by Julian Sher
Meat (either turkey or ham)
Tomatoes
Celery
Pineapple
Peas
“Early stage of digestion—food
gulped. Death within two hours of
eating these foods.”
The “two hours” appeared in Sayeau’s notes but not in anything written by Funk. Sayeau telephoned the information to the Goderich OPP office. When Graham got the message, his notes show the inspector, in his mind, had enough to pick up Steven as his chief suspect: “Lab: … Died within two hours after eating.”
If Funk did tell the police Lynne died “within two hours,” he was being more precise on that Friday afternoon than he ever would be again in his life. One month later, at the preliminary inquiry in mid-July, Funk refused to give a time of death, even though by this time he had had four weeks to do a microscopic study of the stomach contents and not just a couple of hours. Funk insisted he did not “feel qualified.” It is hard to imagine how Funk could have felt more qualified on June 12, when he had only completed what he described as a cursory examination.
Today, Hank Sayeau concedes that when Funk talked to him that Friday afternoon, the biologist may have said that he was not qualified to state a time of death in court. “Those guys, they didn’t go beyond their boundaries,” Sayeau says.
It was not the laboratory experts but the police—and later Penistan—who created an impenetrable barrier of time by suggesting Lynne died at 7:45 p.m. and not a minute later. “John Funk and Dr. Sharpe … had given the opinion that death had occurred not more than two hours after the girl had last eaten,” Graham proclaimed in a March 30, 1966, report to the OPP.
But the words “not more” never appear in any notes available from Funk or Sharpe. If the Crown was so confident about the findings of the laboratory report, why was it never released? Graham had testified he received by telephone the news from the laboratory that led to Steven’s arrest. It should not have been difficult to produce a written report to back up a scribbled phone message.
Funk completed his report on August 31. Graham would later claim that the Crown “provided laboratory reports to Mr. Donnelly promptly.” In fact, the only record available in the files shows that on September 2, Hays wrote a letter summarizing the stomach contents found by Funk, but Hays did not include an official copy of the report.
Hays also never entered the crucial laboratory report into evidence. And for good reason. Funk’s report was only one page long. It listed in detail what was inside Lynne’s stomach. But—unknown to the jurors or the defence—it said not a word about time of death.
The implications are staggering. Imagine if Graham had claimed, on the basis of a phone call, that he learned the lab had confirmed a suspect’s knife was the murder weapon, but then was unable to produce a written lab report to back up that claim. He would be laughed out of court. Yet that is exactly what the prosecution was allowed to get away with in the case of a much talked about but never seen lab report supposedly confirming time of death.
Even when Funk and Sharpe testified at the Supreme Court in 1966, neither said they told the police Lynne was killed before 7:45 and no later. Neither of them would endorse Penistan’s narrow, thirty-minute window for the time of death.
But the Crown apparently convinced the jurors and the judge that they had.
Nothing illustrates Penistan’s willingness to play the prosecution and police game more than his uncanny ability to change the contents of Lynne’s stomach. You would think that if the prosecution was asking a jury to sentence a boy to hang—largely on the basis of a pathologist’s conclusion that stomach contents indicated a time of death between 7:15 and 7:45 p.m.—that the doctor would at least be certain of what those stomach contents were.
Penistan himself wrote in 1966 that on the night of the autopsy “several items [of food] were immediately and clearly recognized” but “other items were less easy to identify with certainty.”
“He pointed out he couldn’t say exactly what the food was,” Harold Graham later admitted in a speech—words he never uttered before a jury.
What is remarkable is how Penistan’s analysis of the stomach contents evolved to match closely the analysis being made at the laboratory by Funk—the only person to closely study the jar of digested food over the summer.
In his official autopsy report, Penistan noted only three vegetables in Lynne’s stomach: “peas, onion, corn.” The laboratory never found traces of corn and Penistan never made mention of this error again. Penistan admitted in court that his notes from the night of the autopsy said there was “no obvious meat.”
Between the time Penistan completed his autopsy on June 11 and the time he testified at the preliminary hearing on July 13, Funk had told the police he found celery, pineapple and some kind of meat, “either turkey or ham,” according to police notes. Lo and behold, at the preliminary, Penistan went from “no obvious meat” to “a little meat which I feel was probably ham.”
As Funk completed his study by late August, he added potatoes and “two types of meat—probably fowl and ham.” At trial in September, Penistan—who never indicated that he had re-examined the stomach since that evening of June 11—suddenly added the same ingredients to his list. Now he told jurors he found ham, white meat that was either chicken or turkey, and traces of potato.
The evidence is overwhelming that Penistan finessed not only his conclusion about time of death, but even his analysis of the very stomach contents upon which he claimed he based that conclusion.
Thanks to the lack of disclosure laws, Hays kept all this compromising information from the eyes of Donnelly, the judge and the jurors. Time of death was crucial to Donnelly’s defence of Steven and yet the defence lawyer was working blindfolded.
Donnelly did not have the all-important General Information Broadcast, which indicated the police first thought Lynne’s murder was “believed to have taken place about 9:00 p.m.” and not around 7:30 when Steve was with her. He did not have Sayeau’s notebook, which indicated Penistan gave no precise time of death on the night of the autopsy. He did not have the notes from the laboratory the next day that indicated the police told the experts Penistan’s estimate of death was forty hours before the body was found. He did not have access to Sharpe’s opinions about the validity of determining time of death from stomach contents.
Medical science and justice are supposed to be about verifiable facts. Two crucial documents—Penistan’s autopsy report and the provincial laboratory’s report—were never presented at court. One was written after the trial and almost certainly adjusted to fit the police scenario; the other—despite the prosecution’s misleading suggestions to the jury—said nothing about time of death. It was a case of bad science in the service of bad justice.
The irony is that Penistan could have given fair and balanced medical testimony without changing his opinion about stomach digestion—and without necessarily condemning Steven. But he, along with the prosecution and the police—deliberately or not—blurred the distinction between the stopping of digestion and death. In other words, Lynne’s stomach could very well have stopped digesting her supper “within two hours” but she need not have died before 7:45 p.m.
The jurors never heard this important distinction from Dr. Penistan, but Dr. Noble Sharpe understood it very well. “Something stopped her digestion before it was complete and left the stomach,” he said in his memorandum on the case. “It could be death or fear which stopped the digestion,” Sharpe said. He explicitly criticized Penistan—well after the trial—for not mentioning “the variables which affect stomach contents” in his testimony.
If, as Steven claimed, Lynne got into a car around 7:30 p.m.—just about two hours after her supper—she very well may have faced a stomach-wrenching turn of events in the ensuing minutes or hours. If the driver or someone else shortly afterwards began menacing her or assaulting her, it would be only normal for the girl to suddenly stop digesting her supper. Fear could
have gripped her but she could have remained alive for several hours longer.
It was a shame that Frank Donnelly focused only on Lynne’s anger with her parents over swimming as a possible explanation for the interrupted state of her stomach contents, and did not seize on fear after she had left Steven’s company as a good reason for jurors to have a reasonable doubt about stomach contents and the boy’s guilt.
But then it was no less a shame that Donnelly did not know that Dr. Noble Sharpe had grave doubts about Penistan’s willingness to pinpoint a time of death to within thirty minutes. “I criticized him for using definite times in place of saying one or two hours,” Sharpe wrote. “Saying 7:15 to 7:45 sounds so absolute!”
One can only imagine the impact that the more cautionary testimony from the medical director of the attorney general’s laboratory would have had on the jurors. “It is somewhat frightening to realize that any court could sentence a man to death on the basis of the testimony on the time-of-death issue,” Sharpe wrote in a medical journal several years after the trial. “Medicine cannot be that precise and exact at the present time.”
Yet Penistan—with the help of Hays—convinced a jury medicine can be that precise and exact. And that carefully staged and planned performance helped sentence a fourteen-year-old boy to hang for the murder of Lynne Harper.
28
“BURN THE PICTURES”
By October of 1959, the summer heat wave that had drawn the children of RCAF Station Clinton to the river by the bridge was a cold, distant memory. The fall wind swept away the leaves and everyone seemed eager to put the heat and the passions of the summer behind them. The jurors went home to their farms and their shops. The lawyers went back to their offices. The reporters went back to their typewriters.
Steven went back to jail.
In the London Free Press of October 1, the morning after Steve’s trial ended, the story of his hanging sentence shared front-page billing with news that 50,000 people were expected to pack into Comiskey Park in Chicago to watch the White Sox take on the Los Angeles Dodgers. By the Night Final edition, news of Steven’s death penalty was overshadowed by a banner headline announcing that the Chicago home team had won the series opener.
By the next day, the Truscott story was gone from the papers.
Steven Truscott was still on the mind of Inspector Harold Graham, who had some paperwork on the case to clean up.
“All the officers of the Goderich detachment worked long and anxious hours on … this case,” he wrote in his formal report one week after the trial ended. “This entire case has been fraught with unusual difficulties.”
Graham had one more vital duty to fulfill: endorsing an application by Flying Officer Glen Sage for part of the $10,000 reward posted for Lynne’s killer—“dead or alive.” Sage had not found the body; George Edens and Joseph Leger did. All Sage did was run over to the two men who were part of his twenty-five-member search team and take charge of the site. But Sage did perform one task that endeared him to the authorities—he testified about a footprint from a “crepe-soled shoe” that he spotted near the body in the bush. “Although the footprint was not positively identified as having been made by the shoe of the accused, the evidence was … one of the most important facts given in evidence,” Graham noted in a lengthy memo. “Despite all vigorous cross-examination, the evidence of Sage was not shaken. I am sure he left a very good impression with the Court and Jury.” Graham concluded that in his “respectful opinion, Flying Officer Sage should be given due consideration for a portion of the reward.”
There is no record that Sage ever received the money he requested.
Justice Ferguson, meanwhile, penned a sixteen-page report to the Honourable Davie Fulton, the federal minister of justice. “The jury rejected the defence and, in my view, had good reason to do so,” he said, heartily endorsing the verdict.
Remarkably, Ferguson continued to get key facts wrong. He noted that from the bridge Steven could not have discerned “the colour of a licence plate on a car, much less the numbers at that distance.” He also stuck to his absurd theory that even if Steven crossed the bridge with Lynne “he brought her back, because nothing could be clearer than she was back, having been found dead in the bush.”
Justice Ferguson made it clear he had little sympathy for the boy who sat in the prisoner’s box in his courtroom for two weeks. “He sat throughout the trial without showing any signs of emotion,” he wrote. “It was an awful deed—the act of a monster—and the person who performed it is capable of anything—in my opinion, quite capable of very little emotion.”
Ferguson had sentenced the boy to hang, despite the jury’s plea for mercy. He appeared to have no regrets or second thoughts. “I know of no reason, other than the youth of the prisoner, to recommend him for the Queen’s mercy,” the judge told Canada’s justice minister.
It had not been an easy summer for Alexander Kalichuk, the air force sergeant with a taste for liquor and young girls. While Steve had spent the summer months incarcerated in the Goderich jail, Kalichuk was on the psychiatric ward of a London hospital. After several weeks of inconclusive tests and examinations, doctors released Kalichuk. It did not take long for him to return to the bottle.
On September 1, about two weeks before Steve’s trial began, a social welfare officer in the air force recommended a transfer for Alexander Kalichuk from Aylmer to the Clinton base, or to the nearby Centralia installation, in order to allow the ailing airman to be closer to his family. The top brass at the Clinton base would have nothing of it. The last thing they wanted on their hands was a “sex deviate,” as they described Kalichuk. They dug in their heels and effectively blocked his transfer. A memo written several weeks later spelled out their reasons. The Clinton commanders noted Kalichuk’s attempt earlier that summer “to entice school girls into his automobile using female underclothing as bait.” Referring to the Truscott trial, they also noted the Clinton air base was already embroiled in a “murder stemming from sex deviation of sorts, which caused severe problems and embarrassment to both the unit and the air force generally.”
Kalichuk would not return to the Clinton base until 1965, but his drinking and sexual habits would cause the air force problems long before then.
By October, a new school year was well underway for the children on the Clinton air force base, but many of their classmates were gone. Lynne’s two brothers had moved away, as had Steve’s brothers and sister. Butch George went on to high school, but eventually he and his family departed from Clinton; it would be forty years before he was ever heard from again. Jocelyne Gaudet and her family transferred out and none of the children kept in touch with her.
But no matter how far they dispersed across the country, the children of Clinton could not shake the memories of the traumatic summer.
“The grief! It’s like somebody reached in and took a piece of your heart out,” says Michael Burns, looking back with horror on those first few months after the trial of his good friend. “Today, they have grief counsellors; we had nothing. Except parents telling you to shut up, it’s over and done with.”
“The aftermath of the whole thing was very difficult for everyone,” agrees Yvonne Danberger, a friend of Lynne’s. “We had to deal with it on our own. Nowadays if anything like that happened, there would be professionals at their disposal to help the children, the teachers and the parents.
“Instead we were under suspicion from our parents because they were horrified by everything that had happened. It negated everything in terms of friendship. It destroyed a lot of the confidence the kids had. No one wanted to have much to do with each other after that.”
In some cases, the obsession with burying the memories of the summer ordeal went to rather dramatic extremes. Bryan Glover, who joined other boys teasing Steve on the bridge the night after Lynne disappeared, recalls the mood at his home. “I remember our parents telling us to burn the pictures so we wouldn’t have any record of it. Any pictures we had of Steven and Lynne
,” Bryan says. “They didn’t want us to have anything from it.”
But purging the past would not be as easy as lighting a match to a few black-and-white snapshots of smiling children in happier times. Hank Sayeau, the OPP corporal who worked all through the summer of 1959 investigating the case against Steven, was one of the first to realize that forgetting the Truscott trial would not be easy. “I was relieved it was all over,” he says. “But then it wasn’t—and it never will be.”
A fourteen-year-old boy sitting alone in a jail was about to confront his own ghosts. And his story would continue to haunt Canadians for decades.
PART TWO
THE BATTLE BEHIND BARS: 1960–1966
“I didn’t think he knew he murdered the girl.
I didn’t think he knew that he had done
an evil deed.”
—Prison psychiatrist Dr. George Scott
29
GHOSTS OF THE GALLOWS
“SENTENCE BOY TO HANG DECEMBER 8.”
Across the country the media flashed the information that a Canadian jury had condemned a fourteen-year-old to death. The astonishing news reached into the highest chambers of power. On October 1, when the cabinet sat down for its meeting in the Privy Council chamber in Ottawa, Prime Minister John Diefenbaker confessed “he had been shocked to see that a fourteen-year-old … had been sentenced to hang.” Diefenbaker—who as a lawyer claimed a client of his whom he thought innocent had gone to the gallows—had been a staunch opponent of the death penalty. He was also a pragmatist, fretting confidentially to his ministers that “the outcome would be reported all over the world and would undoubtedly reflect badly on Canada.”
Diefenbaker was right. Steve’s date with the hangman gave Canada a black eye on the world stage. In England, one newspaper called it “a shocking thing.” In Germany, a teenager named Christa Severa read with horror the news that Canada was set to hang a boy about her age. When her parents announced they were planning to move to Canada, she protested in vain, “It’s barbaric—they hang children there.” Little did she know that years later her own life—and the lives of her children—would become intertwined with the boy who was awaiting the death sentence far across the Atlantic.