Until You Are Dead (updated)
Page 45
If Scott was hoping for a collegial endorsement of his efforts to get Steven to crack, he was sorely disappointed. The experts instead found a normal boy reacting with strength and resolve to a situation of stress—a stress aggravated to a considerable degree by prison psychiatrists determined to prove his guilt.
Dr. Robin Hunter found Steven to be “very direct and co-operative.” Unlike other analysts who concluded Steven lacked affect, he noted that the young man smiled, blushed and laughed. “I did not concern myself with the question of his guilt or lack of it, but merely approached the matter by telling him that I was a doctor and not a law enforcement officer and that I had been asked to see him in order to try and understand him as a human being,” Hunter said. “He puzzles endlessly about what happened to him but can find no adequate answer. He sometimes feels angry but does not know who to blame except that, by and large, he has no affection for the police,” the doctor reported. “He spontaneously told me that he certainly was not guilty of the crime for which he had been put in prison and that … there had been a miscarriage of justice. He feels that if he were to confess, that things would go easier for him, but he cannot do this and would not think of doing so merely for the advantages that he has been told would accrue to him.” Hunter’s final evaluation was explicit: “There are no psychotic indicators nor indicators of behavioural disorder.”
Hunter’s colleague at the adolescent clinic of the Kingston General Hospital, Dr. Ronald Briggs, concurred. With more insight than most of the other doctors who had analyzed Steven over the years, Briggs described him as “a young man who suffered a very traumatic experience, culminated by his stay in the death cell.… Initially he appears to have reacted with bewilderment and then hostility. He continues to make a conscious effort at enforcing control and aloofness.” Briggs thus found Steve’s reactions to be healthy, “solidly based in reality.” Steve told the doctor he did not trust him, but that he should not take it personally. “Everyone he met in prison started from the assumption that he was guilty and proceeded to try and prove it,” Briggs recounted. “I see no evidence of any psychotic process.”
Steve made the same complaint to the third psychiatrist, John Pratten. “He rather resents the opinion expressed by many people that there must be something wrong with him because of the crime for which he was convicted, which he very definitely denies,” Pratten reported. Pratten found his subject to be polite, intelligent and wry. “I did not detect any evidence of sickness nor did I feel that he is in need of any specific form of treatment.”
Little wonder, faced with three almost identical appraisals, that panel chairman Robert McCaldon said he was “somewhat baffled as to [Steve’s] management” by Scott. Steve co-operated with all drug tests and remains convinced of his innocence, McCaldon said. “He sees himself as a relatively normal boy who has always felt completely innocent of the charges against him,” the panel chairman concluded. “He recognizes it might be easier for a psychiatrist to make a recommendation for release if he were to admit guilt and show remorse, but he states he cannot do this when he does not honestly believe it.”
Scott insists today he did not see the consultants’ report as a rebuke of his practices. “Not at all, not at all,” he says, dismissing their comments. “That was just part of the passing parade.” Scott says there were many things about Steven the outside doctors weren’t able to understand. “I had been stuck with the job, to put it mildly—it gave me an intimacy with him,” he says.
Still, by any measure, the panel’s conclusions were in stark contradiction to Dr. Scott’s views. Far from endorsing Scott’s ideas for more drug tests, group therapy and LSD treatments, the panel of experts implied that one of Steven’s problems was the way psychiatrists had been treating him.
Scott was unrepentant, even letting slip his own opinion about his patient to the media. “Was Steven Guilty? I Know the Truth,” ran the headline in the Toronto Daily Star in mid-April of 1966. “I know whether Steven is guilty or innocent,” Scott coyly told a reporter. “But that’s all I can say. If Steven wants to get up and make a statement of course he can. But he hasn’t.”
“Adolescence brings out the fantasies of anger, cruelty, mastery, pride, heroism, which can bring killing in an instant of hostility,” he said in the article.
Steve’s parents were outraged by Scott’s very public declarations. Members of Parliament had already urged the government to take steps to make sure Steven was not pressured into admitting “a crime of which he consistently says he is innocent.” The federal commissioner of penitentiaries stepped in to assure critics he would be talking to Scott “in the next few days.”
As a sign that prison officials were warming to their celebrity inmate, the warden told the Truscotts he was exempting them from the rule limiting visits to two thirty-minute sessions a month. They could come see their son any time they wanted.
When Steve saw his parents the week after his battery of interviews with the experts, he recounted once again how he had stood his ground about his innocence. “Dad, it’s the truth and it’s the same under drugs as before,” he told his father.
“Don’t expect a miracle,” Doris told Steve. “It’s not going to happen overnight. There may be hard battles ahead. It’s better to walk out an innocent man a year from now than to be paroled, still guilty, today.”
Steve’s mother knew that proving her son’s innocence would be hard. She had no idea just how hard a battle the police would wage to prove that the arrest they made in 1959 was the right one.
33
AN “AGONIZING REAPPRAISAL”
If there was one person in Canada troubled by all the renewed attention around the Truscott case it was Harold Graham. By 1966, Graham had been assistant commissioner of the force for three years. The man who first soared to national prominence when he jailed Steven Truscott was on his way to capturing the top job—head of the OPP—in just seven more years.
Still, Graham could not seem to shake the ghosts of Clinton. “It bothered him badly,” says Dennis Alsop, the identification officer who worked with Graham in 1959 and would help him again in 1966. “This case is all done and gone, and all of a sudden it comes into the limelight again. He didn’t know why they’re paying attention to one person who was a born liar.” Alsop’s characterization was directed at Steven, but it could just as well have described Graham’s feelings toward Isabel LeBourdais.
“He was going to shoot this LeBourdais down,” Alsop recalls. “He didn’t like the criticism the press was giving the case.”
When The Trial of Steven Truscott hit the headlines in March, Graham went on the warpath. He fired off three lengthy memos to his superiors in one month, totalling thirty-eight pages. “Columnists and editors … have already given wide acclaim to the book,” he noted with alarm. “Mr. Diefenbaker has asked the prime minister for a royal commission.”
Graham wanted to set the record straight. He made a detailed criticism of errors he said plagued LeBourdais’ book. Some were minor (surnames spelled incorrectly, but taken from trial transcripts where the original errors appeared). Other inaccuracies were hardly LeBourdais’ fault, given her lack of access to police and military files; she erroneously reported, for example, that the police took no action the night Lynne disappeared. Most of Graham’s condemnation was based on differing interpretations—he took the Crown’s view on the evidence, she took a perspective favourable to Steven.
But Graham made some errors of his own. At one point, he wrote that after questioning Steven at the OPP detachment in Goderich, “he was returned to the guardhouse”—a tepid description of what the trial judge decried as an arrest and interrogation that violated legal standards. Graham took exception to LeBourdais’ portrayal of his grilling of Steven as an “inquisition.” He told his superiors, “I was fully aware of the views of some jurists regarding the questioning of juveniles and for that reason, arranged for the boy’s father to be brought to the guardhouse.” What Graham did not say in that
memo was that he chose to ignore the guidelines for juveniles, first questioning Steve alone and only calling for his father two and a half hours after the police picked up the boy.
Graham did more than write apologias for his actions. He took an active part in top-level strategy sessions with senior provincial and federal government officials to plot a counter-attack to this unprecedented onslaught against the justice system. How things had changed since 1959, when the police could jail a boy and the prosecution could win a sentence for hanging with little fear of criticism from a timid press corps and a placid citizenry. But the turbulent sixties had altered all that. LeBourdais’ message, amplified by newspaper columnists and TV commentators, had touched a chord in a populace waking up to the possibility that not everything the police, the courts and the judges did was necessarily right.
As this storm buffeted the legal establishment, a worried group of men huddled around a conference table in a government office in Toronto. On Friday, April 1, 1966, Harold Graham sat down with Don Christie, the director of criminal law in the federal department of justice; A. R. Dick, Ontario’s deputy attorney general; and William Bowman, the province’s director of public prosecutions, who had successfully blocked Steven’s appeal in 1960. Joining Graham from the OPP was Hank Sayeau, the corporal who had helped him in Clinton and now had risen to the rank of inspector. It was as senior a gathering of judicial heavyweights as possible; the top lawman in the country—federal Solicitor General Lawrence Pennell—would have attended were it not for another commitment in Ottawa.
Harold Graham and the other officials debated how the government would resist these unprecedented and unwelcome challenges to their power. According to Graham’s account, unearthed in documents obtained from the government, the men were worried not so much about the legal implications of the Truscott affair, but were more concerned with the wider political fallout. They feared if a full inquiry were held, “the administration of justice would be attacked.” What’s more, LeBourdais had the support of the NDP, Graham observed, “and it was more than a coincidence that this book came on the market at the same time as the debate of capital punishment in the House of Commons.” To make matters worse, Graham noted, “there has also been talk in Ottawa about compensation in the event the boy is ruled innocent.”
Clearly, this would not do. Graham’s memo offers a fascinating glimpse into the mindset of the beleaguered police and justice officials. “It was agreed by both the federal and provincial governments that there must be a rebuttal to the book,” the assistant commissioner wrote.
The federal justice minister or Solicitor General Pennell “should make a speech in the House of Commons indicating that after a detailed study by the law officers, it was found that there had been no miscarriage of justice,” suggested A. R. Dick, the deputy provincial attorney general. It was a remarkably premature recommendation, considering LeBourdais’ book had been on sale for only a few weeks before the meeting and there was no evidence the police had yet completed such an extensive study endorsing their 1959 operations.
The senior police and justice officials discussed appointing a jurist or a lawyer to write a report. “A rebuttal could be accomplished by the appointment of a royal commission set up by both the federal and provincial governments,” Graham wrote. Presumably, a royal commission was supposed to find the truth; Harold Graham had already decided the inquiry would accomplish a rebuttal to his detractors. But even Graham acknowledged that a royal commission could lead to more attacks on “the administration of justice.”
The meeting ended without any definite solutions. Graham reported the federal solicitor general would confer with his provincial counterpart. Within three weeks, Ottawa announced its decision.
On April 19, there came a remarkable victory for the boy who had grown up to become a man behind prison walls. “It has been decided that a review of the case should be made,” Solicitor General Larry Pennell told the House of Commons. He quickly cautioned: “It should be stressed that the government, in coming to this decision, is not prejudicing the case or the correctness or otherwise of the allegations that have been made concerning the Truscott case.”
Pennell did not immediately clarify what form the review would take. Confidential minutes of cabinet meetings now reveal just how sharp the debate was—and how powerfully the cabinet realized they were dealing with a political, much more than a legal, time bomb.
Pennell had presented his colleagues with several options: a royal commission or another form of inquiry, a new trial, a reference of the case to the Supreme Court of Canada, an outright pardon, or simply non-interference. A new trial was risky, Pennell said, because it “would be tantamount to stating that there had been a miscarriage of justice.” On the other hand, Pennell warned his colleagues they had to find a way to resolve the Truscott controversy “in such a way as to allay public concern and at the same time remove the cloud of suspicion which has been cast over the judicial process.”
Most outsiders favoured some sort of new investigation, rather than a trial. LeBourdais said she thought only a politically neutral royal commission could thoroughly review the case and “bring justice to the boy.” But perhaps heeding the April 1 warning from Graham and other senior officials that such an inquiry would lead to an attack on the administration of justice, Ottawa chose a safer route. The government would sidestep any inquiry into a bungled police investigation and pass the controversial dossier to the highest court in the land.
On April 26, the federal cabinet spelled out its reference to the Supreme Court, asking if, based on new rules and new evidence, the Supreme Court would come to a different conclusion than it did six years earlier, when it first turned down Steven’s appeal. In 1960, the highest court in the land could hear an appeal only if there was a dissent by a judge in a lower court of appeal, or if there was a question of law to be settled. In July 1961, an amendment to the Criminal Code widened the right to appeal on grounds of fact, as well as law. Now, in an unprecedented move, Ottawa was going one step further, allowing the Supreme Court to hear new evidence in the case.
In its ninety-one-year history, the Supreme Court had never heard live testimony from witnesses. But Steven was not getting a new trial. The nine Supreme Court justices could not declare him innocent or guilty. They could only decide if the original trial was fair and, if not, they could recommend a new one.
While Ottawa was announcing an open “review of the case” its top officials had secretly come to the conclusion that much of the key medical evidence that underpinned Truscott’s conviction was in shambles.
Don Christie, Ottawa’s director of criminal law who had sat down with Graham to plot strategy, took it upon himself to consult two top pathologists: the first from inside the federal government was J.R. Jackson, head of the laboratory at the department of veterans’ affairs; the second was D.H. Starkey, a pathologist at the Queen Mary Hospital in Montreal. According to secret memos Christie wrote to the deputy minister on April 4 and April 6, both experts concluded that the many of the so-called scientific conclusions presented at Truscott’s 1959 trial were either “absolutely wrong” or “not possible.”
Jackson told the federal justice officials that there was “no justification” for Penistan’s conclusion that Lynne died within two hours of eating dinner, given that there is always a “a great variation” in how people digest food. The most that Penistan could have said, Christie wrote, was that “the child might have been killed” before 7:45 p.m. but the coroner “would have to say it could be later.”
The experts also scoffed at the testimony of Penistan and Dr. Brooks that the lesions on Truscott’s penis were caused by a “blind, furious thrust of the male organ.” One of the doctors consulted two other experts—a dermatologist and a urologist—who concluded the prosecution’s experts were “entirely and absolutely” wrong about the scabbing on Steven’s penis. “There is no reason at all for doubting the boy he had not had any sexual intercourse,” they said.
It was all extremely damaging to the prosecution’s case. But none of this information ever saw the light day for thirty years until these documents were uncovered in the government archives early in 2005. What is worse, federal officials were not the only ones keeping vital facts away from the public and Steven Truscott. Provincial prosecutors and the police engaged in much more serious cover-up about Penistan’s findings—only what they kept hidden were not criticisms from outside experts but from the good doctor himself.
It was bad enough that Harold Graham, assistant commissioner of the OPP, had to face the prospect of the Supreme Court re-examining his most famous case. Three weeks after Ottawa made its unprecedented decision, Graham received a disturbing private letter that threw in doubt much of the medical evidence used to convict Steven Truscott. The letter was not from the Truscott family, a defence lawyer or an outraged citizen. It came from none other than Dr. John Penistan, the pathologist who seven years earlier had worked so closely with Graham in helping to secure a conviction against a fourteen-year-old boy.