsy room at the Ball and Mutch funeral home in Clinton that evening: Penistan, Brooks, Graham and Sayeau. Brooks took notes at Penistan’s dictation. Those notes have never been produced.

  Sayeau’s notebook from the evening, however, is available. He carefully logged every minute he received evidence from the doctors: 8:40 p.m., hair from scalp; 8:58 p.m., jar containing contents of stomach; 9:27 p.m., fingernail scrapings. Sometime between 8:58 and 9:27, Sayeau also entered into his notebook the following information: “Ate supper at 5:30 p.m., June 9th—consumed turkey meat, potatoes, peas, raw tomatoes, pickles, pineapple upside-down cake.”

  Presumably, Sayeau learned this information either by phoning the Harpers or from previous inquiries; he almost certainly communicated these facts to the doctors. That meant that Penistan knew what Lynne ate for her last meal and when she ate it. If he was so sure that night that Lynne died “not more than two hours” after eating, as Graham claimed, he would have given the police a firm time of 7:45 p.m. as he was completing his autopsy.