by Julian Sher
The Truscott affair, Knight said, is “known worldwide to every forensic pathologist”—but not in a positive light. Rather, he said, the case is generally seen as a “mishap” in the profession. He called stomach content analysis virtually useless. (“It’s so inaccurate it is hardly worth doing,” he later added outside the court. “There are so many errors in it that it’s impossible to give an accurate time of death.”)
He found it “suspicious” that Dr. Penistan fixed the time of death at precisely the half hour when only Steven could have committed the murder. “It seems very strange that he happened to land upon the very window of opportunity of access by Mr. Truscott to Miss Harper,” Dr. Knight told the judges.
“Any doctor who tries to pin time of death down to a half hour is uninformed or incompetent,” Knight said.
Harsh words to end what had been three weeks of harsh testimony.
Steven Truscott’s days in court in 2006 were a lot different than those the justice system offered him in 1959 or 1966.
Unlike the 1959 trial, this time round, Steven had legal representation that at least had all the firepower—if not more than that—of the Crown. Steven had some of the best lawyers in the country who had the time and resources to mount a full investigation. There was full disclosure; in fact some of the biggest bombshells, such as Dr. Penistan’s earlier versions of his autopsy report, came from documents the defence received from the government.
Unlike the 1966 Supreme Court hearing, where half the expert witnesses and almost all the judges endorsed Penistan’s conclusions on stomach contents and the time of death, this time the shoddy reliance on stomach contents got the thrashing it deserved. This time, science seemed to line up squarely behind Truscott: medical and forensic practices had made great strides in four decades and they pointed away from, not toward, a time of death that fingered Steven.
Ever cautious and always a man of few words, Steven allowed himself a brief hint of optimism. “It’s very enlightening for everybody to finally hear some of this information that has been there for a lot of years and nobody has ever brought out,” he told reporters on the steps of the courthouse. “We’re glad it’s to this point, anyway, [but] there’s still a lot more to go.”
There was a lot more to go. It would be another six months before the defence and Crown lawyers were back in court. By now it was January 2007 and Steven celebrated his sixty-seventh birthday while watching the justice system rehash what had happened to him as a fourteen-year-old boy. For four weeks, the lawyers presented their oral arguments before the court—debating the fine points of the law, each side firing its last, best shot.
“It is not the exposure of a wrong but the failure to right it which brings a criminal justice system into disrepute,” Truscott’s legal team argued with customary eloquence in its final brief. They acknowledged their client “is unable to ‘prove’ his innocence.” Absent any DNA evidence, which was destroyed by the police, or knowledge of the real killer—who would remain unknown since the police never pursued any other suspects—it was, as they put it, “an impossible task; to prove what is really a negative.”
The AIDWYC team called on the court to “ensure Mr. Truscott’s good name is returned to him and the stigma of being a killer is removed” by ordering a verdict of acquittal.
Despite the startling revelations about new evidence and bad science, the Crown, for its part, steadfastly insisted that a “fundamentally fair” trial in 1959 had proven Truscott’s guilt. More disturbingly, they argued that even if the court had its doubts about the conviction, they should not acquit Truscott but order a new trial—even though the Crown itself admitted “a new trial would not likely be feasible today.” In other words, the prosecutors preferred to leave Truscott in a sort of legal limbo, with no chance of a full acquittal.
When the court adjourned in early February, the judges gave no indication of when they would render their decision. As it happened, it would be seven more long months before Steven Truscott would learn his fate. There was nothing Steven and his family could do but wait, as they had done for so long already. In July, the Truscotts held a Canada Day party at their home in Guelph. More than 160 people showed up—from Niagara Falls, London, Hamilton, Toronto, Stratford and, of course, Clinton—to show their solidarity. The guests all carried around little badges with the Canadian flag in the corner and the slogan in the middle: “My Canada Rights its Wrongs.”
“Hopefully it will be worth it in the end,” Marlene Truscott told her supporters. “The majority of the country is watching.”
The watching was finally over on August 28, 2007.
Steve got the dramatic news as he and his family were driving to Toronto from Guelph. It was just past 8:30 a.m.; the Ontario Court of Appeal was to release its historic verdict to the public later that morning, but the legal teams got an advance copy of the decision.
“I was prepared for the worst, which has happened every time in the past,” Steven later recounted to reporters.
The cell phone rang and Steven listened as James Lockyer gave him the news.
Marlene and their three children—Ryan, Lesley and Devon—waited: was it good or bad?
A big smile broke over the face of Steven Truscott, father, grandfather and—up until that morning—a convicted murderer.
“Oh, that’s fantastic!” he said. “Fantastic.”
Marlene started crying. Lesley, the daughter who had stumbled upon her father’s true story as a teenager and was now a thirty-year-old mother of three, hugged her dad as her eyes filled with tears.
It took a few more miles for the enormity of the victory to sink in. “They finally got it right after all these years,” Steven said. “I’m so used to fighting. Now we don’t have to fight anymore.”
In a unanimous decision, the five Court of Appeal judges did what more than two dozen judges and several courts—including the Supreme Court of Canada—had failed to do for almost fifty years. They looked at the evidence—all the evidence this time, not just the choice bits selected by the police and the prosecution—and acquitted Steven Truscott of the murder of Lynne Harper.
“Probably no other case in Canadian legal history has engaged the same level of judicial analysis and sustained public interest over so many decades,” the court said, stepping out of its usual narrow legal confines to acknowledge the enormous impact of the Truscott saga. “Fortified by the unqualified support of family members and others, and with the assistance of a group of skilled and indefatigable lawyers, Mr. Truscott returned to the judicial system one last time seeking vindication.”
“This time Mr. Truscott is successful.”
Indeed.
In a 300-page indictment of what it unambiguously called a “miscarriage of justice” the court systematically tore apart the Crown’s arguments, concluding that the fresh evidence “weakens the four pillars” of the case that had condemned a teenager to the gallows. The judges reserved their harshest words for Penistan’s “scientifically untenable” testimony about the time of death. The earlier drafts of his autopsy report that suggested Lynne could have died well after 8:00 p.m., his later “agonizing reappraisal” and the new scientific conclusions about her stomach contents and the maggots on her body all helped to establish that Penistan’s “forty-five minute window for time of death must be rejected as scientifically unsupportable.” And that meant, as the court put it bluntly: “The key pillar of the Crown’s case is now gone.”
The three remaining pillars crumbled as well. The penis sores that the Crown used to scandalize the jurors could be explained by a pre-existing skin condition. “The penis lesions evidence that so vividly demonstrated guilt at trial has been weakened to the extent that it is virtually no evidence at all,” the court said. Butch George’s confusing and contradictory stories to the police—kept hidden from the jurors—had “powerful impeachment potential” that would have discredited the key child witness for the prosecution. Finally, the court re-examined the county road evidence a
bout who did and did not see Steven and Lynne that evening—first explored at length in this book.* The judges found there were “significant flaws in each factual cornerstone” of the prosecution’s theory.
All that led the appeal court judges to an inescapable conclusion: “The conviction for murder is set aside and an acquittal is entered.”
And with those few words Steven Truscott was a free man—free of the murder conviction that had haunted him since he was fourteen years old.
“What more could you ask for?” Truscott asked after he finished reading the final page of the decision in his lawyers’ offices, according to the family’s later account.
“We made it through the day,” he said with typical understatement.
Marlene, as always, took the longer view: “We made it not only through the day but through all these years.”
By 1:00 p.m. that day, Steve and his family and a few stalwart friends made it to a packed news conference, covered live on several networks. “I never in my wildest dreams expected in my lifetime for this to come true,” Steve said. “So this is a dream come true. For forty-eight years I was considered guilty; I knew I never was.”
There was a surprising amount of levity. Steven’s calm and poise—so familiar to those who knew him—that seemed to charm journalists who were perhaps expecting a bitter, broken man.
Until this moment, as a convicted killer, cross-border travel would have been difficult. Asked what his travel plans were now that the murder conviction was no longer an issue, he said Hawaii sounded appealing. Then he quipped: “I think probably the first thing is, I’ll take a little holiday from the legal system.”
Queried about a system that put him on death row as a child and then behind bars for a decade, Steven put a typically positive spin on his circumstances: “I’ve learned the only way to survive is you move on. My family and I have moved on.”
Then he added, to much laughter, “I have more faith in the court system today than I did yesterday.”
But the tone got serious when Truscott was asked about the death penalty—abolished in Canada in part because of the controversy over his case. “I’m just glad we don’t do it anymore,” he said solemnly.
“There are other wrongly convicted people,” said the once shy man who over the years had become a public symbol of injustice. “There’s a lot more to come. Hopefully I can help.”
The most moving moments came when Steve pointed to Marlene, clutching a bouquet of flowers, and to Ryan, Lesley and Devon standing at the back of the room. “This is a day for us to celebrate what has taken a long time,” said a grateful father and husband. “My three kids, they have never wavered in their belief. My wife has been the strongest supporter in the world.”
More than anyone, Marlene Truscott’s faith in her husband never wavered. More than anyone, she was always convinced that some day, somehow, her husband would be exonerated and to make sure, with the help of her prodigious memory and detective work, she amassed the details of his case since the beginning. “I always knew this would happen,” she said the day it finally did. “I knew it.”
The appeal court stopped short of declaring Steven Truscott innocent, a point that seemed significant to some journalists and commentators but not Steven or his lawyers. “I’m disappointed some people consider this doesn’t clear me,” Steven said. “I’m cleared.”
“He’s got the highest rank of acquittal, the highest rank of innocence you can get,” added James Lockyer. “One way of looking at it is that Steven Truscott is as innocent of Lynne Harper’s murder as I am. There’s no DNA evidence to show that I didn’t do it.”
The sad fact is that once you’re caught inside the judicial system, you’re either guilty or not guilty. The courts do not pronounce people charged with murder innocent. Short of being cleared by DNA evidence or by the discovery of the real killer—neither of which were possible through no fault of Truscott himself—the appeal court had gone as far as it could go.
The judges ruled that Steven “has not demonstrated his factual innocence.” But, as they quickly added, “To do so would be a most daunting task absent definitive forensic evidence such as DNA.”
When he heard, in July 1997, that David Milgaard had been released from prison as a result of DNA testing, Steven had come forward hoping DNA testing might clear his name as well. But unfortunately the police had long ago disposed of all physical evidence in a case they had considered closed. Even the exhumation of Lynne Harper’s body in April 2007, as the appeal was about to get underway, failed to turn up anything.
As for the identity of the real killer, that secret will remain buried too. The tragedy of a miscarriage of justice is that not only does the wrong man go to jail, but the right man goes free. Somewhere out there could be the man who killed Lynne Harper. Maybe he went on to kill others and is sitting in prison for those crimes. Maybe, old and without remorse, he watched the news of Steven’s acquittal and was smiling that after all these years the police had never caught him. Maybe he is dead. We will never know.
“It is not our function to solve the crime,” the Court of Appeal correctly noted. Still, they could not help but speculate that the crime scene pointed to someone else besides Steven. Lynne’s bare feet and leg lacerations were puzzling if Truscott had lured her into the bush voluntarily, the judges noted. “While far from conclusive, that gruesome picture—no struggle, the use of her blouse as a garrote and sex while she was dead or dying—seems out of place with the actions of a fourteen-year-old schoolboy whose sexual advances were rebuffed by a twelve-year-old classmate. Rather, this picture would appear to be the work of a sexual deviant.”
But that was not a conclusion Lynne Harper’s family could live with. Understandably shaken by fifty years of grief and the unsettling public spectacle of seeing their daughter’s final hours of suffering dragged incessantly through the courts and the media, they remained convinced as ever of Steven’s culpability.
“I believe he’s definitely guilty,” Barry Harper, Lynne’s older brother, had told Fred Kaufman during his inquiry back in 2002. “I could almost swear on a stack of Bibles that she never hitchhiked in her life,” he later said, despite testimony to the contrary from Lynne’s close friends and the statements his parents gave to the police the night Lynne disappeared.
Lynne’s mother had died several years ago, but her ninety-year-old father Leslie was in a nursing home in western California when he heard the news of Truscott’s acquittal. “I’m numb … I’m to the point where I don’t feel as if I can even stand up or walk,” he told the Globe and Mail. “The joy, the jumping up and down on the streets where [Truscott] was … it doesn’t sit too well.
“All I can think about is the cruel fifty years of mental distress,” said Lynne’s father. “A little girl was never given an opportunity to live.”
Barry said his father still has some of Lynne’s belongings that he looks at every day. “He’s never gotten over his sorrow.”
On the day of Steven’s acquittal, a fresh wreath of flowers appeared on Lynne Harper’s grave in the United Church cemetery in Union, Ontario.
There were two crimes committed in Clinton in that hot summer of 1959. One remains unsolved, the other was preventable. One girl was killed; one boy was nearly hanged and spent most of life convicted of a murder he did commit.
We may never know the culprit of the first crime, but we know many of the names of the people whose actions or inactions set the stage for the second: prosecutor Glenn Hays, chief police investigator Harold Graham, pathologist Dr. John Penistan and trial judge R.I. Ferguson. If the Court of Appeal was loud and eloquent about the “miscarriage of justice” it was disappointingly silent on who did the miscarrying. Wrongful convictions, like murders, don’t happen by themselves.
But the Court seemed to go out of its way to avoid pointing fingers. “Criminal cases were tried very differently in 1959 than they are today,” they wrote—which, while true, hardly excuses egregious errors that were ma
de even by the standards of 1959. The judges conceded that “police ‘tunnel vision’ is a feature found in many miscarriages of justice” but deliberately stopped short of applying that analysis to the Truscott case. “It is unhelpful and unnecessary to try to decide at this distant point whether the police focused their attention unduly on [Truscott],” they wrote.
On the contrary, it is both helpful and necessary. Not to inflict shame or blame—most of the key characters are dead in any case—but to learn any relevant lessons so that mistakes are not repeated. “I am not looking for them put blame on anybody,” Truscott said at his news conference. “The system is … not geared to make anyone accountable.”
If proof of the system’s inability to be self-critical was needed, it came within half an hour after the appeal judges made their ruling public, when Ontario Attorney General Michael Bryant addressed the media just outside the courthouse. “It is over,” he said in the first minute of his speech.
Though he insisted “this chapter of Canadian history is never to be forgotten” he seemed to do just that. Bryant’s office had been under no obligation to prosecute Truscott when Ottawa referred the case to the Court of Appeal. The Crown could have cooperated with the defence for a speedy resolution. Prosecutors decide all the time to drop cases they realize do not belong in court. No one would hold Bryant responsible for the errors and misdeeds the Crown committed fifty years ago in a Goderich court room.
But instead the attorney general of 2007—not the prosecutor of 1959—went after Truscott with a zeal that would have made Glenn Hays proud. So it was more than a little incongruous to hear Bryant try to sweep away the Truscott case as if it was a curious relic of the 1950s.
“What happened and how could it have happened?” he asked—as if the errors had only occurred in the distant past and his administration had no hand in Truscott’s ordeal. Then Bryant gave his quick reply: “Some answers lie in today’s Court of Appeal judgment.” In fact, the court had explicitly stated it would not look at how or why a miscarriage occurred.