by Julian Sher
“I think I saw him,” gushed twenty-year-old Nancy Thiverge. “He was smiling. Oh, it couldn’t be him.” She was one of three secretaries from the justice department across the road who had taken time off from work to watch the hearing. Lucille Mercier, eighteen, another one of the lucky people to get a front-row seat to history, said, “I never realized it, but he really is a human being.”
The object of the young women’s attention was whisked into the Supreme Court building in an unmarked car through an underground garage. At first, Steven found his sortie out of Collins Bay to Ottawa exhilarating. It was his first trip outside the prison grounds since his transfer from Guelph in 1963, and the noise and bustle overwhelmed him. “It was fascinating seeing cars go past,” he remembers, having not seen late-model vehicles except on TV. Steven even got a taste of a real-life car chase, as one intrepid news photographer tried to snap a picture of the famous prisoner. “I can remember racing down the highway and a newspaper guy hanging out the car window and banging on our car window so I would look,” Steve says. “I thought he was crazy.”
The novelty of the excursion quickly wore off. After three years of stability and routine, Collins Bay had become his new and—by prison standards—fairly comfortable home. Suddenly, he found himself confined to the Ottawa county jail, where he stayed during the Supreme Court hearing. Whereas in Kingston, Steven had been busy all day and had accumulated the perks and privileges that came with seniority behind bars, in Ottawa he was stuck in a cramped and dingy cell.
The courtroom was his only reprieve, but the stares from the public gallery, the reporters and the judges unnerved Steven, who was accustomed to the anonymity of prison life. On the morning of Wednesday, October 5, 1966, he entered the room wearing a light brown suit made in the tailor shop at Collins Bay Penitentiary, black shoes, a white shirt and a grey tie. If the eager spectators were hoping to hear Canada’s most renowned convicted murderer testify, they were going to have to wait a couple of days. The Supreme Court hearing began with—and would largely be dominated by—the dry, often technical testimony of medical experts debating stomach contents, body decomposition and time of death.
But sparks would soon fly, thanks to the presence of some of the sharpest legal minds in the country. For the Crown, William Bowman, the director of public prosecutions since 1957, was in command. He had successfully defeated Steve’s appeal in 1960 and had worked closely with Graham and the police to prepare the case this time around. “He has a dry wit, a beguiling chuckle,” one newspaper reported. For the direct questioning of witnesses, the Crown hired Donald H. Scott, a successful forty-two-year-old Niagara Falls lawyer who grew up in Seaforth, the small town next to the Clinton air base. “There’s more than a casual touch of the traditional about tall, dark Donald Scott,” the Globe and Mail reported. “He believes profoundly in the dignity of the law and the proper trappings which tradition commands.”
Assisting Ted Joliffe with Steven’s defence was Arthur Martin, at fifty-three already a legend in legal circles. “His Clients Never Hang,” a headline in Maclean’s once proclaimed in the 1950s. By the time he retired in 1988, Martin had defended sixty clients accused of murder—not a single one was found guilty. When he died in 2001, his colleagues hailed him as “the greatest criminal lawyer Canada has ever produced” and “the most brilliant lawyer of our time.”
Martin’s often incisive, if not brutal, cross-examinations were more useful than classes for many law students, who flocked to watch his courtroom performances. “Emotion does not work,” he explained to one newspaper. “It only clutters up a good case and in the poor one it is well to remember that tears dry quickly. Facts are all that really count in the end.… Only as a last resort is an emotional appeal advisable, and even then it is useless without at least one fact.”
Over the next five days in October before the Supreme Court, Martin would reveal many new facts about the 1959 murder and trial. But he would find, much to his dismay, that facts—no matter how startling—were not always enough to move the judges of the Supreme Court of Canada.
It was fitting that the first witnesses called before the Supreme Court were the two medical experts who never got a chance to testify at Steve’s original trial. In 1959, Crown prosecutor Glenn Hays had strongly implied to the jurors that the analysts at the attorney general’s crime laboratory in Toronto fully endorsed Dr. John Penistan’s conclusions on the time of Lynne’s death. Now speaking publicly for the first time since Steve’s conviction, what would the lab’s scientists say?
“I made only a cursory examination,” John Funk, the biologist who first took the jar of stomach contents from the OPP on June 12, 1959, told Crown lawyer Donald Scott. “I noticed what I thought to be at the time some meat, some vegetable in the form of peas, and what appeared to be pineapple.”
“Did you make an exhaustive examination of the contents of the stomach?” defence lawyer Arthur Martin pushed when it was his turn to question the witness.
“I would say not,” Funk replied.
The man the OPP claimed had told them Lynne’s stomach indicated she died “not more than two hours” after supper, as Harold Graham insisted, was making no such claims under oath. In fact, he was insisting his analysis the day police arrested Steve was so preliminary he could not even be sure what the stomach contents were. Neither lawyer asked Funk to speculate on time of death—rightly so, as that was not the biologist’s job.
That expertise did fall within the purview of Dr. Noble Sharpe, the medical director of the government laboratory since 1951. “Mr. Funk brought the jar to me with a special request. He wanted me to make an examination in order to advise the investigating officer of an hour, if I could, from which they would commence to focus in their investigation,” Sharpe recalled. He found the stomach contents had a strongly acidic, thick consistency of a recently digested meal. “It was in my opinion they had been there one or two hours after eating,” he concluded.
On the surface, it appeared to be an endorsement of Penistan’s findings. But unlike Penistan, Sharpe saw these times as guidelines, not immovable goalposts. “The time based on … these examinations is at most an approximation, an inspired or educated guess,” he told Arthur Martin. “It is more likely only a probability or a hunch. It is of use to the investigator but of much less value to the court.”
Steve’s lawyer was able to secure that important admission by quoting from a revealing public article about the frailty of time-of-death testimony Sharpe had published in a scientific newsletter. What Martin did not know—like Donnelly seven years before—was how strongly Noble Sharpe had admonished Penistan in private. Martin never saw the three-page memo Sharpe wrote around the time of the Supreme Court hearing in which he criticized Penistan for being “so absolute.”
Martin, of course, had an even more serious handicap when it came to the medical evidence. He had little inkling just how much Dr. Penistan himself had made a reappraissal of the central planks of his own testimony.
The next medical witness was Elgin Brown, the analyst in the government’s biology department who had testified at the trial on the evidence of Lynne’s blood-soaked undershirt and Steven’s soiled underwear. Crown lawyer Scott had a different agenda for Brown this time, though. At the original trial, much had been made about a large section of Lynne’s blouse that was cut and went missing; the piece was never found at the crime scene or the autopsy room. The defence suggested that it could have meant Lynne was killed elsewhere or that her real assailant perhaps took the piece as a souvenir. The prosecution argued Penistan himself had cut the blouse when he snipped off the knot in the blouse under Lynne’s neck, although Penistan himself disputed that is what happened.
Now, seven years later, Scott found himself in the odd position of trying to prove, with Elgin Brown’s help, that Penistan had been wrong. In front of the Supreme Court judges, Brown had an assistant put on a pink blouse over her clothes. He then ripped it up the side, knotted it tight enough so that she
winced, and cut the knot. A sizeable piece of cloth fell to the floor in what one reporter called a “Perry Mason” performance.
On the less dramatic front of hard science, however, Brown conceded his tests found nothing to incriminate Steven. From all the material seized from Steven’s bedroom—pyjama bottoms, pillowcases and bedsheets—no hair fibres, or stains from blood or semen were found.
“You did not find on the clothing or material which the accused had been in contact with any hair or fibres from the deceased?” Martin asked Brown.
“That is correct, sir.”
“You did not find on the clothing or on the deceased girl any hair or fibres or material attributable to the accused?”
“No sir, I did not.”
Martin wrapped up by asking about the underwear taken from Steven after his first night in police custody—four days after Lynne’s disappearance. At the original trial, the prosecution had made much of the semen traces Brown had found, despite any evidence Steve wore those underpants the night he gave Lynne a ride on his bicycle, and despite overwhelming scientific evidence on the short lifespan of sperm.
“You do not know the age of the stain or how long it was there?” Martin asked bluntly.
“No sir,” came the scientist’s unequivocal reply.
At Steven’s trial, Crown prosecutor Glenn Hays devoted a lot of time to convincing the jury the soiled underwear was of “considerable significance” in Steve’s guilt. The Supreme Court hearing dispensed with it in less than fifty seconds.
The final witness of the morning was OPP identification officer Dennis Alsop. Alsop could not testify at the 1959 trial due to a limit on the number of expert witnesses. This time, the OPP would finally get a chance to put their best physical evidence before a court.
Alsop told the nine Supreme Court justices how he used Steven’s right shoe to make a mark in the earth, and photographed the imprint. He then enlarged the pictures of the marks found near Lynne’s left foot to “as great a magnification as I could get at that particular time.” When he compared the two photographs, he found the straight vertical indentations from the crime scene photo resembled the ribbing of Steve’s right shoe. He also discovered that “wavy lines” from the crime scene that he said came from the lift of a shoe were consistent with the arch platform of Steve’s runners.
“It is my opinion that the shoe that I wore to make the impression … made the marks that are shown,” Alsop told the justices, but then quickly added a caveat: “… or another shoe that would have the same characteristics could have made the same marks.”
It was hardly the definitive match needed for a capital murder case. And Martin’s vigorous cross-examination exposed a flaw with the evidence. Since Cpl. John Erskine had failed to put a ruler next to the scuff marks at the crime scene before taking the original photographs, Alsop had no accurate measure. In other words, the marks left by the killer could have been from a similar shoe to Steve’s—but in a size much smaller or larger.
“I found by enlarging this photograph to a certain size that the indentations shown … are the same height,” Alsop explained to Steve’s lawyer.
“You’re just enlarging the one to get to match the other?”
“That is correct.”
“Anybody can do that.… The fact that these impressions are the same distance apart or the same height doesn’t mean anything?” Martin asked. Alsop did not have a ready answer.
“In other words, any shoe of that kind can make it?” the lawyer pushed.
“Yes sir, with the same characteristics.”
“You have no idea how many shoes … were made in Canada of this kind?”
“No sir, I did not.”
Doris Truscott, like many in the courtroom, was not impressed. She “turned to her husband, wrinkled her nose and shook her head disdainfully,” according to one newspaper report. Even the Crown attorney later conceded in his summation to the justices the footprint evidence was “not demonstrable. It is not conclusive.”
Martin spent the rest of the afternoon and most of the following morning trying to remove another plank in the OPP’s testimony against Steve. Several police officers told jurors in 1959 it was difficult, if not impossible to identify a car on the highway, much less a licence plate, from the bridge where Steven claimed he saw Lynne get a lift. Martin did something Frank Donnelly had neither the money nor perhaps the foresight to do: he hired private detectives to conduct independent visual tests from the bridge. They held five different-coloured cards—blue, white, orange, yellow and red—next to the rear bumper of a 1959 Chevrolet. Various people standing at the bridge could distinguish almost all of the colours correctly. All of the participants were able to identify the make of the vehicle as well. Martin also produced a photography expert from the University of Toronto who explained that the police had used an incorrect focal length for the pictures they presented to the jurors. The car in the police photo was one-third the size it should have been.
On the footprint and car evidence, Martin had scored well. But now he faced a more daunting challenge.
“I now call Steven Truscott.”
With those five words, Arthur Martin invited Steven to tell his story in a courtroom for the first time. It was ten minutes after noon on Thursday, October 6, 1966.
“A dark, lean-faced man, his black hair glistening with oil, stepped through the double doors at the rear of the courtroom,” the Star Weekly reported. Steven was not shackled or handcuffed. “There was a slight smile on his face. Led by a guard, he walked to the front of the court, his brown suit bunched over his high, square shoulders. He stood erect at the witness table.” His parents said their son looked “pretty shaky;” the slight upturn on his lips, they said, was a “nervous smile.”
Steve’s parents had spent twenty minutes with him before he took the stand. “He had the butterflies. I was a little nervous and sort of excited at the same time,” his mother told reporters. “Steven is very much like me. Our emotions do not really show outwardly. You feel them inwardly, a certain excitement and tension. We told him to keep his chin up. We told him how nice he looked in his new brown suit.”
“Sure, he was tense,” said his father. “I know I would be if I had to get up in front of nine judges in a packed courthouse like that.”
Steven stood in a makeshift witness box with a chair and a desk. Doris, wearing a pale blue coat with an artificial flower in her lapel and a brown hat that matched her dress, never took her eyes off her son during his ninety-minute testimony. Dan dabbed his eyes occasionally, leaning forward with one hand on his knee.
Arthur Martin started with simple biographical questions. Yet, from the beginning, there were worrying signs that Steve’s memory was fuzzy at best.
Was Steve’s older brother about twenty-two years old?
“I think he is, yes.”
“Do you remember where you were when you first went to school?”
“I don’t recall just where I was,” Steve said in a voice so faint the justices could barely hear.
“You’ll have to speak louder so the court may hear you,” said Chief Justice Robert Taschereau. “I hear fifty per cent of what you said.”
(“It’s a little hard for my son,” Doris later told reporters. “He’s not used to raising his voice. They don’t talk that loud at Collins Bay.” Steve told his parents his knees had felt like buckling, but at least standing up had helped him project his voice.)
As Martin proceeded to lead Steven through the events of 1959, his memory did not improve. “I was at one party where Lynne Harper was.… I believe it was her birthday party.” (He was wrong; it was Lorraine Wood’s party.) He remembered he was wearing red pants the night Lynne disappeared but could not recall anything about the rest of his attire.
“I don’t remember what colour shirt I had on,” Steve said.
“I stopped at the end of the school and I was watching the Brownies who were having a meeting there,” Steve went on. “Lynne Harper came
over to the bicycle and asked me if I was going down by the river, and I replied that I was, and she asked me if she could have a lift down to the highway. And several minutes later we proceeded to the county road and I gave her a ride.”
What time was it, Martin asked.
“It was one minute either way of 7:30,” he said, a slightly different time than the “about 7:25” estimate he gave police in 1959.
“How do you know that?”
“There is a clock in the end of the school.”
As they headed down to the river, Steve recounted, Lynne asked him about fishing by the river. “She also mentioned that she was mad at her father for not letting her go swimming.… She also mentioned she was going down to the white house where they have ponies.” Steve could not remember passing Richard Gellatly, but he told the court he saw Douglas Oates, Butch George and Gordon Logan. He described the 1959 Chevrolet that picked up Lynne: “It had a lot of chrome on it and also, when it pulled out, there appeared to be a yellowish-coloured—it appeared to be a licence plate.”
Martin then asked Steve to explain the conversation with his friends at the bridge on the day after Lynne disappeared, when they told him Butch was spreading a story about Steve taking Lynne to the bush. “I went over and asked Arnold George, and he said he had never told anybody that,” Steve said.
“Were you in the bush with her?”
“No sir,” Steve said, insisting he and his pals were “more or less kidding with each other.”
“Did you make any statement that you’re not in the bush, you had just been at the edge of the bush looking for calves, or anything of that nature?” Martin asked.
“No sir.”
“Had you been anywhere near the bush looking for calves with Ms. Harper?”