Until You Are Dead (updated)

by Julian Sher

  “Thank you, Steven Truscott, for having the courage” to come forward after all these years, wrote Edmonton Journal columnist Duart Farquharson. “Your case has troubled a lot of Canadians. It shook my faith in our criminal justice system; it still does.” It was, he said, “time for Truscott to get justice.”

  On Parliament Hill, some MPs seemed to agree. Peter MacKay, justice critic for the Progressive Conservatives and a former prosecutor, raised the affair twice in Question Period. “The Truscott case, as we know, has been a festering wound on the psyche of this nation, and casts a shadow over the entire criminal justice system,” he said. “Based on what could be the most egregious miscarriage of justice in Canadian history, will the minister agree that it is incumbent upon her department to conduct a full public inquiry into this situation?”

  Justice Minister Anne McLellan sidestepped the question of an open inquiry and instead limited her reply to a strictly legal matter. “If and when we do hear from Mr. Truscott or his lawyer, we will take any allegations or any submissions made very seriously,” she told the House on March 30, the day after the fifth estate broadcast.

  McLellan did not have to wait long to find out Steven’s plans. Any time after a convicted person—in or out of jail—has exhausted all other legal avenues, section 690 of the Criminal Code allows for a direct approach to the justice minister for a review. On May 16, six weeks after the fifth estate show, reporters packed into a press conference in Toronto. They were there to hear AIDWYC lawyers formally announce they were applying for a 690 review—and to get their first look at Steven Truscott in person. Steven appeared somewhat shell-shocked as flashbulbs clicked, television cameras whirred and journalists scrambled for position.

  Marlys Edwardh, one of the lawyers who worked with AIDWYC, opened by describing the Truscott affair as “a painful doubt that has stayed with the administration of justice over the decades.” She said AIDWYC would ask Ottawa to review the case with the “hope and expectation that his conviction will be overturned.”

  Philip Campbell, another AIDWYC lawyer, explained to the news media that in 1959, medical science thought it could narrow the time of death to a very small window based on the contents of the stomach of a deceased person. “If Lynne Harper died between 7:00 and 7:45, Steven Truscott killed her. The Crown was right. It’s the science that was wrong,” he said.

  “Judges, juries, lawyers, police officers—we all long for science to give us the exact answers to relieve the agony of uncertainty and confusion that surrounds so many murder cases. And science wants to oblige. And in 1959 it thought that it could oblige,” he said.

  Campbell recalled Crown prosecutor Glenn Hays’ claim to the jury that Penistan’s medical evidence tightened like a vise on Steven. The “vise that gripped Steven Truscott was a tissue of error, but nobody could see that at the time,” he said. “The vise has held him tight for forty-one years. This generation of scientists can try to correct the errors of the past generation. So can this generation of courts and lawyers and police officers and ministers of justice.”

  Finally, it was time for Steven to speak. He read briefly from a prepared statement. He thanked Isabel LeBourdais for her pioneering work in the 1960s and the fifth estate for its work in modern times. “It’s hard for me to comprehend the issue of capital punishment when there is a growing number of wrongfully convicted people in Canada,” Steve told reporters. “It’s horrible to think that these now-famous innocent people could have been put to death.… I have often wondered if I had been eighteen, I probably wouldn’t be here today.”

  What surprised many reporters was Steve’s lack of anger. Several times journalists pressed him: Your youth was stolen, you were taken away from your family, how could you not be bitter?

  “I don’t think you can be bitter and raise a family,” he said, pointing to Ryan and Marlene, who were sitting in the back of the room. “I’ve moved on, I have a pretty good life. I’m not really wanting for anything except to have my name cleared.”

  Ryan smiled, prouder than ever of his father, now a hero not just in his eyes but also in the eyes of many Canadians.

  Also present at the press conference was Rubin “Hurricane” Carter, the executive director of AIDWYC. Found guilty in two separate trials for a triple slaying at a bar in Patterson, New Jersey, Carter spent nineteen years in jail before clearing his name. A Bob Dylan song and a Hollywood movie starring Denzel Washington made the story famous. Disenchanted with the United States, Carter had made Toronto his home, where he became active in the movement to help other wrongfully convicted prisoners.

  Shortly before the press conference began, Carter had taken Steve for a coffee to calm his nerves. As with Guy Paul Morin, Steve hit it off immediately with the boisterous and talkative Hurricane. Carter, for his part, remembers a “soft, warm person” sipping coffee across the table from him.

  “We talked about surviving,” recounts Carter. “And in order to survive, you have to stop being a victim.” Carter told Steven he was impressed by his “courage to re-open old wounds” by stepping into the public spotlight. “He’s doing it for the same reason I did it,” Carter explains. “I refuse to be condemned by history. ‘Talk to me, listen to me’ is what we’re saying.”

  “Hang in there,” Hurricane told Steve as they finished their thirty-minute chat. “Believe in yourself.”

  Steve has reason to believe that maybe this time he will win. His legal arsenal, drawing on talent from three different Toronto law firms, is impressive. His AIDWYC lawyers have been associated with all the major victories against wrongful convictions in Canada. Marlys Edwardh had worked on the Donald Marshall case and with Guy Paul Morin. Philip Campbell helped win a section 690 for Clayton Johnson. James Lockyer had secured DNA acquittals for Morin and Milgaard.

  To help them research and coordinate the massive Truscott file, they recruited Jenny Friedland, an articling student at the firm of Pinkofsky Lockyer. Her father, a law professor, had done research for Arthur Martin in preparation for the Supreme Court case. “I heard about Steve’s case as a child,” Jenny Friedland says. “I never thought I’d get a chance to work on it thirty years later.” She began spending hours at the archives of the Ontario government and the Supreme Court, combing through the documents on Steve’s case, looking for more clues.

  For a legal undertaking of such breathtaking proportions, the work of Steve’s lawyers has the outward appearance of confusion. In a cluttered conference room in a nondescript downtown Toronto office building, documents and boxes lie strewn across a large table and in corners on the floor: a police file here, a witness statement there, a trial transcript buried somewhere else. Lockyer writes his drafts in longhand on yellow legal notepads. He may be on the cutting edge of defence work, but he steadfastly refuses to join the computer age, and does not even have a personal e-mail address. But the apparent disorder and lack of modernity are deceiving—Lockyer is known for his sharp legal mind and powerful eloquence.

  Just a few blocks away, in the offices of Sack Goldblatt Mitchell, Philip Campbell plows through his set of boxes of documents, dictating his thoughts into a tape recorder for transcription later. Campbell, a Maritimer and son of a preacher, sports black-rimmed glasses, a beard, blue jeans and a loose-fitting shirt. Beneath his casualness lies a ferocious attention to detail and a keen sense of the law.

  “You put it all together and you say to yourself, ‘The jury did not get anything like the full story,’” concludes James Lockyer. “If the jury did not hear anything like the full story, there goes the conviction. It has to be quashed. The problem is that it doesn’t prove he’s innocent. We believe he’s innocent, but unfortunately, with no DNA it is very hard to establish it.”

  In the cases of Canada’s famous reversals of wrongful convictions—Marshall, Morin and Milgaard—defence lawyers had DNA, the real killer or both. With Steve’s case they have neither. Steve lost not only in front of a jury in 1959, but also at the Ontario Court of Appeal and the Supreme
Court in 1960 and then at the full Supreme Court in 1967. In all, fourteen out of fifteen judges who heard his case sided against him.

  But far from seeing the legal cards stacked against him, Lockyer sees Steven’s case in a much more optimistic light than his previous battles for frequently unknown and unloved clients. “We’re starting from a very good position,” he explains. “The public knows all about the case and the majority think he’s innocent. That’s a stronger position than I’ve ever started with.”

  “We as lawyers may criticize the justice system, we may question it,” Philip Campbell says, “but in the end we have to have some faith that it works—that it is capable of distinguishing the guilty from the innocent.”

  The odds of anyone winning a section 690 review are not good.

  About fifty to seventy people file requests every year. AIDWYC estimates only one per cent of the applications lead to the overturning of a conviction. Department of justice statistics indicate between two and three per cent of the total applications are approved for review, but the department insists many of those requests are not complete enough for the minister to even consider. By April of 2001, there were 105 applications in the system; only one case made it to a final decision in 2001 and it was rejected.

  Critics of the process say that applicants face “almost impossible hurdles,” as AIDWYC argued in a lengthy brief to the government about the problems with the review system. Appeals can be costly—in effect, lawyers have to re-investigate and re-argue the entire trial. Access to public funding in many provinces is limited. Delays can be extreme—one case took eight years.

  Lawyers for the applicant and even government officials reviewing a case have no right to subpoena records or witnesses, seriously hampering an investigation. The reviews “are conducted largely in secret,” AIDWYC states. “The applicant is rarely aware of the progress and is not invited to participate in interviews of witnesses.” The minister is not even obliged to give a reason for turning down an application.

  A successful section 690 application, according to guidelines set out by the government in 1994, must be based on “new matters of significance” that either were not considered by the court or that arose after appeals—much like the information revealed in this book that was hidden from the jurors and judges. At the same time, the applicant “need not convince the minister of innocence,” or even prove “conclusively that a miscarriage of justice has actually occurred.” Rather, all that is needed is a demonstration that “a miscarriage of justice likely occurred.”

  Steven Truscott’s case certainly appears to meet those standards. Dr. Penistan’s pivotal estimate of the time of death was scientifically unsound. Worse still, there is no evidence he even came up with that time of death by himself on the night of the autopsy. The prosecution got Lynne’s parents to tell the jurors their daughter did not hitchhike, but they told police the opposite the night she disappeared. The jurors never heard that the Townsends at one point told police they saw a young girl hitchhiking on Tuesday night, nor did they hear that Cpl. Arlene Strauman was harassed by men in a 1959 Chevrolet thirty minutes before Steve says a similar car picked up Lynne at the highway. The prosecution argued Steven could not see a car from the bridge—something tests presented to the Supreme Court proved was possible. The prosecution argued Gord Logan could not have seen Steve at the bridge, but police tests in 1966 showed he could. The prosecution said Dougie Oates was not at the bridge past 7:00 p.m. but Karen Daum, the witness they kept hidden, proved he was.

  How, given all that was kept from the jury, could a miscarriage of justice not have occurred?

  In many ways, Steve has already won, at least in the court of public opinion. Coming out into the open on national television—and seeing the widespread support he has among Canadians—has been a vindication for the man who kept his silence all those years.

  Marlene, for her part, is hungrier to go beyond the moral victory they have won and secure a landmark legal one with a successful section 690 application. For Marlene, the reason to hope Steven’s case gets a full review is accountability.

  She draws an important distinction between the tragedies that befell the Harper family and the Truscotts. “It was a far more awful thing that happened to Lynne Harper because they don’t have Lynne any more; Steve’s family has him,” Marlene says. “But you have a sick person who commits a crime like that—[people like that are] out there and we do not have any control over them. But we should have some sort of control over what happened to Steve,” she continues. “The people that were in charge of investigations that go wrong, they’re supposed to be trusted people that are employed by us. But we don’t have control over them either. Who was out there controlling the police for what they were doing? Nobody.”

  Steve also wants the police to be held accountable. But, given his past defeats on the legal battlefield, he is cautious about his chances of victory. “I’ve never really had that great of a rapport with the justice system,” he says. “I’ve made my life, no thanks to them. They did nothing to contribute to my life; Marlene and I made that,” Steve says. “So as far as them coming out and saying ‘We believe you’re innocent,’—I don’t care what they believe. I know I’m innocent. Nothing anybody is ever going to say or do is going to erase that. So for me the one thing left is for them to say, ‘We were wrong.’” What he needs—and wants—is for the authorities to admit they made a mistake.

  “There was no test that I wasn’t willing to go through. I applied for DNA; it sure wasn’t because I thought I was guilty. I did truth serum tests in the penitentiary, LSD tests. I went through all that,” he says, a tinge of frustration rising in his voice. “Nothing came out to indicate that I was guilty. And it’s always me having to prove that I didn’t do it.

  “What they did was wrong. And that’s all I want them to do: say they were wrong. I’m not asking for the world. Go over all the information. Investigate it. Let the people know all the evidence, and let them judge for themselves, not just what the police want you to hear, but all of it. I’m not afraid of that. Why are they?”

  43

  LESSONS LEARNED

  More than forty years after it began, the Steven Truscott story continues to leave its mark on Canada. Those most deeply affected were the children of Clinton—scarred by the trauma of the murder of one schoolmate and the arrest of another. “All of our lives changed abruptly,” says Michael Burns. “Your best friend goes to jail, is sentenced to hang for a crime you don’t think he committed. Your whole opinion of police, the justice system, takes quite a shock.”

  Douglas Oates, the turtle hunter who stood his ground against the unrelenting assault of prosecutor Glenn Hays, works in the air traffic control centre in Edmonton. But he too cannot shake the memories of a guilty verdict he saw as a travesty. “I carried that around all my life,” he says. “I really don’t trust the judicial system. I certainly wouldn’t want to bet my life on it.”

  Steve’s childhood friend, Karen Allen—who told the OPP Steve kissed her at a party and then was grilled so intensely she cried—lost touch with Steve after he was jailed. But Karen never left the Clinton area and the guilt never left her. “To this day I cannot drive down that [county] road without remembering and feeling unsettled,” she wrote in an e-mail to the fifth estate after the broadcast of Steve’s story. “Over the years, I have often wondered if there wasn’t something I could have done besides defending his innocence when the conversation came up.

  “I hope Steven will realize that many, many people in this area always believed in his innocence, and for many of us, he was never forgotten,” she concluded. “The fact that we did nothing, even though we didn’t really know what we could do, is something that we have to live with.”

  Karen got in touch with Steve and they renewed their friendship. Somehow, that bond seems to have given Karen a peace of mind she has not felt for years.

  Butch George settled in London, Ontario, where he became a painter. Like his forme
r friend Steven, Butch has aged well. When he answers a knock at his door, he appears fit and relaxed, his thick hair flecked with more paint than grey, his eyes deep and his face handsome. But he adamantly insists he does not want to talk about anything that happened in 1959.

  Jocelyne Gaudet became a nurse. When she did her training in Quebec, she made three-month rotations in various hospital wards. In the mid-1960s, while doing psychiatric training at St. Mary’s in Montreal, she roomed with another nurse, Sandra Stolzmann. “She was trying to go by another name—the name she was using was Kim—but everyone knew she was Jocelyne Gaudet,” says Stolzmann.

  According to Stolzmann, Gaudet’s Clinton past came back to haunt her in 1966. Isabel LeBourdais’ book put the trial back on the front pages and eventually in front of the highest court in the land. Jocelyne was never called as a witness, but apparently feared she might be.

  “She was hysterical because there was a Supreme Court hearing coming up, and she told us that she had to testify,” Stolzmann says. “She kept moaning to everyone that she knew Steven didn’t do it.”

  Whatever secrets Jocelyne might have been hiding she kept to herself. Jocelyne to this day still goes under the name of “Kim” and lives in a small town in Alberta.

  Steve also continued to influence lives, even of people with whom he spent the darkest years of his life. One day in 1998 he heard from John, the inmate at Collins Bay who worked with Steve on the prison farm. Seriously ill in hospital, with no friends or family by his side, John desperately wanted to speak to the one friend he still cherished—Steven. Before long, the two former inmates were talking on the phone.

  “I’m in tears,” John said. The two ex-inmates chatted briefly, then said their goodbyes. Steve has not heard from his prison pal since.