Until You Are Dead (updated)

by Julian Sher

  Perhaps most importantly, a fourteen-year-old boy who had sat silently during his murder trial in 1959 spoke out in his own defence, now as a young man of twenty-one. Steve’s father had followed the other witnesses with nervous attention. “Dan Truscott’s mouth tightened and he shut his eyes as if in pain,” the Toronto Daily Star reported at one point. But when his son stood up to testify, Dan Truscott was a proud father.

  When the public sessions were over and Steven exited the courtroom, Dan “once more took leave of the son who had grown up in prison,” the newspaper reported. He put his hand on Steve’s shoulder.

  “I’ll be seeing you, son,” he said.

  A flicker of a smile crossed Steven’s face.

  “See you,” Steve said, and he was gone.

  36

  THE LAWYERS SQUARE OFF

  The public glare diminished after October, but the legal battles intensified. With the unprecedented hearings from witnesses behind them, the Supreme Court justices turned to more familiar terrain. In December, the lawyers submitted their written briefs. For four days in January, the judges heard oral arguments.

  The long months of waiting and constant media attention were beginning to wear on the Truscott family. Doris admitted to a reporter she was taking tranquilizers. She recounted one visit to Kingston, waiting to meet one of Steve’s lawyers: “We were in a motel restaurant. I tried to raise the cup of coffee to my mouth. I couldn’t.”

  Still, she put up a brave front. “Like Steve, we’re saying we haven’t built up our hopes,” Doris said. “But inside we have. We have no doubts about the outcome, no doubts at all.” Amidst all the tension, Dan Truscott found time to think of the other family traumatized by the case. “It’s awful for the Harpers,” he told one newspaper. “Everything brings back things for them. After all, she was their daughter, and they went through hell, too. I’ve always felt pity for them.”

  At Collins Bay, Steven returned to the reassuring stability and anonymity of his daily routines. “We don’t take sides,” a new warden named John Meers told reporters, when asked how the prison was dealing with its highprofile inmate. “In this case, he is guilty until proven innocent.” But some newspapers reported otherwise. “We’re rooting for Steve,” an unnamed senior penitentiary official told the Toronto Telegram.

  Doris had told the press in the spring she hoped her son would be home by Christmas. It was not to be. “Well, of course we’re disappointed,” she said, consoling herself with another holiday visit to a penitentiary. “We have nothing special planned, however, since all we will be allowed to do is to talk across a table,” Doris added.

  Birthdays behind bars were also becoming a ritual for the Truscott family. On January 15, Steve turned twenty-two—his seventh birthday in jail. His parents, sister and two brothers sent him cards—penitentiary rules did not permit gifts.

  Ten days later, his lawyers began their final fight to free Steven from prison.

  On Wednesday, January 25, 1967, Arthur Martin stood before the nine justices to begin one of the most important legal arguments of his career. For the next two and half days, the gifted orator would try to convince the robed arbiters of Steven’s fate why the evidence did not justify a conviction.

  Martin’s first task was to try to convince the justices that—even on the basis of the 1959 evidence—there were reasonable grounds to throw out the guilty verdict as unfounded. He began with an attack on the chief prosecution child witness, Jocelyne Gaudet. “The evidence is subject to a number of frailties and improbabilities,” he argued. “But even if her evidence is accepted at its best value, it does not show an intention on the part of Steven Truscott to lure her into the bush … and it was not admissible on trial anyway.” Jocelyne’s times were so off-base the prosecution had to throw them out for her testimony to be of any use, he reminded the judges. No other witness aside from Butch George supported her story about being down at the bridge looking for Steven.

  Martin questioned Steve’s supposedly hush-hush plot to lure Jocelyne into the bush. He wondered where the requisite secrecy was if Steve talked to her in classroom with the teacher present, and then went by her house “where her mother and father would be aware that he was the person who had called for her if anything happened to her.” He noted that Steven’s departure from the school with Lynne in full view of the Brownies and ball players was “inconsistent with harbouring any secret or evil design.”

  Martin raised a thought-provoking hypothetical legal quandary to illustrate his point. If Jocelyne had told her mother on Tuesday afternoon about Steve’s alleged advances and she called in the police, would there be enough evidence to charge Steven with attempted indecent assault? Hardly. Yet the prosecution at Steven’s trial used the same shaky evidence to suggest Steven had a criminal intent toward Jocelyne and then, in her place, Lynne.

  “Surely it is not a criminal intent to go out on a date with the girl?” asked Justice Douglas Abbott.

  “No, it is not,” Martin answered, “but the prosecution, in my submission, called it a criminal intent by saying it was God’s blessing that this girl was late for her supper and the other girl went to her doom.”

  “Are you suggesting that the Crown went so far as to say that there was a proof of intention, that the accused intended to rape?” Justice Cartwright asked.

  “I submit so, my lord; if this was not the suggestion, what was the suggestion? That they were there to pick the violets?” Martin answered with his usual wit.

  “Do you see any responsibility in the trial judge to have stopped Crown counsel … in his tracks when he started to tell the jury about Jocelyne narrowly missing her doom?” Justice Emmett Hall asked.

  “It would have been better if he had,” Martin agreed. “It would have brought home to the jury more emphatically that this was not to be used for that purpose.”

  Martin quickly dismissed Butch George, noting the wide discrepancies in his constantly changing tales made it “very dangerous to act on his evidence.” Martin was equally dismissive of Philip Burns, insisting his testimony about not seeing Steven “is of very little weight.” Philip also did not see Richard Gellatly, Martin reminded the judges—did that mean Richard was not on the road?

  Other children were equally unreliable, Martin said. When Steve’s friends testified about their “boyish horseplay” at the bridge on the Wednesday evening when they teased him about being in the bush with Lynne, each witness had a different version of the conversation, even though the boys were only about five feet apart from each other.

  “Caution should be used in approaching the evidence of these children, even under the most favourable circumstances,” Martin warned. He reminded the judges that two of the witnesses—Butch George and Tom Gillette—read over their police statements many times just before entering court. Fumbling on the stand, Tom even tried to take his statement out to read until the judge stopped him. “It is dangerous to act upon the uncorroborated evidence of children of tender years, even when sworn,” Steve’s lawyer said.

  Martin then did something before the Supreme Court justices that Donnelly never did before Judge Ferguson in 1959: he tried to disprove the prosecution’s case about what happened on the county road by taking a cold, hard mathematical look at their numbers. Donnelly had made a fatal flaw in 1959. He tried to attack the credibility of Philip Burns, but he never challenged the police and prosecution timings that determined Philip should have met Steven before he reached the entrance to the bush.

  Martin wanted the Supreme Court justices to understand that this prosecution theory collapsed if it could be shown that by the time Steve passed Richard and made it to the bush entrance, Philip was so close to the laneway he would have seen or bumped into Steven.

  Martin first gave the judges various scenarios assuming different speeds for Steve and Lynne’s bike ride and several possible spots where they met Richard on the road. By one calculation, Philip would be only thirty-seven seconds away, about 210 feet north of the lanewa
y when Steven and Lynne got there. “He would have a view of Steven Truscott as he turned down the trail,” he announced.

  In another scenario, assuming slower travel times and a meeting place closer to the school, Philip would have been almost five hundred feet beyond the laneway—south of the entrance to the bush—making his evidence about not seeing Steve irrelevant.

  “It is really doubtful whether Burns was observing people. He had no reason to note who passed him or who he passed,” Martin continued, making an obvious but vital point.

  “Your theory is that Burns in fact … did pass them?” asked Justice Cartwright.

  “Yes,” Martin said.

  “And that he didn’t notice them or forgot them?”

  “Yes, that is my submission.”

  Whether the justices accepted Martin’s mathematics remained to be seen, but at least the defence’s criticisms of the county road evidence got a fairer hearing than in 1959.

  Steven’s counsel then moved on to the medical testimony. “I do respectfully submit that looking at the medical evidence as a whole … is to raise the gravest doubts as to whether it is possible with any degree of certainty to place the time of death,” Martin began.

  He reminded the judges that even the Crown experts at the Supreme Court hearings were less rigid than Penistan about a 7:45 p.m. outside time limit for Lynne’s murder to have taken place. Simpson, for example, said death had very likely occurred within a period of about two hours. “I should just like to point out that that is not the way Dr. Penistan gave his evidence at the trial; he put the death within that precise period,” Martin said. The warm weather also hastened the onset and departure of rigor mortis, Martin argued. Simpson agreed the lack of greening on the body “tends to put the time of death later rather than earlier.”

  As for the blanching on Lynne’s skin, Martin reiterated that the defence experts testified it likely occurred within the first one or two hours of Lynne’s death, and not necessarily at the place where her body was found. He argued that Simpson’s explanation for the pattern on her skin was far-fetched: “The Crown has to rely on the simple coincidence of the blood having previously clotted, reliquifying and clotting again during the interval when the body was turned on its face,” Martin said.

  No Crown witness was able to point to any medical literature suggesting that sexual intercourse, rather than a skin irritation, could have caused the sores on Steve’s penis, Martin argued. Even the Crown’s star expert, Keith Simpson, called them perplexing. Martin admitted, however, that Steve kept his sores secret and that even upon discovery on the night of his arrest, he did not tell his father about his long-standing skin problems.

  Justice Wishart Spence found it unusual that a boy faced with a serious criminal charge would not overcome his embarrassment about such an incriminating sore. “What is more natural than the boy should tell his father?” he asked.

  “I agree, my lord; I think I must face up to it that the failure to disclose this at that time is unusual,” Martin replied.

  Spence pursued the point, noting—incorrectly—that Steven kept his secret until he talked to his lawyers “years and years later.”

  “Oh, I quite agree … that is undoubtedly an unusual thing,” Martin had to concede, “but it is not unusual to suppress such things.”

  It was a shame the Supreme Court accepted at face value Steve’s misinformed testimony about not telling anyone in 1959 that the sores pre-dated his arrest by several weeks. The Supreme Court judges seemed to forget—and Martin failed to point out—that the transcript from the original trial showed clearly Dr. Addison testified Steve informed him the sores had been around for four to five weeks.

  Finally, Martin went on to challenge the physical evidence. There was no evidence Steve wore the stained underwear the night Lynne disappeared, and in any event, any sperm released on Tuesday night would have vanished by the time the laboratory analysis began five days later. As for the footprint near Lynne’s body, there were three markedly different accounts. “Identifying Officer Corporal Erskine could not find any mark that he could attribute to anything. Flying Officer Glen Sage said he thought he saw what was a footprint pointing toward the body and Detective Sergeant Alsop said he thought he saw a footprint pointing away from the body,” Martin summarized.

  Moreover, according to laboratory analyst Elgin Brown, Steve’s shoes “had splits in the soles at two places, one near the toe and one near where the sole joined the heel. There is no suggestion of any mark being made on the ground that had been made by a shoe with a split in the sole.”

  Martin reminded the judges that blood was widely spread over Lynne’s undershirt, even though the only wound seeping blood was under her left shoulder. “I do not know how that blood could get so distributed from the one injury unless there was some sort of struggle going on or unless somebody carried her,” Martin suggested. “That being so, one would think the assailant would necessarily get some blood on him, especially the upper part of his body.” He noted there was no blood, hair or fibres from Lynne on Steve’s body and vice versa. The blood under her fingernails was consistent with scratching her assailant, but police found no comparable markings on Steven.

  Finally, the police photographs of what Steven could see from the bridge were “extremely distorted,” misleading the jurors into thinking the car was farther away than it really was, the defence counsel said.

  For all these reasons, Martin concluded, the evidence presented at the trial in 1959 did not support a conviction. “I respectfully submit that for the above reasons, the court should find that the verdict on all the evidence was unreasonable,” he said.

  “Mr. Martin, you did not deal with the application for parole signed by Truscott in which he said he had committed a terrible mistake,” Chief Justice Taschereau jumped in, before Martin had a chance to sit down.

  Another judge, Justice Joseph Fauteux, stepped into the breach: “What Truscott said … in his application to the parole board was not intended to be taken as an admission but was something he felt he had to say in order to be successful in his application?”

  “Exactly, my lord,” Martin said, grateful for the unexpected assistance from the bench. “Your Lordship has expressed my submission very succinctly.”

  “When did she die?” Justice Fauteux asked. “You may not want to answer the question. It may be an unfair question.”

  No, it is not an unfair question, Martin said, but the burden was on the prosecution to prove Lynne died before 7:45 p.m. “It was an interval of considerably less than forty-eight hours between the time she died and the autopsy,” he estimated.

  “That would make it possible for her to have died the day after,” Fauteux calculated.

  “Around midnight,” Martin agreed, noting his experts gave a range of thirty to thirty-six to forty hours prior to the autopsy. “She might have spent several hours in a car, captive. One does not know,” he added. “When one gets down to possibilities, the evidence favours a later time of death.”

  Martin argued that the spinning tire tracks found on the laneway near the county road, the pattern on Lynne’s left arm—which even Simpson agreed was consistent with a body resting on cloth or on a car seat—and the “remarkable arrangement of the clothing” in the bush all suggested Lynne was murdered elsewhere and carried into the bush. “These things are completely unknown, but I do submit to the court there is a rational explanation emerging from the evidence itself—not just on speculation or theory—which is consistent with the innocence of the accused,” he said.

  Up until this point, Martin had concentrated on trying to convince the judges that the old evidence at Steve’s original trial did not justify a conviction. In addition, Martin now argued, the fresh evidence presented before the Supreme Court—the tests showing Steven could have seen a car from the bridge, an alternative medical explanation for his sores and the new medical insights into time and place of death—gave even more weight to a dismissal of the guilty verdict. />
  What is more, Martin concluded, Justice Ferguson did a dreadful job of presenting the defence case fairly to the jury. He did not point out there was strong evidence the bike tracks along the trail were made long before Lynne’s death; he speculated it would have been hard for Steve’s friends to judge his appearance upon his return to the school “at night” when, in fact, there had been still an hour of daylight remaining; he consistently confused jurors by suggesting Steven had claimed to have seen licence plate numbers; he allowed certain child witnesses with a dubious understanding of the importance of an oath to be sworn; and, perhaps most grievously, he introduced a new theory of the crime at the closing stages of the trial.

  “It is obvious from the question asked by the foreman of the jury that the jury was giving serious consideration to the evidence of Logan and Douglas Oates that Steven and Lynne had crossed over the bridge together,” Martin reminded the judges. Justice Ferguson suggested that it made no difference who saw Steve because it was possible that Steve returned to the bush with Lynne even after taking her to the highway. “It did make a great deal of difference. If he did take her down to the highway, he is virtually excluded,” Martin insisted. “The theory propounded by the trial judge … removed a serious obstacle in the minds of the jury in arriving at a verdict of guilt.”

  After two and a half days, Arthur Martin finally completed his marathon presentation. “I thank you, my lords, for the very lengthy and patient hearing I have had,” he said, and sat down.

  It was Friday afternoon, January 27. Donald Scott had questioned the witnesses for the Crown, but William Bowman, the director of public prosecutions, would make the prosecution’s summary. Bowman would accomplish his task in just over a day.