Until You Are Dead (updated)

by Julian Sher

  But Sayeau’s logs show no such conclusion. Between 9:00 and 9:30 p.m., as Penistan was wrapping up his autopsy, Sayeau made the following inscription, which could only have come from the doctors: “Cause of death—Strangulation. Evidence of rape.”

  Nowhere in the pages from Sayeau’s notebook that evening does any reference to a time of death appear. It is inconceivable that the OPP officer in charge of gathering exhibits in a murder investigation would fail to note such a crucial lead if the doctors did provide it. “I don’t know if he said anything about that” is all Sayeau is willing to say today about Penistan’s estimate of a time of death during the autopsy. “It wasn’t directed to me to write down.”

  In a private document Penistan wrote several years later about the events that Thursday evening, he recounted that he told the police the food was “presumably recently ingested.” He also gave the police what he called another “tentative observation.” He told them “the food might well have been consumed at a later meal” than the supper Lynne had at home. In other words, the doctor was speculating to the police that Lynne might have eaten something after Steve had dropped her off at the highway around 7:30 p.m. Penistan stated that “following this observation” the police went to check local restaurants.

  A log entry by one of the OPP corporals on duty that day, Donald Weston—the same corporal who first went to the Harper residence the night she disappeared—states that he “questioned restaurant personnel in [the] Clinton and Seaforth area.” Inspector Graham himself confirmed in a 1966 report that “officers from the Goderich Detachment canvassed eating places in the district and exhibited a picture of Lynne Harper, with the view of determining her movements and the identity of her companion.”

  Clearly, if the pathologist had told Graham on Thursday evening he was certain Lynne had died before 7:45 p.m., the OPP would not have wasted their time canvassing restaurants that a dead girl could never have visited. If the OPP were checking restaurants on Thursday night, they must have believed—even after the original autopsy was concluded—that Lynne could have been alive past 8:00 p.m.

  If Penistan did give the police a specific time of death beyond his vague estimate of a “recently ingested” meal, there is eyewitness and documentary evidence that his first guess was not 7:45, as the police and prosecution later claimed, but in fact 9:00 p.m. Dr. Brooks, the medical officer assisting Penistan in the autopsy, now says, in a surprisingly frank admission, that the doctors originally gave the police a much wider margin for the time of death: “Certainly it isn’t falsely reported … that it could be stretched as far as nine o’clock and that that was the time we were thinking of.”

  The strongest documentary proof that Penistan gave a later time of death is Graham’s General Information Broadcast (GIB) issued Thursday evening. It stated explicitly that Lynne’s murder was “believed to have taken place about 9:00 p.m.” The authorities were sure enough about that first presumed time of death that they broadcast it across the province. “Doctors set the time of her death about 9:00 p.m. Tuesday,” the London Free Press reported on Friday morning.

  There is every indication that Graham wrote the GIB mentioning the 9:00 p.m. time of death sometime after the autopsy was completed.

  The GIB referred to the fact that Lynne was raped and that her killer probably had scratches on his face and neck—information presumably garnered from the autopsy. The bulletin also twice describes the car as white. Steve never mentioned that colour. But Vaughn Marshall, the airman Graham and Sayeau interviewed around 10:00 p.m. that Thursday night, said the ′59 Chevrolet he saw on the highway near Clinton was white. Graham’s bulletin about the car also refers to “witnesses” in the plural, not just the single witness they had in Steve.

  By Graham’s own account he arrived in Clinton at 7:45 p.m. and by 8:00 he was observing the autopsy. In the intervening fifteen minutes, he conferred with three officers and then travelled to the funeral home. It was hardly likely that he had time to scribble out the bulletin before the autopsy—and if he did, did he simply make up the 9:00 p.m. time of death?

  The sun went down at 9:08 p.m. on Tuesday, so perhaps the police assumed Lynne was killed when it was dark, when the county road was quiet and after people had abandoned the river area near the bush. Still, it is hard to imagine the OPP would rely on something as flimsy as guesswork to fix the time of death in their first bulletin on a sensational murder. It is much more logical to assume that Graham chose the 9:00 p.m. time of death for his province-wide bulletin after consulting with Penistan during the autopsy on Thursday night.

  More evidence that this was the case comes from the police and medical logs of what happened the next day, Friday, June 12. To get a better analysis of what Lynne ate before she died, Graham sent Sayeau to the attorney general’s laboratory in Toronto with the jar of her stomach contents. A handwritten note from the biologist at the laboratory who received the jar contains this telling remark: “Found: 1:50 p.m. Thurs. June 11th Time Death—Path—maybe 40 hours.” “Found” was a reference to when Lynne’s body was discovered. “Path” was short for “pathologist,” John Penistan. If the police were telling the laboratory experts that Penistan’s guess for the time of death was forty hours before the body was found, that would put the time of death at sometime between 9:00 and 10:00 p.m.

  The laboratory experts that afternoon told the police “that death had occurred not more than two hours after the girl had last eaten,” Graham wrote in a 1966 draft report on the case. “This, of course, for the first time, placed Steven Truscott as a suspect.”

  For the first time? That would have to mean that Penistan and Brooks did not give Graham a time of death that pointed to Steven on Thursday evening. Perhaps realizing the problem with what he had written, Graham crossed out that last typed sentence and handwrote a new line saying that the laboratory’s time “was consistent” with the time Penistan gave at the autopsy.

  Therefore, contrary to what Hays indicated in court and what Graham has stated publicly ever since, all indications are that Penistan did not decide Lynne died by 7:45 p.m. when he completed his autopsy on Thursday night. When did he come to that conclusion?

  Whenever it was, it was apparently not when Steven was picked up on the next day or when he was jailed. And not when he appeared in juvenile court on June 13 or by the time he appeared in court again several more times over the next two weeks. Even though a boy had been arrested, charged and sent to adult court for a hanging offence, there is no record of a single piece of paper from Penistan or a report from a police officer that contains any reference to the 7:15 to 7:45 time of death. In a detailed, six-page report Graham filed to his superiors on June 19, 1959—eight days after Penistan’s supposedly pivotal autopsy, Graham says he has not received Penistan’s report. The only reference to a time of death is a mention of a pending analysis of stomach contents by the attorney general’s laboratory.

  On June 30, a judge ordered Steven’s preliminary hearing to begin by mid-July. At this point there is still no document available from the police files that fixes the time of death between 7:15 and 7:45 p.m. But the prosecution knew they had to convince a judge at the preliminary hearing to send the case against Steven to a full trial.

  Finally, on July 6—almost a month after Steven had been arrested—the time of death so incriminating against Steven appears on the record for the first time. Graham on that date wrote his second report to his superiors and to Hays. “No evidence has yet been submitted to any court,” he wrote, pointing out that the preliminary was days away. “The evidence of Dr. Penistan, who performed the autopsy, is most important in respect to time of death.” If it was “most important,” one wonders why it was never mentioned in any of Graham’s reports or his notes until that moment.

  Graham reported Penistan based his time of death on the state of decomposition of the body, the extent of rigor mortis and the stomach contents—particularly the large quantity of only partly digested food. Graham appeared to cite a
note or report he must have received from Penistan, although he did not identify the source: “I find it difficult to believe that this food could have been in the stomach for as long as two hours unless some complicating factor was present, of which I have no information,” Graham quoted the doctor. “If the last meal was finished at 5:45 p.m., I would therefore conclude that death occurred prior to 7:45 p.m. The finding would be compatible with death as early as 7:15 p.m.”

  One has to question how—a month after his autopsy—Penistan came up with the magic window so convenient for the police’s case against Steven Truscott. Penistan never claimed he did any extensive study on the stomach contents after his June 11 autopsy. On that Thursday night, according to the documentary evidence, Penistan gave the police either no time of death, or perhaps suggested Lynne died around 9:00 p.m. One wonders in the intervening month between the autopsy and the preliminary hearing, what could have changed the doctor’s mind to the point where he could select 7:15 to 7:45 as the absolute parameters for Lynne’s death.

  Penistan could cite medical texts to show that some experts believed the digestive process was usually well underway and the stomach starting to empty in about two hours—in Lynne’s case, around 7:45 p.m. But that was a general principle only, not a hard and fast rule—the textbooks did not say all stomachs digest food in exactly 120 minutes. Penistan, to be safe, could have suggested 7:55 or 8:00 or 8:05—except that the police knew Steven was back at the school by then.

  Penistan’s selection of 7:15 p.m. as the earliest time for Lynne’s death was even more capricious. There was little in the medical literature to suggest the stomach starts to empty at precisely ninety minutes after the last meal. Why not choose 7:12 or 7:05 or 6:58? The police, of course, knew that Lynne was alive and at the school until at least 7:10. It is interesting that in court Penistan initially suggested a time of death as early as 7:00, but in his final autopsy report he found it prudent to specify 7:15 as the earliest possible starting time.

  It is simply impossible not to suspect that someone gave Penistan these crucial pieces of outside information about Lynne and Steve’s whereabouts between 7:15 and 7:45 to influence his determination of the time of death.

  The scenario gains credence because of one fatal flaw in the doctor’s official autopsy report: it has no time or date. Penistan did not write his official report on the death of Lynne Harper that same night or even in the days, weeks or months to come.

  When stuck during cross-examination at trial, Penistan referred to handwritten notes, not to an autopsy report. The Crown never filed his autopsy report as a court exhibit. No witness ever makes reference to seeing, reading or writing such a report. Penistan was still polishing his autopsy report even after the trial was over—he admitted later he revised the section that referred to “no obvious meat” in the stomach contents because “the wording was felt to be potentially misleading.”

  No one knows when Penistan finally got around to writing up his official autopsy report, but it could have been years later. Indeed a formal, typed report did not make it to the office of the chief coroner for Ontario until late in 1963—four years after Lynne was murdered. (Until 1965, provincial pathologists were not required to send a copy of their reports to the supervising coroner.) Even then, Penistan’s “Report of the Post-Mortem Examination” bore his signature, but no time or date.

  A journalist who saw that report in 1963 said the copy she saw then still made no mention of a time of death between 7:15 and 7:45 p.m. Finally, when Penistan’s autopsy report was entered into evidence in the Supreme Court of Canada in 1966, it contained an asterisk on the front page referring to a section added on to the report entitled “Note on time of death.”

  That passage matched word for word—down to the commas—the “observations” of Dr. Penistan that Harold Graham quoted in his memo of July 6, 1959.

  Since Penistan’s final autopsy report was undated and not filed until years later, no one could be sure what and when he told police and the prosecution about Lynne’s time of death. No one could be sure Penistan did not bend his times to suit a police agenda.

  The autopsy report is supposed to be the official account of what an unbiased pathologist concludes about a corpse. The report is a medical snapshot of a crime, and as such it must be preserved and protected in its original state. A pathologist might amend an autopsy’s findings for scientific reasons: for example, upon learning a crime victim had a certain illness or that a murderer used a certain poison, the pathologist might return to the body and carry out more tests.

  But overall, the autopsy must be seen never to have been tampered with or altered in any way by subsequent events or pressures from the police, prosecution or any other outside forces. Police call this the “chain of evidence.” A clue found at the crime scene must be carefully dated, labelled and tracked as it gets handed from one officer or doctor or lawyer to another. Unless that happens, testimony about that clue can be hopelessly compromised.

  Penistan, by his own admission, was willing to revise his autopsy report because of misleading wording about stomach contents. It would not be a big step to make an addition about time of death.

  Penistan is dead and cannot account for his actions—although several years after the trial he would make a stunning reversal in his findings. His colleague during the autopsy, the chief air force medical officer David Brooks, has only a vague memory of what went on that evening.

  “I cannot remember the exact moment or the wording in which [Penistan] conveyed the idea of his findings” on the time of death, he says today. “I don’t know whether Penistan felt pressure … to provide a medical opinion which would be of assistance.” But Brooks frankly admits the doctors were under the gun. “I wouldn’t say I felt seduced by the police force, but on the other hand, I think there was some seduction in our anxiety to get this over and done with as soon as possible. There was a certain amount of pressure … in the absence of knowing about anyone else who might be responsible [for Lynne’s murder].”

  If Hays and Penistan misled the jury into thinking the doctor came up with his exact 7:15 to 7:45 time of death by himself during the autopsy, the prosecution also bent the truth when it suggested the attorney general’s laboratory fully backed that narrow time of death. Nobody from the laboratory testified at the trial, but Crown prosecutor Glenn Hays assured the jurors that the experts there endorsed Penistan’s findings. He explained he did not bring the centre’s biologist, John Funk, to the stand only because he had already filled his quota of five experts.

  “I did not call Mr. Funk, but I made him available to the defence,” Hays said in his summation. “You haven’t heard from Mr. Funk. I only leave it to you to draw your reasonable inference.” The inference was clearly that Frank Donnelly did not call upon Funk because the laboratory supported the prosecution’s case on time of death.

  Inspector Harold Graham also convinced the judge of the same thing. In a voir dire session held out of earshot of the jurors, Graham testified that it was not until he heard Jocelyne’s story about her date with Steve and when he received the laboratory report that Steve “became a strong suspect.”

  “Friday afternoon, you had the report from the laboratory?” Ferguson asked.

  “Yes sir,” the OPP officer replied.

  “I think I can properly infer whatever was in the laboratory report clinched the matter,” Ferguson concluded later in the voir dire.

  What exactly was in the report that “clinched” Steven’s guilt?

  John Funk himself would admit later he made only a “cursory examination” of the stomach contents that Friday afternoon. For a more extensive analysis, Funk brought the stomach contents to Dr. Noble Sharpe, the medical director of the centre. “He told me a young girl had been found after being absent from her home about forty-eight hours. That was all he told me,” Sharpe recalled in a memorandum written in 1966. “At the time I had not heard the name Truscott, nor had I heard Dr. Penistan’s estimate of the time of d
eath.”

  Sharpe, an experienced and cautious pathologist, immediately told Funk he had “no wish to be involved in court on stomach contents alone.” Sharpe was all too aware of what he called the “many variables” that influence digestion. His reluctance to rely too heavily on stomach contents in a murder case was significant. “I suggested to John Funk that the investigating officers should be advised to start focusing one hour after the last known meal to be on the safe side and not overlook anything,” he wrote. Had the police spoken to Sharpe directly, the director said, he would have warned them “stomach contents may carry more weight in court than they are entitled to.”

  “The time I stated was a rough guide only,” the medical director cautioned. “Had I been in court I think I would have said, ‘I believe digestion stopped between one and two hours after the meal,’ but I think I would have added, ‘It might have been later.’” Words of caution, of course, that Penistan never used.

  Sharpe made an oral report to Funk, who in turn spoke to OPP Corporal Sayeau. If Funk transmitted the medical director’s hesitations to the police, the OPP did not absorb them. A handwritten note Funk wrote that day shows at one point he was only guessing at the stomach contents and the time of death:

  Meat—ham?

  Vegetable—tomato?

  Pea?

  Fruit—pineapple?

  Funk would add cucumbers and potatoes by the time he finished his analysis later that summer and he would drop any mention of tomatoes. The thick, stewy nature of the contents, Funk wrote, “suggests an early state of digestion.” Perhaps the biologist firmed up his opinions as the afternoon wore on. Somehow, by the time Sayeau wrote down in his notebook what Funk told him, the question marks were gone and the time was more definite: