Until You Are Dead (updated)

by Julian Sher

  Dan and Doris heard the news on their portable radio. Dan’s eyes filled with tears. Doris was stunned.

  “Maybe we got it wrong,” he said, gripping his wife’s hand so hard she winced.

  “God, how much evidence do they need?” Doris said, in an anguished and angry cry.

  By a majority of eight to one, the highest court in the land had ruled against Steven Truscott. Eight judges found no reason—either on the basis of the evidence presented in 1959, legal principles or new testimony—to set aside the original verdict. Justice Emmett Hall was the only judge to dissent.

  Weeping, Doris Truscott went to the phone. “I must tell him. Do you think they’ll let me speak to him?”

  Joliffe assured her it had been arranged. “Yes, dial direct,” he said. At the other end of the line, her son took the phone.

  “Hello, son. Have you heard the news?”

  “Yes. Eight to one.”

  “Keep busy, son, we’re not quitting,” Doris said. “We’ll be down to see you soon.”

  She passed the phone to LeBourdais. “Remember that promise I made to you?” she asked, referring to her pledge never to stop until she helped clear Steve’s name. “I intend to keep it.”

  Steve asked to speak to his father.

  “No. No. He can’t come to the phone,” Doris explained. “He’s taking it hard.” Dan was so shaken by the verdict he had left the room.

  Steve’s younger brother, Bill, seventeen at the time, remembers the devastating impact the verdict had on his parents. “It was almost like they got run over by a car—like, that was kind of the end of it and nothing had changed.”

  When Dan returned to the living room, he asked his wife, “Did you call him? How is he taking it?”

  “Fine. He’s taking it well,” Doris assured him. “He took it like a man. It was so hard … so hard.”

  In the warden’s office at Collins Bay, there was a deathly silence. “What do you tell a guy at a time like that?” Malcolm Stienburg later recalled. “I would love to have turned from the phone and said ‘Steve, you’re free,’ but …” His voice trailed off.

  By all accounts, Steve took the defeat with the stoic reserve that was his emotional trademark. “There was little change in his face,” said Warden Ross Duff. “[He] asked to be taken back to the shop and we took him back to work.”

  Steve walked back across the prison yard, accompanied by the chaplain who had become his friend and mentor. “He didn’t cry—but it didn’t mean there weren’t tears in his eyes,” Stienburg says. “He eyes were filled with water—but he had control so he didn’t break down.”

  Showing little emotion, Steve softly uttered a single phrase to Stienburg:

  “The Supreme Court made a mistake.”

  “After all the evidence given on the reference, the issues are still the same as those which faced the jury—who raped and killed this girl?”

  The eight Supreme Court judges posed the question succinctly in their majority decision. And in their minds, it was clear the answer was Steven Murray Truscott. On all the important issues, they sided with the Crown’s interpretation of the evidence and rejected most of Arthur Martin’s pleas for a fresh look at the case. But it was also apparent that the judges had to ignore some glaring contradictions to justify their stand.

  The eight justices devoted two thirds of their decision to the new medical evidence presented before them. They accepted “there was diversity of opinion” over the key issue of stomach contents, but decided to simply split the difference. Seven experts testified on the issue and, according to the judges’ mathematics, the Crown won out four to three.

  It was bad math and bad medicine. The problem was not whether Lynne could have digested her meal in two hours, but whether her time of death could be determined within minutes based on her stomach contents. By that standard, Sharpe clearly did not support the Crown theory. He explicitly told the court that the time of death based on these examinations was “an inspired or educated guess … only a probability or a hunch.”

  On other medical issues in contention, the judges appeared to throw up their hands and side with Penistan, who had an “overwhelming advantage” over the experts who were debating photographs that were seven years old. The defence experts saw evidence Lynne was killed elsewhere because of patterns of blanching on her skin, but Penistan made no note of this. They also accepted Dr. Penistan’s evidence that rigor mortis had almost passed off because, unlike the Supreme Court witnesses, he was present at the autopsy. The justices did not know that Penistan had since revised his views and now concluded—much like the defence witnesses—that rigor mortis was “compatible also with death some hours later” than Tuesday evening.

  “The effect of the sum total of the testimony of the expert witnesses is, in our opinion, to add strength to the opinion expressed by Dr. Penistan at the trial that the murdered girl was dead by 7:50 p.m.” But ironically Dr. Penistan himself was now changing his opinion, writing in words that could have come out of the mouths of the defence experts: “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).”

  When faced with new medical evidence that supported Steve’s claims of innocence, the Supreme Court justices refashioned it to fit a guilty scenario. They acknowledged, based on the testimony of the dermatologists, that a pre-existing skin irritation could have caused the penis sores. But the judges took refuge in the Crown’s theory that even if that were true, intercourse could have aggravated the sores.

  On the other crucial debate before the court—the evidence of who was where at what time on the county road—the judges also accepted as fact the theories of the Crown from 1959 and 1966. Yet every one of their affirmations was debatable—at least to the level of reasonable doubt. They said Steve’s departure was “fixed with reasonable certainty” by the evidence of the Brownie leaders at the school at no later than 7:15 p.m. Yet the one woman with a watch said she was “not positive about my time” while the other said she “didn’t have any way of telling the time.” And neither actually saw Steve and Lynne leave the school grounds.

  “Then, on his own admission, Truscott met Richard Gellatly between the schoolyard and Lawson’s bush,” the judges wrote. “He did not meet Philip Burns, as he should have done if he had continued on his way to the highway,” they said. “He was not seen by Jocelyne Gaudet and Arnold George as he would have been if he continued on to the highway and returned alone from the intersection to the bridge,” they concluded.

  For the judges’ timing to work, they had to make mutually contradictory statements. They insisted that Philip and Richard “left the bridge at about the same time … between 7:00 and 7:15 p.m.”—except that one boy had to leave at the top of that fifteen-minute window and the other at the bottom for each of them to arrive home when witnesses said they did.

  The majority decision admitted there was “obviously something very wrong with Jocelyne Gaudet’s times.” Yet they seemed to accept the rest of her story uncritically. The judges reported “she and George were both looking for Steven Truscott and they had a brief conversation” at the bush, even though Butch told police Jocelyne was looking for Lynne, not Steven.

  Even when the judges were forced to admit a point in Steve’s favour, they found a way to spin it against the defence. The eight justices conceded that new tests from the private investigators showed it was possible to pick out a coloured licence plate from the bridge. “The evidence upon this topic would seem to weaken the Crown’s submission to the jury … that Truscott could not have seen from the bridge what he alleged he had seen,” they wrote. But they argued the Crown used this “to attack the credibility of Truscott” and since “parts of his testimony … simply cannot be believed,” the new evidence about the car sighting “becomes of much less importance.” Stripped of legal niceties, the judges were saying, in effect, that they believed Steve was a liar, so the fact
that they now knew he was not lying about being able to see a car did not really matter that much.

  But it did matter. For most of the other evidence at the trial, jurors had to choose between warring witnesses who gave different stories or interpretations. But for the debate over what Steve could see from the bridge, the Crown used police photographs as objective, incontrovertible evidence—evidence the Supreme Court was now dismissing as dubious.

  In the end, the Supreme Court judges largely blamed Steven for his own fate. They found his story about not telling his father about having sores on his penis weeks before his arrest “impossible to accept.” They cited proven encounters with friends on June 9 and conversations which Steve denied in his testimony before the Supreme Court. In the most damning sentence of their decision, they wrote, “There were many incredibilities inherent in the evidence given by Truscott before us and we do not believe his testimony.”

  The eight Supreme Court justices concluded the original verdict could not be set aside because it was unreasonable or unsupported by the evidence and that the verdict could not be overturned on any question of law “or on the ground that there was a miscarriage of justice.”*

  In his dissenting opinion, Justice Emmett Hall took a starkly different approach. Rather than concentrate on the minutiae of some of the testimony, he stood back and took a wider view of what he saw as a fundamentally flawed and ultimately unjust trial. “Having considered the case fully, I believe that the conviction should be quashed and a new trial directed. I take the view that the trial was not conducted according to law. Even the guiltiest criminal must be tried according to law,” the jurist wrote.

  “That does not mean that I consider Truscott guilty or innocent—that was for a jury to decide,” Hall stressed. Still, he made it clear he did not think the Crown had met the standard of proof. “The evidence failed to establish that her death occurred prior to 7:45 p.m. on June 9. If she was murdered later than this time, Truscott could not be the guilty person. It is as simple as that.”

  For Hall, the trial went off the rails almost from the start. The most serious problem arose when Jocelyne told the Crown—and repeated to the judge—that Steve insisted she not tell anybody about their secret date. “This was when the damage was done. These two last answers were wholly inadmissible,” Hall insisted. The evidence had no value in proving Truscott murdered Lynne, and the judge should have rejected it.

  Hall pointed out that Justice Ferguson seriously misled the jurors by repeatedly saying Steven had claimed to see numbers of licence plates from the bridge. He noted that the Supreme Court had the advantage of new evidence that showed the unreliability of photographs and the fact that the colour of a plate could be seen from the bridge. If jurors had this information in 1959 he concluded, “the jury could reasonably have taken an entirely different view of Truscott’s story and of his credibility.”

  Hall chastised Ferguson for allowing the Crown to introduce dubious or irrelevant evidence. Hall said the photographs of the dry earth in the laneway and the testimony from the meteorologist completely ruled out the bicycle tire marks as evidence implicating Steve, and the judge should have excluded them. The judge let prosecutor Hays get away with the “fanciful theory” that Steven had the cunning to plant Lynne’s missing locket on the barbed wire fence to mislead the police “without one iota of evidence.” The Crown also exploited Steve’s claim that while riding on the county road, he saw a car with the licence plate 981-666. The Crown paraded before the jurors several car owners with plates closely matching the numbers to show Steven had “a guilty state of mind.” Hall said the judge only made matters worse by telling the jurors Steven might have fabricated the evidence to better hide his crime. In fact, Hall insisted, Steve only told police he saw the car somewhere along the road and never offered it as proof that he had taken Lynne all the way to highway. Therefore, it was irrelevant and the judge should have ruled the entire subject inadmissible.

  Ferguson let Dr. Brooks get away with his claim that the rape was the work of “inexpert penetration,” Hall said. “He was testifying as an expert as to a matter which was not in his special knowledge and the evidence was prejudicial to the prisoner.” Hall objected to the judge’s instruction to the jurors that the sperm on the underpants seized from Steven in jail were “consistent with an attack on this girl.” Hall said that without the slightest proof Steve wore those underpants on the evening of June 9, these remarks were “prejudicial in the extreme, based as they were on something that was not in evidence at all. Those underpants should never have been marked as an exhibit or shown to the jury.”

  Commenting on Steve’s demeanour during the trial, Ferguson had asked the jurors: “You ask yourselves the reason if this boy is guilty, why has he shown such calmness and apathy.” Hall said the description “was purely gratuitous … highly damaging to the accused.” Even more outrageous in Hall’s mind was Justice Ferguson’s last-minute introduction of a bizarre new theory. The majority of Supreme Court judges simply dismissed this gaffe as “unnecessary,” but Hall was much more scathing. Ferguson’s new theory “came wholly out of thin air,” but it eliminated “the most vital issue in Truscott’s case.”

  Several times in their decision, the other Supreme Court justices cited the fact that since Steve’s lawyer did not object to certain dubious evidence, it supported their argument that there had been no damage or injustice. Hall took strong exception. “The consequences of defence counsel’s failure to object at the trial do not fall upon counsel, but upon the client, in this case a 14½-year-old boy on trial for his life,” Hall said. “I appreciate that after nearly eight years many difficulties will be had if a new trial is held … but these difficulties are relatively insignificant when compared to Truscott’s fundamental right to be tried according to law.”

  Hall’s dissent was powerful—and not just because it highlighted specific faults in the trial. He also challenged the entire approach his majority brethren took. They were splitting hairs to see if the new evidence could buttress the original guilty verdict—in Hall’s words, they “attempted to direct a massive and detailed structure of evidence and argument to confirm a verdict that has no lawful foundation upon which to rest.” But Hall argued the very way that verdict was reached was corrupted and twisted by bad law and bad evidence. Crown prosecutor Glenn Hays, Hall said, pursued a “planned course of action that included the subtle perverting of the jury to the idea that Truscott was sex-hungry that Tuesday evening and determined to have a girl in Lawson’s bush to satisfy his desire, if not Jocelyne, then Lynne.” Nothing that happened before the Supreme Court “can give validity to an invalid trial,” Hall said forcefully. “A bad trial remains a bad trial. The only remedy for a bad trial is a new trial.”

  Hall’s closing words went down in legal history as one of the finest pleas for justice to prevail in the most difficult of circumstances. “It was inevitable that this horrible crime would arouse the indignation of the whole community. It was inevitable that suspicion should follow on Truscott, the last person known to have been seen with Lynne in the general vicinity of the place where her body was found,” he wrote. “In cases like the present one, when passions are aroused and the court is dealing with a crime which cries out for vengeance, then comes the time of testing. It is especially at such a time that the judicial machinery must function objectively, devoid of inflammatory appeals, with the scales of justice held in balance.”

  The power and eloquence of Emmett Hall’s call for justice was quickly lost in the bedlam of the moment. It was a knockout blow—eight to one—and that was all the country needed to know. When Justice Cartwright finished reading the verdict, the reporters dashed to the telephones in a nearby lounge. One of the judges smiled at the unseemly behaviour of the scribes. Arthur Martin, his efforts defeated, “appeared glum and shaken,” according to news reports.

  “‘Do Not Believe His Testimony,’ Court Rejects Truscott Appeal,” ran the headline in the London Free Press. Many
papers carried a picture of the Truscotts, their lips tightly drawn, their eyes heavy with rejection. “I’m not going to quit, by God!” Dan exclaimed. “I’m out of the air force now. I’ll have lots of time. I will go clean across the country getting signatures if I have to.”

  Steve eventually made his way to the radio room after hearing about his defeat. The warden sent some guards over to check on him. “I remember a couple of them coming over and asking if everything was okay,” Steve says. “They showed a genuine concern.”

  Stienburg kept watch as well. “He was quieter that day. He was down but I am not sure he was down for himself. He was down because it was a real heartbreak for his parents,” the chaplain says. “The system had done the worst to him but he saw the system doing the worst toward his parents—it was just a cold, heartless system and this was just more proof for him.”

  “They’ve already sentenced me to hang, they’ve thrown me in jail, they keep throwing psychiatrists at me,” Steve says he thought at the time. “What more are they going to do to me? But they can still hurt my family.”

  The next day, Steve’s mother drove three hours to see her son, accompanied by a reporter. She rapped twice on the knocker of the heavy steel door outside Collins Bay. A guard answered and let her in. When she emerged an hour and ten minutes later, she told the newsman that indeed her son was understandably upset—not for himself, but for his parents. “He felt his father and I were going to be so disappointed he wasn’t coming home,” she said. “He’s strong and courageous. Steven needed to know we’re standing by him.”

  It was the latest step in the delicate emotional tango Steve and his mother had been dancing since the catastrophe of his arrest, each of them putting up walls to protect the other. “You put up a barrier: I am not going to let my folks feel bad by seeing that it’s really getting to me, and my mom was the same way,” Steve says. “These people are not going to get to me. You break down—they’ve won. They’ve accomplished what they set out to do and there’s no way you’re going to let them get the best of you.”