by Julian Sher
“No, I wasn’t.”
“Do you remember any discussion about that time about calves in the bush?”
“No sir.”
After a lunch recess, Martin asked Steven about Butch George’s story that the two friends plotted to mislead the police.
“Did you at any time ever request Arnold George to say he had seen you when, in fact, he had not seen you?”
“No, I didn’t,” Steve said.
Then Martin approached the issue of the sores doctors found on Steve’s penis the night of his arrest. “They were well on the way to healing,” Steve insisted. “Dr. Addison described them as oozing and there was no oozing whatsoever.”
“I want you to listen to this next question quite carefully and apply your mind to it,” Martin said slowly. “What did the condition of your penis look like when you first noticed there was something unusual existing there?”
“It was about six weeks before I was picked up,” Steve said. “And it started off, what appeared to look like blisters, and continued to worsen from there until it was in the state it was when I was picked up.”
“What caused it to worsen? How did its appearance change?”
“Well, one blister would break and it just seemed that more would appear.”
“Now, when you first noticed this condition that you describe, did you tell your father about it?”
“No, I didn’t.” Steven answered. “I was too embarrassed.” Steven told the court the first people he told about his condition were Martin and his colleague Ted Joliffe in Collins Bay Penitentiary. It was another example of how Steve’s dreadful memory even led him to get things wrong that would have helped him. On the very night of his arrest, in fact, Steve told Dr. John Addison the sores had been on his penis for “four to five weeks,” according to the doctor.
Martin, knowing he was going to use Steven’s struggles with the psychiatrists later in the hearing, asked Steven about his opinion of them. “The majority of them wanted me to admit I was guilty,” he told the nine Supreme Court justices.
“What did you do?”
“I would not admit to it.”
But Martin also knew Steven was vulnerable because his detractors saw his 1964 parole application—with its mention of “one dreadful mistake”—as a confession. “Did you intend to make any admission of guilt?” he asked.
“No, I didn’t.”
“What did you mean by that?”
“Well, when you are sent to the penitentiary it is considered that you’re paying for the crime that you have been sentenced for. This is what I meant when I asked that I had paid five years of my life. And from observing all the people in the penitentiary, it was obvious to me that crime didn’t pay,” Steve answered. “I decided that it wasn’t going to benefit me by arguing any more.… It would be in my benefit to more or less go along with them on their terms in order to get out.”
To conclude Steven’s testimony, Martin asked him a simple five-word question that no one had ever heard Steven Truscott answer publicly.
“Did you kill Miss Harper?”
“No, I didn’t.”
“Your witness,” Martin said, giving Crown attorney Donald Scott a chance to grill Steven Truscott about his story. Steve continued to display a dismal memory of the most basic events surrounding the crime. Steven denied even the most innocuous of events. For example, several people spotted him on the county road before 7:00 p.m. Steve had told Kenny Geiger he had just passed his mother, Beatrice, on her way down to the bridge. But in front of the Supreme Court seven years later, Steven denied it all.
“Did you see him at any time?” Scott asked, in reference to Kenny.
“No, I didn’t.”
“Am I correct here, Mr. Truscott?” Scott said in disbelief. “You did not see Mrs. Geiger, you did not see Ken Geiger, you did not see Paul Desjardine?”
“That’s correct,” Steve said. He could have said he did not remember seeing them, but by refusing to acknowledge these encounters even took place Steve was damaging his credibility when it came time to refute much more damning testimony. Steve told the court he never asked Butch to lie for him, and he denied Jocelyne Gaudet’s story that he had dropped by her house. But would the nine justices believe him if he denied the obvious fact he met several people along the county road?
Scott asked Steve if he met Richard Gellatly—the only person on the county road Steve had singled out in his police statement. If anything, meeting Richard gave Steve important support because Richard claimed they crossed paths around 7:25 p.m., around the same time Steve said he left the school.
“No, I didn’t,” Steve said, inexplicably.
Even once Scott read back Steve’s conversations with police officers about meeting Richard, Steven stuck to his denial: “I don’t recall that, sir, no.”
Scott asked Steve if he recalled various people testifying at the trial—Paul Desjardine, Beatrice Geiger and Kenny Geiger. Always, his answer was the same: “No sir.” Steve even said he did not recall knowing schoolmates like Bryan Glover.
“I was wondering, frankly, Mr. Truscott, bearing in mind the nature of the evidence that I have read to you … and bearing in mind the nature of the charge against you, why you cannot even recall these people giving evidence?”
“I don’t recall them giving evidence.”
“I know that, sir. My question was: why don’t you recall?”
“Because I have forgotten,” Steve said, finally offering an explanation that implied he was not lying about certain incontrovertible encounters—but he had limited memory of events from a traumatic, jarring few days in his boyhood.
“And what was your reaction, if you recall, when that evidence was being given?” Scott continued.
“I don’t remember,” Steve said simply.
Scott went on the attack against one of Steven’s most vulnerable stories before the court—that he had told no one about the sores on his penis until seven years later when his lawyers asked him. Scott asked if Steven had told his father about the apparently long-lasting injuries after the two doctors testified about them at the preliminary hearing in July.
“I don’t remember whether I told him anything or not,” said Steve.
Scott wanted to know what happened when the sores became such an incriminating issue at the trial in September 1959. “Even at that time you did not tell your father or anyone how they occurred?” Scott asked.
“No, I didn’t,” Steve insisted.
Scott, having inflicted the maximum amount of damage, turned to the nine justices. “That concludes my cross-examination, my lords.” Steve’s defence lawyer, Arthur Martin, added, “I have no questions in re-examination, my lords.”
Steven Truscott’s one and only day in court was over.
“He was wonderful,” said his father. “I am very pleased with the way he carried himself and the way he answered.”
“We’re very proud of him,” Doris Truscott told the press. “We feel just the way he does. We know that he did not commit this crime. There has never been any doubt in our mind.”
With conviction, Steve stuck to the core of the story he first began telling police the morning after Lynne disappeared, a story that had barely changed in the days and months after the murder and in the years of prison. But in other regards, especially his limp answers in the cross-examination, it was a lamentable performance. The best that could be said was that Steve’s memory was so uniformly—rather than selectively—poor that he certainly did not come off as crafty and calculating. After all, he denied not just incriminating testimony but also events that were neutral or even helped prove his innocence, such as meeting Richard Gellatly on the county road.
With the benefit of hindsight, Steven today says his own lawyers did not adequately prepare him. “I wasn’t even given a copy of my [original police] statement to go over to remember,” he says. “So at the Supreme Court hearing when they started asking you questions, you don’t remember clearly.”
Malcolm Stienburg agreed. The chaplain from Collins Bay had travelled to Ottawa to lend support to the most prominent member of his prison flock. “This was all like a big whirlwind swirling around him. He was sort of standing outside watching it happen,” he says. “It was a pretty draining experience.”
With his mercifully short testimony at the Supreme Court over, Steven returned to Collins Bay for the three-day Thanksgiving weekend. At least he was back in familiar surroundings, with people he knew.
He had no idea how many more years prison would be his home.
35
A BATTLE OF SCIENCE AND EGOS
Steven’s brief appearance before the Supreme Court justices was the exception in a hearing dominated by experts. Steven was, in fact, the only non-specialist to testify—the other twenty-three witnesses were police officers, detectives or scientists. No less than sixteen of them had medical or psychiatric credentials.
Arthur Martin relied on three doctors to try to prove a surprising new defence theory that Steven’s penis sores did not come from raping Lynne or even excessive masturbation, but were signs of a skin irritation to which Steven was prone. Dr. Emilian Marcinkowsky, a medical officer at the Guelph reformatory told the court he treated Steven several times for dermatitis in his ears and armpits and once for “an inflamed cyst of the dorsum of the penis.” Dr. Charles Danby, a dermatology specialist in Kingston, testified to treating Steven at least six times at Collins Bay for skin ailments that were “oozing and scaling and crusted.” On one visit the doctor noticed “a large, patchy nummular type of eczema” on his shoulders, face and ears. Nummular, the doctor explained, means coin-shaped—“small or large round areas in the skin that are reddened and marked by innumerable small blisters which opened and ooze.”
It sounded strikingly similar to the sores “the size of a quarter” that doctors first noticed on Steven’s penis at the station guardhouse on June 11, 1959. Danby said the injuries were not typically caused by intercourse. Rather, the dermatologist suggested, it was a case of herpes simplex, commonly known as cold sores, aggravated by secondary bacterial infection and irritation from urination and wearing underwear and jeans.
For more support, Martin called on Dr. Norman Wrong, a senior dermatologist to the Canadian army during World War II and a past president of the Canadian Dermatological Association. He said it was “extremely unlikely” that intercourse would cause lesions on the side of the shaft of the penis.
“I think either it was simple herpes plus infection or … irritation from sweating and the skin surfaces rubbing together,” he said. He explained that while it would be unusual for simple herpes to affect both sides of the penis at the same time, such an infection could easily be aggravated in a teenager who was frequently riding his bike, wearing rough jeans and collecting dirt in his clothes.
It was a bold yet plausible explanation for what had always been a prosecution trump card.
The dermatologists were just a precursor to the real medical war—a no-holds-barred legal slugfest as some of the top experts in the world fought it out over the intricacies of stomach contents. It was a war of science, of egos, of international heavyweights bragging about how many autopsies they had done. But more often than not, their own expansive boasts and quick judgments tripped them up.
First up for the defence was Dr. Charles Sutherland Petty, the assistant medical examiner for the state of Maryland. A tall man, wearing glasses and a bow tie, he said he performed four hundred autopsies per year. Martin began by asking him to estimate the time of Lynne’s death based on contents of her stomach.
“I would find myself completely unable to pinpoint any time,” Petty replied.
“What would be the limits either way?” Martin asked.
“Several minutes, twenty, thirty, forty minutes … perhaps as long as eight hours,” Petty replied. He criticized Penistan for not taking into account the many factors that alter digestion. Penistan also did not take into account how hot weather influences rigor mortis, delaying its onset and speeding up its disappearance.
Petty also stressed the absence of certain telltale signs of decomposition he expected to see in a body that had been dead for forty-eight hours or longer: bloating, the outline of clearly delineated veins, and slippage of the skin. He estimated the time of death at “less than forty-eight hours” before the autopsy—in the neighbourhood of thirty or thirty-six hours, possibly forty hours. In effect, Petty was saying Lynne probably died on Wednesday, not on the Tuesday evening when she was with Steve.
Martin also used Petty to prepare the terrain for a scientific challenge to another aspect of the 1959 conviction: the place of Lynne’s death. Much of Petty’s theory rested on hypostasis, the discolouring as blood tends to settle in a dead body. In the autopsy photos, Petty noticed a blanching on Lynne’s left arm, her left breast, and on the left side of her face, particularly on her forehead and cheek. “I believe this body lay on its left side for a period of time after death and was moved at a later time,” he concluded, a potentially shocking determination that—if true—would rule out Steven as the killer.
Petty gave other reasons why he thought Lynne was not killed in the bush. Dr. Penistan told jurors the marks on Lynne’s back were proof her body had been pressed against the twigs on the ground, but Petty insisted the twigs would have snapped under her weight or made small linear scratches, instead of the tiny holes found on her torso. He also speculated the little scratches on the outside of both her legs—with no apparent bleeding—indicated her killer had taken hold of the upper part of her body and dragged her backwards through the bush.
Donald Scott began his cross-examination with the kind of testy sparring that would mark most of the medical skirmishes at the Supreme Court. Was it not true that Dr. Penistan found “very little” food had left the stomach to the intestines?
“Well, sir, my car took ‘very little’ gas yesterday. Is that one gallon or ten?” Petty retorted.
Scott then read from a medical textbook that stated the bulk of a meal leaves the stomach in one or two hours. It sounded definitive—until Petty insisted the lawyer read the entire passage, which concluded: “That emptying may not be complete for three to five hours or even longer.”
Unshakeable, Petty stroked his chin and gazed at the ceiling during much of his grilling. But then Scott scored several damaging blows. Petty’s theory of a lingering rigor mortis, and therefore a more recent death, was based in part on an arched back and a stiff finger he spotted in one of the photographs. Scott pointed out the finger’s apparent stiffness came simply from resting on another digit, and suggested the arching of Lynne’s body was a natural occurrence.
Scott also tried to undermine Petty’s claims that the blanching on Lynne’s left side indicated the body had been moved long after Steve was safe at home. Was it not true, the attorney asked, that simply transferring the body from the ambulance to the funeral home to the autopsy table could cause different shadings as the blood settled?
“No, sir, I do not agree with you on that,” Petty said, insisting that no momentary change in position would have any effect after twenty-four hours had passed between death and when the body was moved.
Petty’s theory got support from the next medical expert, Dr. Frederick Jaffe, the assistant pathologist for Toronto Western Hospital and regional pathologist for the government since 1951. He, too, saw “a peculiar pattern” on the left cheek, the left side of the nose and forehead and the left shoulder and upper arm. “This type of pattern is frequently caused by the dependent portion of the body resting upon clothing or cloth of some sort, the folds of cloth producing this type of pattern,” he said, suggesting significantly the pattern occurred within the first hour of the blood settling.
Crown attorney Donald Scott countered that the different angles, distances and lighting in the autopsy photographs made them unreliable indications of blanching. He also suggested that as long as Lynne’s blood remained fluid, the discolouration on her skin could continue even in the autopsy room. Jaffe—in an important concession—agreed that in many strangling deaths, blood might re-liquefy after clotting.
Like the other defence witnesses, Jaffe warned the Supreme Court justices that stomach contents were a most unreliable guide to determine time of death. “Two equally competent observers looking at the same stomach contents may get very different impressions and therefore arrive at very different conclusions regarding the time of death,” he explained. “This makes it basically an almost useless method.” But based on the absence of changes in the decomposition of the body lying in a hot and humid bush, he hypothesized Lynne died perhaps “halfway between twenty-four and forty-eight hours” before the autopsy—again, on Wednesday, not Tuesday.
The Supreme Court was now halfway through the fourth day of its hearings, but the most acrimonious duel of doctors still lay ahead—between two medical giants from the other side of the Atlantic. Dr. Francis Edward Camps, described as England’s foremost authority on the medical aspects of crime, was the director of the department of forensic medicine at the University of London medical school and the co-author of a standard text on forensic medicine. He was so outraged by what he saw as the shoddy medical evidence at Steve’s first trial, he wrote to LeBourdais’ publisher early in 1966 to offer his help.
On Tuesday, October 11, Dr. Camps found himself in the chambers of Canada’s highest court. Martin wanted this renowned pathologist to reinforce the defence assault on the medical science used to convict Steven. While conceding that “one has to be very, very cautious interpreting photographs,” Camps agreed with Martin’s other witnesses that the autopsy pictures showed a consistent difference in contrast on the face and the upper part of Lynne’s breast, indicating her murderer kept her body on the left side for some time before placing her in the position she was found. He also concurred there was evidence the sexual assault occurred elsewhere than the bush, since investigators found no semen or acid phosphatase on the ground near her body.