Until You Are Dead (updated)

by Julian Sher

  Dr. Pollanen’s conclusions were so unfavourable to the prosecution he was called as the first witness not by the Crown but by Truscott’s defence team. Pollanen had made a name for himself in the world of pathology exhuming bodies in East Timor, examining skeletal remains in Cambodia, and studying torture victims in Kazakhstan. He had also written and lectured extensively about the “pitfalls of pathology” as he called them, to “make sure these pitfalls don’t enter the justice system.”

  Sounding like a character from TV’s CSI, he said pathologists had to take an “evidence-based approach” that looked at the global picture and not just one piece of the puzzle. Narrowing a time of death based mainly on stomach contents is “fraught with difficulty,” Dr. Pollanen testified, because digestion was more a process than an event that could be pinned down to specific moment. But even if the state of her digestive system suggested she could have been killed sometime Tuesday evening, Pollanen explained, one had to look at the “real world implications” of that conclusion.

  And in the real world, if Lynne had died between 7:00 and 7:45 p.m. on Tuesday, June 9, as Dr. Penistan had insisted, that meant her body had been lying for two days under a blazing June sun before it was found. But if that were true, one would have expected her body to be in a more advanced state of decomposition, Dr. Pollanen explained. Yet putrefaction, which would normally set in quickly in the hot and humid conditions of Clinton at the time, was “nil” even according to Penistan’s own findings. Lynne’s remains showed “remarkably little” decomposition and there was no indication her heart muscle or brain had started to break down, Pollanen said.

  Taped to the wall of the courtroom next to the witness were pictures of slides taken from the autopsy samples of 1959 showing the state of autolysis—the process by which injured or dying cells self-destruct—for the Lynne Harper’s liver and kidney. “I was quite surprised to find the liver so well preserved,” Dr. Pollanen said. “The liver should not be in such pristine condition” for a body that supposedly spent two days exposed to summer’s heat, he said.

  For Pollanen, the conclusion was inescapable. Dr. Penistan’s estimate was far too precise and too dependent on unreliable stomach contents. If the state of her digestion indicated she may have been murdered on the evening of June 9, the other medical evidence pointed to a much later period. “The time of death window must be broadly inclusive, to encompass June 9 and June 10,” Pollanen told a packed courtroom.

  It was a stunning appraisal. Back in 1959, they were arguing over minutes—for if Lynne Harper had died any time after 8 p.m., everyone agreed Steven was innocent. Now they were talking of days. The top coroner in the province was saying Harper could just have easily been killed on the Wednesday as on the Tuesday evening when she was last seen with Steven.

  There were more pathological time bombs to come that first day in court. As part of his questioning of Dr. Pollanen, defence lawyer James Lockyer revealed that new documents uncovered in the government’s archives in 2005 included two earlier, partly hand-written versions of Dr. Penistan’s autopsy report. In the first, he wrote that Lynne’s time of death was within forty hours of her body being discovered—which put her demise at around 12:15 a.m. on Wednesday. In a second version, he revised that estimate downward to between thirty and thirty-six hours, which meant she was killed between 4:15 a.m. and 10:45 a.m., early Wednesday.

  Needless to say, neither of these versions ever made it into court in 1959 or when the Supreme Court re-examined Penistan’s conclusions in 1966.

  Dr. Penistan’s conclusions—so central to Truscott’s conviction—took more of a beating the second day from another expert. Dr. Nicholas Diamand, a University of Toronto professor with forty-five years experience as a specialist in the “disorders of the gut,” dismissed Penistan’s analysis of stomach contents as an “entirely useless” way to estimate the time of death. Today few doctors would categorically rule that the stomach empties within two hours, he said. It usually takes a person three to four hours to digest a meal, but a number of factors—ranging from the person’s age to the type of meal—can slow down or speed up the process.

  Cognizant that any pathologist can be made to look bad after almost fifty years of medical progress, Marlys Edwardh wanted the court to know if Penistan’s pinpoint time of death was acceptable, given the extent of medical knowledge back in 1959. So she asked Diamand: “Was it tenable back then based on what he knew?”

  “No,” came the quick response, “There was enough evidence at that time that you could not limit it to that time period.”

  “Looking back with today’s knowledge it is completely untenable?” the lawyer pushed.

  “Yes,” said the doctor.

  One of the court of appeal judges, Justice David Doherty, asked Diamand what a reasonable estimate of Lynne’s time of death would be considering she ate her last supper at about 5:45 p.m.

  In the five- or six-hour range “or beyond,” said Dr. Diamand, again putting it well after the period she was with Steven.

  This was not good news for the Crown, desperately trying to argue—in 2006 as it did in 1959—that Steven Truscott was unquestionably guilty. The original prosecutor, Glenn Hays, had famously told the jurors that Penistan’s precise determination of the time of death narrowed “like a vise on Steven Truscott and no one else.” Now that vise was cracking open, by hours if not days.

  To try to salvage the credibility of Penistan’s testimony, the Crown brought in Dr. Werner Spitz, an American pathologist with decades of experience who had worked with the congressional committee that reviewed the autopsy of U.S. President John F. Kennedy. “When I look upon the work of Dr. Penistan, I’m in awe of him,” Spitz told the five appeal court judges. “He was way ahead of his time.” He praised Penistan for collecting insects near the body—a rare practice at the time—and for other swabs and measurements he made. In that context, he said, Penistan’s estimate of a time of death between 7:00 and 7:45 p.m. on June 9 seemed justified and accurate.

  But under a withering cross-examination by Phil Campbell, Dr. Spitz conceded he had not seen the two other autopsy reports by Penistan, where he variously put time of death approximately at 12:15 a.m. or as late as 10:45 a.m on June 10. Nor had he seen Penistan’s “agonizing reappraisal” in which he questioned his own narrow time of death conclusions. Spitz could not explain the wide variations, except to say that Penistan did the best he could with what “little” he had.

  “He may have made a mistake,” he said.

  The Court of Appeal—like the Supreme Court had done thirty years before it—was re-examining Dr. Penistan’s work in condemning Steven Truscott. And while the experts in front of the Supreme Court were evenly split, this time round, Penistan’s critics seemed to outnumber and outclass his defenders.

  There would be more battering of the medical evidence used to convict Truscott over the three weeks of the appeal hearing, but in between the testimony of experts, the five judges also heard from several witnesses who had stories to tell from the 1950s and 60s.

  The first to take the stand was Harry “Hank” Sayeau, the corporal who helped lead the investigation of Truscott and who eventually retired as an OPP Chief Superintendent. Under a barrage of questions by defence lawyer Maryls Edwardh, he could not explain why he dismissed statements from two key witness that contradicted the Crown’s case.

  As a nine-year-old girl, Karen Daum was at the bridge with the turtle-hunting Dougie Oates on that fateful night in June 1959. Like Dougie, she told police that she saw Steve and Lynne on his bike close to the river—a crucial support of Steven’s story. But Sayeau told the court he wrote in his notebook: “She was a cute little girl, but she had to be wrong. She’s not credible as far as the Crown was concerned.”

  Another child, Daryl Wadsworth, had told police he remembered seeing Steven leave the schoolyard at about 7:25 p.m, much later than the Crown’s theory that Truscott set off on his bike ride closer to 7:00. Sayeau characterized Daryl’s eviden
ce as “imaginative. Wouldn’t consider his story at all.”

  Sayeau also testified that his team did not contact any other OPP branch in the area about a possible child rapist or sexual predator in the area. Sayeau said at the time he had never heard of Alexander Kalichuck, the heavy-drinking airman who had tried to lure young girls into his car two weeks before Lynne was murdered.

  “There was no follow-up as far as I was concerned,” said Sayeau.

  One of the appeal court judges, Justice Michael Moldaver, wondered why the police never considered that a sexual psychopath might have been responsible for Lynne’s rape and murder before narrowing their focus on fourteen-year-old Steven Truscott.

  “Did the thought ever cross your mind that, for someone to … strangle her then sexually assault her, you might want to be looking for someone who is more of a pervert, more of a sexual psychopath?” he asked. “Did you ever talk about that with your colleagues?”

  “I don’t recall that,” said the eighty-four-year-old Harry Sayeau.

  Several days later, Karen Daum—now going by her married name Jutzi—took the stand herself. The last line of her statement to the police back in 1959—which was never shown to the defence—read: “Point of meeting pointed out was just about railway tracks.” That would have put Steven and Lynne well past Lawson’s bush and helped support Steven’s innocence. As she had first explained in the 2001 edition of this book, Karen Jutzi told the appeal court that the police got it wrong: she had told them she ran into Steve and Lynne much higher up on the county road, close to the tractor trail entrance to the bush.*

  That version was much less favourable to Truscott’s case, so defence lawyer Phil Campbell set about to discredit it. He pressed Karen Jutzi on how accurate her recent memory could be compared to the at-the-moment statement she gave police in 1959. He also wondered how the police could have so badly misunderstood her story, considering that the account they wrote down was so damaging to their own case against Truscott.

  Campbell noted that the girl’s father, a “by-the-book” military man, accompanied her when she met police repeatedly and must have heard her recount her story at least three times.

  “Wouldn’t you expect your father, being the kind of man he was, to correct the statement [if it was inaccurate]?” Campbell asked.

  “Yes, he would,” Karen replied.

  She remembered Steven veering toward her on his bike, knocking her off. But Campbell showed her pictures of the road which sloped sharply near the bush where she now said she ran into Steve and Lynne—making it difficult if not impossible for her to see anyone heading toward her. Karen then pointed to another spot on the road, in effect coming up with a third version of where she might have been standing. “All I remember is, when I fell off the bike, I looked up and the bush was there,” she said.

  “Is that an actual memory of yours, of getting on your bike and riding up to the [railway] tracks, or are you just reconstructing?” he asked.

  “I’m just reconstructing,” the witness replied.

  Karen was just one of several key witnesses who testified for the first time in a court of law to what they had initially revealed in the 2001 edition of this book. By coincidence, Bob Lawson turned seventy the day he took the stand at the appeal hearing, and the Clinton farmer took the judges back to the night Lynne disappeared. He told them that he saw a mysterious red convertible parked near the bush late that evening, but when he reported it, the authorities were not interested because they had already arrested Steven. Lawson also repeated his startling account of how Jocelyne Gaudet had come to him during the trial to ask him to change his testimony: she had testified she had come by his farm looking for Steve around 6:30 p.m. when in fact the farmer—and Gaudet—knew it was closer to an hour later, around 7:30 p.m.*

  Jocelyne Gaudet’s falsehoods were further explored at the appeal hearing when Sandra Stolzmann reiterated her story, as she did in the first edition of this book, that Gaudet told her in the 1960s that she had lied at Steven’s original trial.† Stolzmann and Gaudet were both nursing students in Montreal when the Supreme Court hearings brought the Truscott case back to prominence. “They’ve got the wrong guy, they’ve got the wrong guy,” Gaudet kept repeating.

  Another nursing classmate at the time, Elizabeth Hulbert told the court that Gaudet said: “I was one of the witnesses at the Steven Truscott trial and I lied.” When her classmates urged Gaudet to go public and tell the truth, she refused. “She wasn’t going to testify to recant her earlier statement,” Hulbert said. “I’ll get myself admitted to a psychiatric facility” to avoid testifying Gaudet told her friends.

  Catherine Beaman—who as Cathy O’Dell was a best friend of Lynne’s—recounted how she and Harper would hitchhike regularly to Clinton.‡ Harper’s parents had said at the 1959 trial their daughter did not hitchhike (even though in their first report to police the night their daughter disappeared they feared she had hitchhiked to her grandmother’s house). Beaman—who was never questioned by police back in 1959—testified that she and Lynne thumbed rides “at least 15 to 20 times.”

  Outside the court, Beaman told reporters she missed her friend Lynne but also hoped Steven would be able to put the ghosts of the past aside: “Steve needs justice as does Lynne, because it’s as much about justice for her as it is for him.”

  The final week of hearings was dominated by—of all things—bugs.

  At one point, all five judges of the Ontario Court of Appeal were passing around a box of flies, preserved and pinned like historical artifacts. In their briefs filed with the court, Truscott’s lawyers argued new evidence from the field of forensic entomology—the study of insects in criminal investigations—could be “decisive” in determining Steven’s innocence.

  Dr. Penistan had collected samples of newly hatched maggots found around and inside Lynne’s body. It sounds grisly but the speedy growth cycle of flies allows experts to measure them when a corpse is found, then basically count backwards and calculate when the eggs or larvae were first laid on a dead body—and hence, determine the time of death. In this case, Harper’s time of death.

  Elgin Brown was the biologist who received the maggots back in 1959 and he was still alive in 2006 to tell the appeal court his findings. During the original trial, Brown was asked about the grass stains on Steve’s clothes and the blood under Lynne’s fingernails—but not about his lab notes and the bugs. The original coroner, Dr. Penistan, assumed the insects he found were blowfly maggots, varying between and ¼ of an inch long. To reach such a size their eggs would have to have been planted before sunset on June 9—in other words, when Steven was with Lynne.

  But Brown told the modern-day hearing that back in 1959 he grew samples of the bugs into adulthood in the attorney general’s lab in Toronto. The smaller insects, at of an inch, were indeed blowflies, but he found the larger ones, at ¼ of an inch, were in fact flesh flies. That was significant because female flesh flies do not lay eggs—instead, they grow their offspring inside their bodies and then leave larvae on corpses.

  After consulting with other experts at the Ontario Agricultural College and the author of a textbook on the subject, Brown concluded the flesh flies began to infest Lynne’s body sometime on Wednesday, June 10—which meant that Lynne had to have died after the sun went down on June 9 because these flies are not active at night.

  The sun set at 9:08 p.m. on June 9—putting Steven in the clear.

  Brown’s new testimony—considering he was the biologist who actually handled the maggots back in 1959—was extremely damaging to the prosecution case. So to counter him before the new court of appeal hearings, the Crown brought in Dr. Neal Haskell, a forensic entomology professor at Purdue University in Indiana, who had testified at seven hundred criminal trials around the world. Haskell insisted that the bug evidence did indeed point to a time of death when Steven was with Lynne. He based this largely on his conviction that flesh flies do not deposit their hatched larvae into a body until twenty-four hours
after death.

  But, two days later, when another American entomologist testified there was “no scientific credibility” to the Crown’s theories. Rich Merritt, head of the entomology department at Michigan State University, is the kind of expert who gets called in by the Hershey Company when a customer finds a bug in a chocolate bar: he uses science to determine if the insect got into the snack at the manufacturing plant or the store. On the more serious issue of life and death—in particular Lynne’s death and the life of the maggots on her—Merritt studied the growth of the insects on her body, the temperatures around her and the amount of energy and hours it would take for the flies to reach their size. Like all the other experts except the crown’s Haskell, he concluded the insects began to infest Lynne’s body on the morning or afternoon of June 10, 1959—or perhaps even later.

  He said science all but ruled out the possibility that Lynne’s body was in Lawson’s bush before it got dark on June 9, the only time Steven could have left it there. “You would expect to see larger larvae in this area of the body,” Merritt testified.

  The medical and forensic testimony that was used to convict Truscott was looking shakier as each day of the hearing passed. By the final day of testimony, it had almost collapsed. The last witness before the Court of Appeal—a world-renowned doctor who literally wrote the book on pathology—derided as “ludicrous” and “suspicious” the findings that helped condemn a fourteen-year-old to be hanged. Dr. Bernard Knight’s book is one of the standard textbooks for pathologists. A professor at the University of Wales, a forensic expert in the UK for fifty-one years and a barrister for thirty-eight years, he is also the author of twenty crime novels. By the time he finished his testimony on Friday, July 7, it seemed as if Truscott had been found guilty on the basis of bad fiction instead of good scientific fact.