Until You Are Dead (updated)

by Julian Sher

  Penistan, still the chief pathologist at the Stratford General Hospital, appeared troubled. Perhaps the intense public scrutiny of the case prodded him into reflection. Maybe he felt twinges of unease about his role in presenting his medical testimony to help the prosecution.* There was also a good chance he had gotten wind of the stinging criticisms levelled at his work by Dr. Noble Sharpe, who was still the medical director of the attorney general’s laboratory. Sharpe had drafted a three-page memo on the case for public prosecutor William Bowman, and Sharpe was unsparing in his rebuke of Penistan. He singled out Penistan’s failure at trial to stress the variables that affected stomach contents, rigor mortis and decomposition.

  For whatever reason, Penistan in the spring of 1966 was clearly having serious second thoughts about his 1959 testimony—or at least, the way it was used and interpreted. He wanted to get those doubts off his chest by publishing a review of his autopsy findings in a professional medical journal.

  On May 19 Penistan sent Graham a draft of his article with the following comment, which must have unnerved even the normally unflappable OPP veteran: “One is tempted to refer to it as an ‘agonizing reappraisal’ in the current jargon: the adjective is probably better justified here than in most cases.”

  Sensing that he was treading on dangerous ground, Penistan seemed nervous about admitting the consequences of his reassessment. “I do not believe I have changed any of my essential conclusions as a result of my review … but I must depend on someone else to assess whether there has been any significant change in the expression of these views.”

  The pathologist was being disingenuous. He knew he was reappraising the rigidity and certainty of his testimony about the time of death—and he knew on the eve of a Supreme Court review this new review was dangerously explosive stuff.

  Penistan titled his paper “Autopsy on the Body of Lynn Harper—A Review of the Pathological Findings.” He got the spelling of Lynne’s first name wrong in the draft, but it was also evident he was worried he got a lot more than that wrong in his trial testimony. From the start of his draft article, Penistan seemed determined to extricate himself from the verdict against Steven. He tried to argue that his autopsy could be used only to exclude a suspect, not point the finger at anyone. “If the evidence were to show that Lynne could not have died at the only time Truscott had access or opportunity, his innocence would be established,” he wrote. “The corollary, however, is not true. If the autopsy shows that she did, or could have died at such a time, this fact per se bears no relevance to him as opposed to any individual, which must depend on altogether other evidence.”

  Theoretically, that was true, but the pathologist was ignoring the reality of his testimony in 1959. By using phrases like “could not have died” and “could have died,” Penistan was suggesting a cautious medical approach he never displayed at the trial. The issue was not that his evidence showed whether Lynne could or could not have died by 7:45 p.m., but the absolute certainty with which Penistan determined the time of death in the eyes of the jurors. He knew that by testifying Lynne had to have died before 7:45, he was fingering the only person known to have been with her at that time.

  But with hindsight too late for Steven, Penistan was now chipping away at almost every major aspect of his testimony. At trial Penistan shocked jurors by testifying Lynne’s vaginal injuries were produced “by a blind, violent thrust of the male organ.” The prosecutor used the vaginal lesion evidence to link Steve’s penis sores to the rape. Seven years later, Penistan was no longer so sure. “The labial lesion was not of obvious causation,” he wrote, even speculating that “in theory [Lynne’s injuries] could have been inflicted with a blunt instrument,” not necessarily a penis.

  Steve’s defence lawyer, Frank Donnelly, had suggested the decomposition of the body could account for much of the swelling and damage to the genital area. He pleaded with the judge that “it would be extremely dangerous” for Penistan to express any opinion about the injuries because of the post-mortem changes. But the judge overruled Donnelly’s objection, and Penistan went on to assure the jurors the swelling and other damage to Lynne’s vagina “all indicate a large degree of violence.” Penistan’s description was crucial to the prosecution, who could hardly accuse Steven of rape without this evidence.

  But now the pathologist had changed his mind about the post-mortem, or autolytic, transformations. “The initially expressed view that the severity of the vagina changes reflected a corresponding degree of violence, while quite possibly true, did not sufficiently discount the autolytic changes,” he wrote.

  On the crucial question of time of death, Penistan had told jurors the state of decomposition and the extent of rigor mortis suggested that “death had occurred some two days previously”—when Steve was with Lynne. But in a direct reversal of his trial testimony, Penistan widened the window appreciably: “The state of decomposition in Lynne’s body is considered fully compatible with death about forty-eight hours prior to autopsy, but it is not incompatible with death a day previously or a day later.” The doctor was now saying Lynne could have died as late as Wednesday! As for rigor, Penistan now claimed it was compatible with death about forty-eight hours previously, but “compatible also with death some hours later than that.” And when it came to the all-important stomach contents, Penistan now added qualifying words that he never used at the trial. He said “the impression” he got while inspecting the stomach was that the food showed little sign of digestion and was “therefore presumably recently ingested” (his emphasis).

  Penistan’s conclusions in 1966 were dramatically more open-ended than in 1959. “All findings are compatible with death within two hours of Lynne’s last meal,” he wrote, standing by his original testimony—but then adding a word he never spoke at trial: “However.” That single word indicated a new flexibility in Penistan’s interpretation of the autopsy’s findings.

  “However,” he wrote, “the degree of rigor and decomposition are compatible also with death at a later time,” he said. “The state of the stomach contents is also compatible with death at a later time, provided that digestion and emptying were delayed by some physical or psychological episode occurring within approximately two hours of the last meal”—at last making the distinction he never made at trial between digestion stopping and death occurring.

  In another version of his draft, Penistan went even further: “All findings are compatible with death within two hours of Lynne’s last meal. They are not incompatible with death at a later time (up to twelve hours or even longer).”

  To make a case for his innocence, Steve did not need the twelve-hour time frame Penistan now seemed willing to give for the time of death—just twelve minutes would have put the boy in the clear. The Crown convinced jurors Penistan’s definitive time of death before 7:45 p.m. tightened the vise on Steven alone. In that courtroom in Goderich in 1959, if Penistan had stated death could have occurred “twelve hours later” or “a day later”—as he now wrote in his proposed article—more than one juror might well have had a reasonable doubt about Steven’s guilt.

  On the eve of a Supreme Court review, Penistan’s rethink was a disaster for Harold Graham and for the legal team preparing the Crown’s case. Handwritten at the bottom of Penistan’s letter to Graham is a note indicating Graham sent Crown prosecutor William Bowman a copy.

  The letter Penistan attached to his report concluded, “I would be glad if you would read the draft critically and advise me if you find anything in it which is at variance with the facts or which is ill or misleadingly expressed.” Graham and Bowman certainly would have found much in Penistan’s new position that was at variance with what they wanted to hear. But they had a more urgent problem—keeping a lid on the draft opinion of this wavering soldier in the prosecution’s ranks.

  It was not going to be easy. Just a hint of Penistan’s views had leaked out several weeks before his private letter to Graham. “Key Evidence Now in Doubt,” the Toronto Telegram headlined over a
story based on a brief interview with the doctor in late March. The newspaper, on its own, had gathered opinions from three pathologists not connected with the case who concluded it was “almost impossible” to determine the time of death from stomach contents alone.

  “I am in general agreement with their comments,” Penistan told the newspaper. He regretted he could not say more because Ottawa was reviewing the case, but he made it clear he hoped he would get a chance to testify at any inquiry “to give my full statement on my findings.” Penistan never got that chance, even though Steven’s defence team was clearly interested in what he had to say.

  By late April, Bowman was reporting that Ted Joliffe, one of Steve’s lawyers, was interested in “Penistan’s own views which … may be inconsistent with original evidence.”

  In early June, Ted Joliffe met with Penistan under the watchful gaze of Graham and Bowman. “In this company, Dr. Penistan was more guarded than on other occasions,” Joliffe reported, indicating that the defence team had managed to have previous meetings with the pathologist, and that perhaps he had been more forthcoming.

  “At one point he conceded that death could have occurred after 8:00 p.m., but he did not really retreat from any of his statements in 1959,” Joliffe said. “My observations were not intended to be definitive,” Penistan said—and that was as far as the pathologist was willing to go.

  Bowman and the Crown team worked hard over the summer months to circle the wagons around Penistan by recruiting top international experts to their cause, experts who could bolster Penistan’s 1959 conclusions—and ultimately, replace Penistan as the chief defender of his own autopsy. Chief among those experts was Keith Simpson, who ran the department of forensic medicine at Guy’s Hospital in London, England, and edited the respected Principles and Practices of Medical Jurisprudence. Simpson had reviewed LeBourdais’ book in a British journal, dismissing her medical references as outdated and her arguments as biased. He told reporters he was outraged that “a disgraceful kind of publicity” sparked by the book had forced the government’s hand into questioning sound medical and legal practices.

  By early June, Simpson was preparing briefs for the Crown counsel. A Crown lawyer flew over to London to meet with Simpson and Dr. Milton Helpern, an American pathologist who would also eventually testify at the Supreme Court.

  While never going to the extremes that Penistan did in his reappraisal, Simpson did advise the prosecutors that defending the original autopsy conclusions was not without its challenges. “It would not be difficult for critics to point to many statements from various writers (including myself) … indicating the caution one must exercise in using stomach emptying time in estimating the approximate time of death.”

  A particularly irksome matter was the recognized medical fact that fear or shock could easily slow stomach movements. Simpson came up with a simple way to deal with the fear factor—he dismissed the chances that Lynne experienced any fear or shock. “These last factors cannot have operated in this case,” Simpson boldly proclaimed, insisting that strangulation must have killed Lynne rapidly. “Lynne Harper was not dragged screaming into the [bush], spending some time in fear of death before dying. It seems likely that she went willingly, may even have undressed herself and suffered only a few moments … of such high emotional disturbance before dying.” The British expert did not explain how he gained such insight into Lynne’s final moments.

  The closest Simpson ever got to Clinton was Toronto, when Bowman organized a planning session and a lunch party in July for the visiting medical dignitary. Simpson got a chance to meet Penistan and other members of the government team. Simpson called it a “masterful manoeuvre.” The day after the gathering, Penistan wrote to the Crown office to tell them he would “awfully like to have a copy” of Simpson’s report on the case. The Crown obliged, and by the end of the summer the British medical celebrity penned a letter to Penistan guaranteed to boost his morale.

  Simpson told the pathologist that the Crown’s team had contacted two other world-renowned authorities “both of whom back your findings solidly, entirely without reservation.… This is only what I expected but it is yet more backing which must entirely restore your confidence in the views you expressed from the very first.” The fact that Simpson felt it was still necessary in September to “restore” the pathologist’s confidence—three months after Penistan had sent in his reappraisal to Graham—indicated how worried the Crown was about Penistan as a potential loose cannon.

  Even Simpson had to admit to Penistan they were going to have to fudge things more than the pathologist had at the original trial. “We are of course prepared to admit that [under] wider special conditions … the stomach might not empty normally,” he wrote in his letter. “This is a matter of probabilities, not a mathematical deduction.” The problem was that at Steve’s trial in 1959, Penistan’s talk about a thirty-minute window for time of death sounded much more like mathematics than probabilities.

  Simpson need not have tried so hard to calm his doubting colleague. A handwritten note on stationery from the Ontario attorney general’s office, dated August 9, 1966, indicates Bowman had already made up his mind to keep Penistan far away from the courtroom. The note runs through a list of seven potential expert witnesses. All the major experts would testify—except the last name on the list. Penistan’s name is circled, then followed by three question marks, the single word “No” and a thick exclamation point. The Supreme Court justices and Steven’s defence counsel would never hear about Penistan’s “agonizing reappraisal.”

  Two years later, long after the Truscott controversy had died down, the article that Dr. Penistan had sent to Harold Graham in May of 1966 was finally published in a medical journal. Without exception, every major contentious passage from his original draft had been deleted. Penistan’s admission that Lynne could have died hours after Steve left her—important information for Steve’s defence before the Supreme Court of Canada—would remain secret for more than thirty years.

  Penistan was not the only doctor who testified for the prosecution at the original trial who was now having second thoughts. In August, Bowman made an entry in his notes concerning John Addison, the family doctor who examined and questioned Steven the night of his arrest. Addison met with Dr. Charles Danby, a dermatologist who treated Steven in Collins Bay and who would testify at the upcoming Supreme Court hearing about finding oozing, crusted eczema on Steve’s body—a possible explanation for the sores on Steven’s penis, especially since Steven had told Addison the sores appeared four to five weeks before his arrest. “Danby … told him about skin condition—shook his confidence in Truscott guilt,” Bowman noted.

  Trying to do damage control with Dr. Penistan was only one of Harold Graham’s challenges in that busy spring and summer of 1966. Once it was clear the Supreme Court was going to re-examine the case, the OPP had their hands full. Letters, phone calls and tips came in from across country, and police followed up leads on more than a dozen potential suspects. All of the clues appeared to be fruitless, but at least the police were casting a wider net than they had during their twenty-four-hour “lightning” investigation in 1959.

  Graham’s men also set about finding whatever new information they could on the boy they had sent to prison seven years earlier. In what looked like an increasingly desperate operation, Graham’s men tracked down tips on everything from a secret stash of pornography to a putative prison confession—only to find their efforts to dig up any real dirt come to an embarrassing failure.

  “Inquiries were made with a view to developing the report that pornographic literature which implicated Steven Truscott was found hidden in the house formerly occupied by the Truscotts in Clinton,” Graham told prosecutor Bowman. The porn hunt began when G. A. Duguid of the OPP’s Criminal Investigations Branch interviewed a former RCAF officer on June 17. He said a friend who moved into the Truscotts’ former home on the base discovered “a bundle of letters” written to and from girls. “It makes Peyton P
lace look sick,” the man allegedly said.

  But two days later, the OPP discovered the pornography comprised only two small notes written to Steven from a girl saying, “I miss seeing you, I will be coming in town, I love you Steven.” The woman who found the letters told the police, “there was nothing smutty or dirty about them.”

  The OPP were more excited when it looked like a fellow inmate could finally give them the goods on Steven. Graham himself travelled to Burlington police headquarters on September 22 to secure a signed statement from Carl Glover, an ex-prisoner from Collins Bay. Out on parole after serving four years for passing bad cheques, Glover had been nabbed once more for fraud and was to appear in court the next day. He doubtless hoped his cooperation with the police would work in his favour.

  From the start there were anomalies in Glover’s story that should have rung alarm bells for Graham that his informant was more interested in a deal than in the truth.

  “I first met Steven Truscott about September 22, 1962, when he arrived at the penitentiary,” claimed Glover. “In September and October, 1962, I often talked to Truscott on the sports field.” Glover had to be talking to ghosts, because Steven did not arrive at Collins Bay until 1963—four months after Glover alleged the compromising conversations took place.

  “You are the smart punk that goes around raping young girls,” Glover said he told Steven.

  “Well, we’re all in the same boat here—what the hell can they do about it?” Steven supposedly replied. “I done it and I didn’t need any help to do it.”

  “He never went into detail about his crime but he often said he did rape the girl and he didn’t need any help,” Glover recounted. “He said he did it for kicks and he was in a frenzy.” Glover told Graham Steve made these confessions “many times when eight or nine inmates were around.” As dubious as Glover’s story may have been, the police dutifully tried to track down other witnesses to Steve’s incriminating boasts—presumably some of the names Glover gave them himself. Not surprisingly, they had little luck.