Until You Are Dead (updated)

by Julian Sher

  Martin asked him specifically about Penistan’s 7:45 p.m. cutoff for the murder. “I would say it is quite impossible and, in fact, I would say it could be dangerously misleading to the investigating officers,” Camps told the Supreme Court justices.

  When it was his turn to grill the witness, Donald Scott took direct aim at the doctor’s dismissal of Penistan’s estimate of the time of death. “Do you agree in this case this girl could have died within that period?” the Crown lawyer asked.

  “This girl with the stomach contents could have died within two hours, could have been nine, ten, eleven hours. But I do not think you can say she died fixing the time within half an hour,” Camps maintained.

  Surely pathologists can give the police some kind of guidance about the time of a murder, Scott wanted to know.

  “I can only say from my experience over a number of years that I have been so far off centre that I am almost afraid to indicate this to the police officers,” Camps informed him with surprising humility. “It becomes a matter of a guess. You can twist to get on either side as much as you like.”

  But then came the doctor’s most embarrassing moment. Scott read excerpts from a letter Camps wrote about the LeBourdais book stating the prosecution’s medical evidence could not stand up to scrutiny. Did that not show the reputed doctor had made up his mind “long before” he had examined first-hand the medical testimony, Scott asked.

  Camps had been caught. The doctor stumbled, called the question “misleading,” and said he did not like anyone questioning his integrity. But when it was over, Scott had efficiently deflated the defence’s star medical witness. Little did Scott know that his own top performer would soon suffer an identical fate.

  Keith Simpson also came with a high medical pedigree, and an eagerness to flaunt it. A fierce rival of Camps, he told the press, “In some thirty years, I have completed some 100,000 autopsies.” A remarkable achievement, requiring over three thousand autopsies a year, or more than nine every day—weekends and holidays—non-stop for three decades.

  When Simpson repeated that claim in front of the nine Supreme Court justices, he raised his voice to a near shout, according to the Toronto Daily Star, and an “incredulous murmur” spread through the courtroom. Justice Cartwright, perhaps taken aback by the prospect of a single doctor examining that many corpses, interrupted to say he was not quite sure he had heard the doctor’s words. Simpson reassured the court he had personally performed and not merely supervised the 100,000 examinations.

  Based on that expertise, Simpson gave Penistan high praise for carrying out a “very competent and conscientious investigation” of the crime. “He was right to conclude that it was likely that death had taken place somewhere up to two hours after eating that meal,” Simpson said, choosing his words carefully, since “somewhere up to two hours” was still much less precise than Penistan’s down-to-the-minute snapshot of the time of death. Simpson said there was a general consensus in the medical literature that the bulk of a meal leaves the stomach inside of two hours.

  “This girl’s death must have taken place within two hours after taking that meal,” he concluded.

  Scott then proceeded to use Simpson to discredit the main tenets of Martin’s new theories. The doctor said there was “a very simple explanation” for the discolouration or blanching on Lynne’s body. Just before the autopsy, the doctors placed her body on its side on some kind of sheeting or covering. As long as the blood was fluid when this took place, discolouration could appear, Simpson said, and blood could remain liquid in a dead body for a long period of time.

  As for the penis sores, Simpson conceded he found them “perplexing” and agreed they were not the ordinary kind of injury produced from forced sexual intercourse. (Privately, Simpson had told the prosecutors in a letter before the trial that “other explanations” for the sores “would be acceptable in an adolescent boy—masturbation perhaps most of all.”) So he came up with an ingenious way to undercut Martin’s new evidence. Simpson accepted that a pre-existing skin irritation could have started the lesions, but perhaps they were rubbed “in some way which caused them to become more sore or to weep or crust”—rubbed, Simpson suggested, as part of a sexual assault.

  When it came his turn to question Simpson, Arthur Martin realized it would be his most important cross-examination. He wasted no time in launching his attack. Was it not true that in his published review of LeBourdais’ book, Simpson had defended the medical evidence as “surprisingly sound,” even though he had never seen it or read the trial transcript? “I formed the opinion from the book,” Simpson was forced to admit, revealing the same sort of bias that had humbled his rival, Francis Camps.

  Martin then proceeded to use Simpson’s own writings to devastate his testimony. Simpson’s textbook on forensic medicine had gone through five editions, yet Martin noted that nowhere did the illustrious doctor even mention stomach contents as a reliable guide for the time of death.

  “No sir,” Simpson agreed. “That is, as may be evident to you, a short book for the student.”

  “It would not have made it much bigger to put in a sentence indicating that stomach contents were also a reliable guide,” said Martin, in a biting reply that showed why his cross-examinations were required reading in law classes.

  “I think you may expect the next edition, sir, to contain some reference,” Simpson said, in an attempt to recover.

  Never one to miss a chance to skewer a witness, Martin held up Simpson’s book. “I will throw this away and buy the next edition,” he promised. (Martin could save himself the expense. Contrary to his pledge in court, Simpson never did make a reference to stomach contents in any subsequent editions.)

  The defence counsel was not finished humiliating the prosecution’s star witness. Martin quoted from another book Simpson edited, which said that the “state of digestion of contents of the stomach … are wholly unreliable.” Simpson could only reply that there was a “sharp difference” between state of digestion and stomach contents.

  Martin then offered Simpson more of his own words to digest—one of his books featured the autopsy of a woman, strangled to death, whose stomach showed meat fibres, peas and potatoes as late as nine hours after her death. Simpson conceded the parallels with Lynne’s murder were striking—the cause of death was the same and the stomach contents were remarkably similar. The doctor said he knew little about the facts regarding the case in his book that could account for the exceptionally slow digestion time.

  “You do not know what the facts were with respect to Harper?”

  “No, sir; I am saying this is—”

  “So, we have another parallel,” Martin cut in quickly.

  Based on all this, how could Simpson agree with Penistan’s attempt to pinpoint the time of death between 7:00 and 7:45, Martin asked.

  “To start with, ‘pinpoint’ is not a word one could use to establish the time of death from one observation,” Simpson said. “It is always an approximation.”

  “The words Dr. Penistan used were that he would put the time of death between 7:00 and 7:45,” Martin pushed. “Those are relatively narrow limits.”

  “I do not think it was pinpointing,” Simpson insisted.

  What about rigor mortis, Martin barrelled on. Did Simpson’s own book not say in high temperatures it could disappear in eighteen to twenty-four hours? If that were the case, Lynne could have died on Wednesday. Yes, the doctor admitted. Simpson also agreed that he would expect to see green staining on the abdomen about forty-eight hours after death. “The fact that you do not find it … tends to put the time of death later rather than earlier?” asked Martin.

  “Yes, I think you put that very fairly, sir.”

  Martin wrapped up his cross-examination of Simpson by pushing him on the place and even the cause of death. “If you get a pattern of purplish discolouration on both sides, it would indicate the body lay first on its face and then on its back?”

  “Yes sir, that is possible.”r />
  “And if the front or the face was pressing against something, you would get a blanching, wouldn’t you?”

  “Yes sir,” Simpson replied, conceding that several autopsy photographs showed there was blanching on the face and arms.

  “Have you ever seen a pattern like that from an arm resting on wrinkled clothing?”

  “Yes sir.”

  “On a car seat, perhaps?”

  “Yes, I have seen it lying on cloth.”

  “Normally you would expect a pattern like that to become established by the body lying on it within an hour after death?” Martin continued.

  “Yes sir, at any time after death when the blood is still fluid,” Simpson agreed.

  “But normally that … would be within an hour or two after death?

  “No sir, it may remain fluid for a day,” Simpson responded, trying to dig himself out of a hole. He had already accepted there was blanching and a pattern on Lynne’s skin. Now he had to somehow attribute those marks to the funeral home where doctors examined her. He suggested Lynne’s blood may have clotted for two days and then unclotted precisely around the time her body was moved in the autopsy room.

  At best, this was dubious scientific speculation, but it was the only way Simpson had to explain his theory that the patterns on Lynne’s skin came from the autopsy room and not elsewhere.

  Finally, Martin introduced the possibility that even the cause of death was worth re-examining. Lynne’s thyroid was fractured, but Simpson agreed that that was “extremely rare” when a killer strangled the victim with a cloth or rope instead of hands. He also agreed other signs usually found in victims of strangling—petechiae, or round, purplish red spots caused by bleeding under the skin, as well as tension spots in the eyelids and the undersurface of the scalp—were absent.

  “Would that indicate other factors being involved in the death of this girl?” Martin asked.

  “I think it is possible, sir.”

  Were all these circumstances not inconsistent with the death having occurred elsewhere, Martin asked.

  “I can’t exclude that, sir,” said Dr. Keith Simpson.

  It was a major breakthrough. Martin had one of the chief prosecution experts agreeing that Lynne—murdered perhaps “later than earlier”—could have been killed elsewhere, a pattern forming on her skin as her body lay on one side, perhaps in a car.

  It had been an impressive duel, certainly more full of sparks than any of the medical debates during the trial in 1959. At least one person in the courtroom seemed to be enjoying the show. When the hearing recessed for lunch after Simpson completed his testimony, Steven winked at his mother as the guards led him out.

  The testimony of the final two medical experts for the Crown was almost anti-climactic, but it, too, illustrated the frailties of scientific pontification in a court of law. Dr. Milton Helpern, the chief medical examiner for the city of New York, also played the numbers game, telling the court he had performed approximately twenty thousand autopsies. His conclusion on Lynne’s demise was precise. “Death had occurred no more than two hours after the food was ingested. I think that is the rule in these cases.”

  But Helpern ended up eating his own words when Arthur Martin quoted a book Helpern had written on legal medicine and pathology. The book warned stomach contents should be treated “with caution,” and any opinion about the time of death “should be guarded.”

  Samuel Robert Gerber, a Cleveland doctor and a coroner since 1937, was equally definitive when Scott asked him how long the food had been in Lynne’s stomach: “Less than two hours,” the expert said without hesitation.

  But in one of the most devastating cross-examinations in the hearing, Martin succeeded in showing the futility of trying to narrow time of death to exact minutes using stomach contents. He subjected Dr. Gerber to the kind of grilling Dr. Penistan was lucky to escape in 1959.

  “You say less than two hours. How much less than two hours?” Martin began.

  “It is less than two hours. And since I know that the child had eaten at 5:45, and that child had been seen around 6:30, so therefore it had to be between 6:30 and 7:45.”

  But Martin was not going to stand for that. He pointed out the doctor only knew Lynne was not dead by 6:30 because eyewitnesses had seen her. “I want to know on the basis of the stomach contents, how much less than two hours?”

  “I couldn’t give you any exact minutes,” Gerber said.

  “You are purporting to say how long the food was in the stomach from the stomach contents,” Martin said, in a question that could well have been asked of all the Crown witnesses. “How long from the appearance of the stomach contents alone has this food been in the stomach?”

  “My answer is less than two hours,” Gerber said. “I cannot define it in minutes.”

  “Why did you strike at two hours, why not two hours and five minutes?”

  “I can give you five minutes,” the doctor said, suddenly transforming science into a poker game.

  “Ten minutes?” Martin upped the ante.

  “No, I am not going to give you ten minutes.”

  “What makes the difference between five and ten? What would the stomach have to look like to give you that extra five minutes?”

  Martin did a wonderful job of exposing the folly of relying on something as variable as digestion to pin a girl’s death—and a boy’s life—down to a few minutes.

  After spending nearly three days debating details of Lynne’s lifeless body and the contents of her stomach, the Supreme Court moved on to hear rival psychiatrists battle over the contents of Steven Truscott’s mind. For the Crown, the chief witness was James Joseph Hartford, the consultant who first saw Steven at the training school in Guelph.

  “I found him to be generally an intelligent, rather likeable boy, but I also found he was very guarded,” the psychiatrist said. “I think, to an untrained person, he would appear to be reasonably normal.” But as a trained professional, the doctor was not tricked; he determined that what he saw as Steve’s flat emotional level meant “the boy was ill.”

  Martin leapt at the doctor’s facile diagnosis. “Would you not expect a fourteen-year-old who was been through a murder trial and found guilty and sentenced to be hanged, and under sentence of death for at least three months, and removed from his family into an institution, to be somewhat traumatized by that experience?” he asked.

  “I would expect him to be very traumatized,” the doctor admitted.

  “You would not expect it to reduce his emotional level and his involvement with people in this new environment?”

  “No sir,” said the psychiatrist.

  Martin pointed out that the superintendent at Guelph praised Steven for his good sportsmanship, fair play and emotional control, and described him as “a splendid example to other boys.” But Hartford insisted Steve was a very suspicious, even paranoid boy with “psychopathic tendencies.”

  How did he define these tendencies? Martin read aloud to the court one of Hartford’s reports about what he termed Steven’s “psychopathic flavouring.” “This latter is indicated by his apparent philosophy that guilt is something that has to be proved and the onus is not upon him to establish his innocence,” Hartford said. The nine Supreme Court judges broke into smiles upon learning the prison psychiatrist had taken one of the fundamental principles of Canadian justice—innocent until proven guilty—and turned it into proof of mental illness.

  Martin then introduced several psychiatrists who painted quite a different picture of Steven. The experts had been part of the panel that George Scott, the chief psychiatrist at Collins Bay, commissioned in March of 1966. But Scott never expected the panel’s conclusions would indicate the real sickness was with the way psychiatry was practised in the prisons.

  Dr. Robert McCaldon, who chaired the panel of psychiatrists, said the unanimous evaluation of all four consultants was that Steven was not suffering from any psychiatric or behavioural disorder. He also told the court the psychiatrists
concluded in their final report “that Truscott’s admission in his parole application was not necessarily a direct admission of guilt, but rather, a carefully worded application designed to favourably impress the parole board.”

  The panel also made a not-so-veiled criticism of the years of harassment Steven endured at the hands of doctors such as Scott and Hartford. “It was agreed that the primary orientation of psychiatry and the use of psychiatric techniques should not be to extract confessions from inmates.”

  All Crown lawyer Donald Scott could do in his rebuttal was argue that these psychiatrists had seen a twenty-one-year-old Steven in 1966, not the “psychopathic” teenager Hartford was treating in 1960.

  But then, as a closing expert—the last witness to address the Supreme Court of Canada—the defence called Dr. John Rich, the psychiatrist and adolescent specialist the Truscotts had tried for months to get into Collins Bay prison to see their son. Rich studied Steven’s entire medical file—reports from prison doctors, teachers and other officials going back to 1960—and interviewed him twice in 1966.

  He found Steve’s “lack of spontaneity,” which so fascinated the prison doctors, to be not only “completely understandable in the light of his experience,” but also typical of most training-school boys and jailed adolescents.

  “One of the striking things about all the records is that [they] … are not only inconsistent with psychopathy but actually contradicted [it],” Dr. Rich said. “I find it hard to believe that he was a psychopath or psychotic on a number of discrete occasions and no other occasions.”

  It was a final blow against the psychiatric presumptions of the doctors who for so many years had tried to pigeonhole a boy because he refused to admit his guilt.

  Round One—the unprecedented public hearing with witnesses—was over. Over five days, the Supreme Court justices had sat through the sometimes extremely technical testimony of twenty-four witnesses. Still, there had been important revelations: a new explanation for the sores on Steve’s penis and fresh theories about blanching and other signs that Lynne might not have died in the bush. The validity of using stomach contents as a test for time of death came under much more vigorous fire than in 1959.