by Julian Sher
“Yeah, pretty much.” Steve admits.
“I’m not knocking that—I understand that,” she says. “But it was not going to happen with our family—it’s my children, my husband, it’s my life—and he’s a big boy. He’s in his fifties, he’s not fourteen.”
“I don’t want to start anything—it only causes problems. There are people that can be hurt,” Steve told Marlene.
“It’s about time you looked after number one instead of everybody else,” she answered.
Steve sympathized with his wife’s frustration. But he had been burnt too often in the past, proclaiming his innocence to psychiatrists who would not listen, to a Supreme Court that rejected his pleas. “I got nowhere. Nobody would listen, nobody cared,” he says. “Up until that point, nobody gave a damn. The turning point was the fifth estate.”
Marlene convinced Steven the fifth estate would give a damn. But even as Marlene patiently nudged and prodded her husband, Steven wanted to get permission from his three grown children. “If I thought for a moment it would harm the kids, it would end,” he says.
“You don’t ask them, you tell them,” Marlene said to her husband. “You’ve asked too many people too much in your life what to do. For the first time in your life, tell family members what you want to do. You’re going to fight this thing and you’re going to win it.”
In the end, Marlene and Steve compromised. They met with their children, not to ask for approval to go forward, but to consult with them over the risks and benefits. To Steve’s relief, far from being nervous, his children were tremendously excited about the prospect of a renewed public battle.
“He’s getting older and we are getting old enough to realize how much of a problem this is,” Ryan says. “He really needs to have somebody help him so that he can go on and live the rest of his life knowing that somebody has admitted to being wrong in this case.”
“It’s always got to be there in the back of his mind at all times. Nobody’s ever proven him innocent.” Lesley says. “And I think for a sense of peace—just to put it to rest—I think he deserves it.”
As senior producer at the fifth estate, Susan Teskey was in charge of the day-to-day operations of the show. A veteran field producer with a reputation for being both scrappy and dogged, Teskey had put together the documentary that helped garner wide public sympathy for Guy Paul Morin’s innocence.
Teskey agreed with the Truscotts that there might be a chance some DNA traces were still available from the Lynne Harper crime scene. But to make the formal request for evidence and launch the long legal battle over DNA, the Truscotts were going to need a lawyer. Due to his success with DNA evidence in the Morin and Milgaard cases, James Lockyer was the logical choice.
Lockyer drove to Guelph to meet Steve and Marlene. In the cool of an autumn evening, James Lockyer asked Steve to step outside with him. The two men turned south to the end of Steve’s dead-end street and entered a park that ran along the Eramosa River. It was a time of assessment for both men. Steve was wary of lawyers who, however devoted to his case, never seemed to include him profoundly in their plans and deliberations. Lockyer, for his part, had to size up this potential new client.
“I laid it on pretty thick,” Lockyer recalls. “I told him I was very confident we could find DNA samples.” In fact, Lockyer had little idea what the chances were, but he needed to test Steve’s resolve. “I made it very clear that the perpetrator would have left behind his DNA,” he says, “and the fact that forty years had passed was neither here nor there.”
“If they’ve got DNA samples, I can guarantee you a result,” Lockyer told Steven. “And if it’s you, if you’re the one who killed Lynne Harper, you’re being suicidal to go ahead with this. Because I’ll prove it in no time—simplest thing in the world.”
“Let’s go for it,” Steve said without a moment’s hesitation. “I have nothing to hide—go for it.”
Steven decided to retain Lockyer as his lawyer and the hunt for DNA officially began in the fall of 1997. There was, at first, every reason to hope that if the evidence and exhibits were preserved, some of it might contain DNA from Lynne’s killer. The most likely source would be the bodily fluids taken from the girl’s vagina. There were also fingernail scrapings from Lynne containing “traces of blood,” possibly from her assailant. Some of the blood found on her clothing and on leaves and twigs near her body might have come from her attacker. Her underpants and other clothes might also hold clues.
Lockyer wrote to the Centre for Forensic Sciences—the successor to the attorney general’s laboratory that had done the tests in 1959—to see if they had specimens, including the microscopic slides prepared by Penistan, the cotton-tipped applicator used to collect fluids, and a bottle with seal number 2205 containing material from Lynne’s vagina.
“They’re looking. They might be somewhere or they might not,” an official with the Ontario solicitor general’s office told reporters. “Until they’ve run out of places to look, they’ll keep on trying.”
News of the DNA search leaked out in the Toronto Sun, and the sudden re-emergence of the Truscott case created a flurry of media interest.
“Talk of the Town Again—DNA twist has small town buzzing anew about Steven Truscott” was the headline for a London Free Press article about Clinton. Most residents interviewed seemed genuinely enthusiastic. “At the time I thought he was guilty,” said Anna VanderHeyden, a fifty-five-year-old florist. “Now I have my doubts. I hope we’ll finally know the truth.”
On the other hand, there were the usual naysayers. The Toronto Star contacted their veteran crime reporter Gwynn “Jocko” Thomas, who had always been on good terms with the OPP’s Harold Graham. “There’s no chance of this being a travesty of justice,” he said. “It was a very strong case of circumstantial evidence.”
At OPP headquarters in Orillia, D. I. Jim Wilson started a new file on October 27, 1997, and began keeping track of the media coverage on the Truscott affair. Wilson insisted it was normal procedure. “Any information that is received, you look at,” he said. Still, it was hard not to grasp the irony: the case that his former boss—Harold Graham, the head of the OPP—had cracked as a young homicide detective in 1959 had come back to haunt the force once again.
So intense was the media frenzy, lawyer James Lockyer had to issue a press release. “Mr. Truscott and his family appreciate the interest shown by the media, but now request that their anonymity be preserved and their privacy respected,” he urged, at least until the results of the hunt for DNA were known.
It did not take long to discover that the DNA trail was cold. Nothing remained from a forty-year-old case that, after all, had long been settled in the eyes of the law. The final tally on the evidence list was clear—next to all of the items appeared the words “Presumed Destroyed.”
There was some confusion, nevertheless, on exactly what happened to the evidence. “All exhibits in this case are now destroyed,” reported a September 1962 OPP memorandum. “The officers stayed until everything was consumed by fire.” But some medical evidence might have survived, because in February of 1968, Graham was writing to Keith Simpson, the British medical expert who testified for the Crown at the Supreme Court, stating that he was looking for microscopic slides from the Harper autopsy. “I have been unable to find them in Canada,” Graham said.
“We knew it was a 50-50 thing,” Marlene says. “It wasn’t a huge disappointment.”
Still, it was a crushing setback for the lawyers. DNA is the “magic bullet” in any legal appeal. It would have been the fastest, most conclusive way to prove whether or not Steven Truscott killed Lynne Harper. “That would have been the end of the case,” says Lockyer. “That was a simple task. It became a very complicated one.”
Now the fifth estate investigators would have to do a lot more digging to find the truth.
Through his lawyer, Steven filed a request with the Ontario government to obtain thousands of pages of documents from court transcripts, police no
tes and Crown records—most of them never before seen by any member of the public. In the 1960s, author Isabel LeBourdais and lawyer Arthur Martin had read the original trial transcripts and a couple of police witness statements, but they had no access to anything as vast as this treasure trove of secret files.
“When some of that stuff came in, I couldn’t believe it,” Steve says.
“Oh, it was so real—it all came at once,” Marlene recalls. “The boxes came on a Saturday. We were supposed to go to a wedding and I didn’t even want to go.” She remembers the excitement of capturing a snapshot of history.
“Oh my God—look at Harold Graham’s writing!” she exclaimed upon seeing one document.
For the first time, here were the many confusing police statements made by Jocelyne and Butch. Here were the witnesses the police and prosecutor had kept from the defence and the jurors. Here was the memorandum from Dr. Noble Sharpe criticizing Penistan’s narrow window for the time of death. Here was a handwritten police note about Jocelyne claiming she was looking for Lynne; another about a possible 9:00 p.m. time of death; yet another note concerning Lynne’s hitchhiking. Marlene discovered that most of the important witness statements given to the police were signed by the children themselves. Butch George’s and Steven’s were not.
The leads opened up many new avenues for investigation. Marlene devoured each document, committing most to memory. Like well-known activist Erin Brockovich, Marlene had the ability to instantly recall the most minute and arcane detail.
“It was all bottled up inside; now I can really get into it,” she confided in her friend Pat Corbit.
“She would jump up and cry, ‘Look what I found!’” Maureen Hatton, another good friend, recounts. “I don’t think a lawyer can even get close to the way she fine-tooth combs everything. I swear to God she must think about this case twenty-four hours a day.”
Marlene explains that everyone with blood ties to Steve—his parents, his brothers and sister, his own children—had no choice about getting involved in the case. They were born into the Truscott family. Marlene is the only family member who made a conscious decision.
“I chose to get involved with the campaign in 1966 and I chose to marry him,” she says. “I knew what I was getting into and I wanted it.”
For all her obsession with the case, Marlene created a protective barrier in her mind between the boy caught up in the whirlwind of 1959 and the man she married. Sometimes, she would be explaining to Steve a new piece of evidence she had discovered in the boxes, only to catch herself talking about him in the third person—“Steve did this” or “Steve did that.”
“Steve?” her husband would interrupt her. “That’s me.”
“I still see a boy on a bike that I never knew,” Marlene says. “There was this ten-year gap—I had heard about this young boy and then I got this man that I married, but there was something missing. I needed to make that separation. If I didn’t, it would be harder on me.”
Marlene’s hunt for clues also got the better of her as days of research turned into weeks, the weeks into months, the months stretching over a couple of years. “You live and breathe those boxes, Mom, but there’s other things going around that you’re missing,” Ryan warned her when his sister, Lesley, was pregnant. “She’s having a baby, she’s very excited, and you sort of put her on the back burner.”
“It was then that I realized I was putting too much into it,” Marlene admits. She cooled her efforts, if only slightly.
In general, though, the children were thrilled with the buzz around the case. Steve himself could sense the difference. “We were finally where Marlene wanted to be in the first place—we were finally talking about things,” Steve says. “It was exciting. After all these years, we were finally out.”
More excitement came in January 1998 when Susan Teskey brought a special visitor to the Truscott home—Guy Paul Morin. It was hard to tell who was more in awe—the young man whose recent victory in the courts made his name synonymous with bad justice, or the fifty-three-year-old who for decades had been a symbol to many Canadians of a troubled trial.
“He is a pioneer of the wrongfully convicted,” says Morin. “Hearing about him all those years, and then for me to even have the honour to meet him and see him—wow!—I was taken aback. He’s got strength about him in such a calm way. I think it’s what carried him through.”
The two “vets from the war of injustice,” as Morin put it, connected instantly. There seemed to exist a kind of emotional radar between two men who had spent years behind bars protesting their innocence. Over a lasagna dinner, they swapped stories about Kingston’s jail cells, prison life and the striking similarities in their cases.
The judge who presided over Morin’s second trial was James Donnelly, the son of Frank Donnelly, Steve’s first lawyer. The chief pathologist in Morin’s case had to admit he missed rather obvious injuries in his autopsy. And jurors in both trials seemed to be convinced of guilt in part because of the way the defendant behaved. One juror at Morin’s trial told the fifth estate he was disturbed by the fact that Morin “never once looked at us.”
“If I was innocent, I would have been hollering and screaming,” the juror said, eerily echoing the words of a juror in Steve’s trial four decades earlier.
“The parallels are uncanny,” concluded Morin. As he gripped Steven’s hand to say goodbye, Morin urged him to keep his wits about him.
“Always have confidence. You know yourself. You know you’re innocent,” he said. “Justice will prevail.” They were surprisingly optimistic words considering the legal history of the man who uttered them.
“The Guy Paul Morin case is not an aberration,” warned Judge Fred Kaufman, appointed by the province to investigate what went so disastrously wrong with Morin’s prosecution. “Science helped convict him. Science exonerated him,” he said. “One can expect that there are other innocent persons, swept up in the criminal process, for whom DNA results are unavailable.”
Steve knew he was one of those people who could not count on DNA evidence. One evening, Marlene and Steve were having another of their late-night porch chats.
“The fifth estate will get into this and they’ll find something,” Marlene assured her husband. “I think this is what you need.”
“I hope it happens in my lifetime,” Steve said, in an uncharacteristically emotional moment.
“I found that very sad,” Marlene remembers.
In the summer of 1998, the filming of the Truscott story hit an unexpected roadblock.
Trish Wood, the journalist assigned to the story, and James Lockyer, Steven’s lawyer, began a personal relationship. The CBC, like most media organizations, had very strict conflict-of-interest guidelines. It would hardly do for the journalist on such a controversial story to be involved with the protagonist’s lawyer.
CBC management decided that Wood would have to give up the story to another journalist. She initially opposed the idea of withdrawing from a story that had been close to her heart for so many years. The dispute led to other differences with fifth estate senior executives, and CBC management did not renew Wood’s contract. She eventually worked out a settlement with the corporation.
Only after a year-long hiatus did the CBC resume production on the documentary, this time with Linden MacIntyre as the host.
It was now the early summer of 1999, but it would be almost another year before the CBC would broadcast the finished program. Many people assume when they watch a TV documentary that the producers decide which pictures they need, then go out and film those sequences, get quotes from various people, and stick it all together more or less according to a pre-set plan.
The reality of investigative journalism is far more complex and frustrating. For every minute shown on television, a crew can film anywhere from thirty to sixty minutes. The completed Truscott documentary was about forty-seven minutes long, but the team had over forty-five hours of interviews, visuals and archives on tape. In addition, there we
re hundreds more hours of unrecorded interviews and research.
The fifth estate team tracked down and spoke to twenty-four child witnesses, three jurors, more than fifty people from the Clinton area and a dozen military and police officials. Pathologists, rape specialists and medical experts on stomach contents were consulted, as were lawyers and legal historians.
The team proceeded without any preconceived notions of Steven’s innocence or guilt—at times, for the sake of thoroughness, even presuming guilt and trying to prove the case for the prosecution. Only when holes could be punched in every element in that theory could a solid and balanced case for miscarriage be made. Accordingly, the CBC followed many leads, even if they seemed unfavourable to Steve’s cause. One such lead was the possibility that Philip Burns, the ten-year-old boy in 1959 so crucial to the prosecution case, had changed his story. The Crown convinced the jury, and later, the Supreme Court, that Philip did not spot Steven and Lynne on the county road because they must have gone into the bush. Forty years later, Philip was saying he might indeed have seen Steven and Lynne walking near the bush, a new story that had the potential to be much more damaging to Steven.
“I remembered seeing two people back at the corner of the woods pushing a green racing bike,” Burns told the CBC, “and … it jogged my memory that Steve had a green racing bike.” But when pushed, Burns admitted he could not make out the faces of the children “a good quarter of a mile” away. “Whether they were two boys, boy and a girl, two girls I have no idea,” he said.
If Burns did see someone, it likely was not Steve and Lynne. During the interview, Burns pointed to a map to indicate where he said he saw the two people: at the far northeast end of Lawson’s field where the tip of the bush approaches the river—nowhere near where the body was found or where the prosecution implied Steve dragged Lynne into the woods.
Burns also could not explain why, minutes after seeing these two children, he told Jocelyne and Butch that he had not seen Steve or Lynne. Furthermore, Burns had no explanation why just days later, under intense questioning from the police, he denied seeing Steve and Lynne near the bush—only to recall the vision later.