A FEW THOUGHTS ABOUT AN INNOCENT MAN
My reflections on reading “Until You Are Dead” by Julian Sher
by Robert Collings
Reasonable doubt and actual innocence are concepts that are often as different as night and day. The facts may fall short of proving guilt beyond a reasonable doubt, but those same facts often leave no doubt whatsoever on how to bet.
If a man’s criminal conviction is based solely on forensic evidence that is flawed, then a miscarriage of justice has likely occurred and the man should get a new trial. That does not mean the man is innocent, nor does it necessarily mean that the original forensic experts were wrong. It means that our system of justice will not take away a man’s liberty and put him in prison unless we are sure of the man’s guilt – not sure beyond any doubt, but sure beyond any reasonable doubt.
The legal concept of reasonable doubt has nothing to do with actual innocence and it has no application in our day-to-day lives. Our belief system is based on our knowledge of the world around us, and our own common sense. If we were to subject our belief system to an exacting criminal standard, then all would remain in limbo and we would believe nothing.
But in a criminal context, that standard can be frustrating. If you are dammed certain that Mr. Smith murdered his wife but still have some reasonably held belief, however small, that you may be wrong - then Mr. Smith walks. He walks, because your own right to life and liberty is the most precious commodity in a democratic society. So don’t be too concerned when Mr. Smith stands on the courthouse steps proclaiming his “vindication” as his lawyers slap him on the back. God will ultimately deal with Mr. Smith as He sees fit, exactly like God will deal with you and me.
A strict standard it is, this reasonable doubt, but it can often take a beating and still remain intact. Appeal Courts commonly find that errors were made in a criminal trial, yet still uphold the conviction at the end of the day. Why? Because a few simple, undisputed facts can nail an accused even if those facts are part of a larger body of less reliable evidence: zealous cops, lying witnesses, contradictory medical evidence, and suspect documents. There is never a bushy haired stranger who committed the murder, no phantom in the night, no bogeyman.
A single fact says volumes, and a smart prosecutor sticks to the facts that can’t be challenged. Those facts, sometimes few in number, form the core of any criminal prosecution. If the core of the case traps your client, a smart defense lawyer tries to smother those facts with irrelevant evidence and self-serving argument. That tactic is called Sophistry, it was taught by the ancient Greeks, and the practice is still alive and well in every courtroom in North America. (“If it doesn’t fit, you must acquit!” is one nauseating example that comes to mind, and there are many others.)
A few more words about defense lawyers before we move on to Steven Truscott.
Remember all those books that came out by members of the O.J. Simpson defense team after the verdict? Remember the titles of those books? It seems that every one of these genius lawyers, glowing in their victory, wanted the word “justice” in the title of their book: Journey to Justice, The Search for Justice, and on and on. It is justice they want, and those dammed police screw it up every time. Well folks, enjoy the books if you want, but don’t fall for the snake oil pitch because justice has nothing to do with it.
Defense lawyers are paid to obtain an acquittal for their client in a criminal case by raising a reasonable doubt. Period. That is our system of justice and I wouldn’t have it any other way. But if you cringe when you hear all this self-serving nonsense about these innocent clients and those nasty police all hell-bent on denying them justice, you are not alone. Just remember that an advocate does not have the slightest interest in giving you a balanced version of the facts about his client or his cause, and this is true whether the forum is the courtroom or a panel discussion about the wrongfully convicted.
I am not talking here about people who are out to deliberately mislead you, and I have not the slightest doubt that Steven Truscott’s supporters (and there are many) hold an absolute belief in his innocence. I am talking here about people who take up a cause and do not want trivialities like the truth to stand in the way of that cause. Justice is a wonderful thing when it comes to Steven Truscott, or Hurricane Carter, or anyone who has been wrongfully convicted, but all too often in these cases it seems that justice is in the eye of the beholder, and justice prevails only when you see it their way.
Steven Truscott was found guilty of the murder of Lynne Harper in 1959. In 1966, Truscott got a complete review of his case in an unprecedented hearing before 9 judges of the Supreme Court of Canada. He was represented by Arthur Martin, considered one of the best criminal lawyers in the country. New forensic evidence was presented on his behalf, and Truscott himself took the stand and finally got a chance to tell his story for the first time. His conviction was upheld by 8 judges (one dissenting) and he was sent back to prison to serve the remainder of his sentence. Those 8 judges were clear in their reasons that they listened carefully to Steven Truscott as he gave his testimony - and they didn’t believe a word he said.
I have read a great deal about the Truscott case since Justice Minister Irwin Cotler sent the matter back to the Ontario Court of Appeal for another hearing, yet in none of those accounts is there any mention about Truscott’s testimony before the Supreme Court of Canada in 1966. It is like it never happened at all. What gives here? After a two week hearing, eight of our Supreme Court justices essentially call Steven Truscott a liar, yet the firestorm of public opinion seems to be overwhelming that the man is innocent and wrongly convicted. Are we talking actual innocence here or just reasonable doubt? What is it about this case that has held our national attention for the last 45 years? We start with the proposition that the facts don’t lie, so let’s stick to the facts when we go back to the RCAF Station in Clinton, Ontario, on the evening of Tuesday June 9, 1959.
We know that Steven met Lynne at the school, and we know the two of them left on Steven’s bike at some point after 7:00. It appears that the latest they left the schoolyard for the country road was around 7:25 and the earliest Steven returned to the school was 8:00, with the times varying either way (page 257).
These times are not precise and this is to be expected. The events were meaningless at the time, noticed only in passing if at all.
However, the simple events of a routine spring evening now take on a whole new meaning in the context of a murder. The police and the lawyers put every event under a microscope and every second of time is analyzed to death. Events and locations that had no meaning hours before now mean everything. Consistency and precision in the memories of the witnesses under these circumstances would be the exception, never the rule. This is especially true with the evidence of the children, as they spin their recollections over and over again in the weeks and months that follow the event.
But we know for a fact that Steven and Lynne set off on the ride and we know the approximate time. We also know for a fact that Lynne Harper had only recently finished her dinner, we know that her system was in the early stages of digestion – and we know that the process of digestion stops at death. These are simple facts, and they are as true today as they were in 1959. Every shred of evidence against Steven Truscott spreads out from these few facts as we follow these two down the country road.
We also know for a fact that the two proceeded northbound down the road towards the bridge, and we know that during the journey they passed Lawson’s bush to their right, on the east side of the road. Look at a map of the general area as it was in 1959 (and likely today) and we see all sorts of locations and points of interest, and Lawson’s bush is just one of them. Absent the murder, this location has no more significance than any other, but it does look like a fairly large area on the map. But the references to “Lawson’s bush” or “Lawson’s farm” or “the bush” or “the woods” in connection with the murder do not mean the whole area in general. As I understand the case, these references mean the specific section of the bush just east of the country road at the tractor trail, and then just south off the trail beyond the barbed wire fence.
The term “Lawson’s bush” or “the woods” tend to produce a much larger and more general picture in our mind than words associated with a single location or landmark. But when we talk about “Lawson’s bush”, we talk about a precise location within the bush. And on that awful Tuesday night in 1959, Lawson’s bush – a pinpoint location just east of the road and south of the trail – was nothing more than a random point on the map. Until Lynne Harper’s body was found there the following Thursday, Lawson’s bush had no more significance than Lawson’s barn, or the Smith house, or the Jones shed, or any other house, bush, shed, or pothole in the entire area.
All of this we know, and we can follow Steven and Lynne on the bike all the way down the road to Lawson’s bush without hearing a single dissenting voice. But at this nondescript location, the voices part company. Steven tells us that no stop was made at the tractor trail and no stop made at Lawson’s bush. If true, it took them a few seconds to approach the trail from the road and then pass by. They were not passing anything that might attract attention or become the focus of conversation later on. The tractor trail meets the country road and they keep going. There is no evidence that anyone saw them at this point, and no one would pay any attention to them if they did. So we have a striking contrast between the huge significance this location gains after the fact – this nondescript, pinpoint location – and the complete lack of significance it has at the time. The location gains significance only when Lynne’s body is found – unless someone knows or suspects the body is there in the day or so before the police arrive.
Richard Gellatly is going south on his bike and he sees Steven and Lynne on the country road just after they left the school. Philip Burns is following behind in the same direction on foot and he does not see them, supporting the Crown case that they went into the bush before Philip could reach them (pages 257-258). This theory makes sense to a point. But change departure times ever so slightly, and tinker a bit with walking speeds and biking speeds, and you get a choreography that just boggles the mind with its complexity and endless variations.
Add to this the very small window of time that Truscott has to commit murder and then return to the schoolyard, relaxed and unmarked by any signs of a struggle - and we start with the proposition that his involvement in such a crime is unlikely. Our common sense tells us that he would have to show some sign of complicity in such a crime, yet the evidence suggests he showed none at all – not in his appearance, not in his behavior.
Douglas Oates insists he sees Steven and Lynne at the bridge, which supports Steven’s story (page 235). This is the strongest evidence in his favor and undermines the entire Crown case against him. Strong as it is, does it make sense when applied to Truscott’s version of events? Put another way, is his own story believable enough to stand on its own without Douglas Oats? Does Steven’s story destroy the core of the case against him?
Steven tells us they continued their journey down the road to the highway. He tells us that Lynne’s plan was to see the ponies at a little white house just east along the highway before returning home by 8:00 or 8:30 (page 50). This location was not far from the intersection (page 50) and there is no suggestion anywhere that this 12-year-old girl would have to hitchhike to get there. She tells Steven that she was mad at her mother about the swimming, but she does not tell him that she intended to run away from home on this routine school night, or was off to visit her grandmother and had to thumb a ride with a stranger (“she had her thumb out” – page 72).
When Steven drops Lynne off at the intersection her intentions suddenly change, because she does not visit the ponies and she never goes to the little white house. It is one thing for Steven Truscott to deny ever taking Lynne into the bush. He has denied this for over 40 years and he will go to his death denying it. But having made that denial, he must now explain where they went. He was the last known person to see Lynne Harper alive. If he didn’t take Lynne into the bush, then where did he take her?
To the highway, he explains, where a car immediately stops and a faceless stranger whisks her away. The driver is not described as a bushy haired stranger, or the bogeyman, but he will fill both roles soon enough. In my view, a problem now arises for Steven Truscott in the story he tells. Lynne Harper was annoyed because she couldn’t go swimming, but a mighty long bow must be drawn to connect that state of mind with the intention to run away from home that night. Where does Lynne go after dinner? Does she pack a bag and storm out of the house? Does she run off in tears to her friends and tell stories about her abusive parents? Does she even bother to put on a jacket and stick a toothbrush in her pocket? There are many things about that night that we don’t know, but we know exactly what Lynne Harper does when she finishes her dinner. Wearing only shorts and a sleeveless blouse, she walks over to the school grounds near her home and cheerfully plays “big sister” to the younger Clinton Brownies.
And all the while, her stomach contents are in the early phases of digestion. It is a process that is as certain today as it was then.
The book suggests that Steven’s hitchhiking story gains some credibility due to the fact that Lynne had hitchhiked in the past with friends to go shopping or go to the skating rink (page 22). But take a closer look at the details and it becomes clear that we have an entirely different situation that night. Lynne Harper is alone, it is a school night, it is getting late, she wears only her summer clothing and (I assume) carries little or no money, she tells no one about her plans, she has no known destination, and she has no reason to suddenly leave town. What possible sense does it make for this child to walk over and help the Clinton Brownies when she is planning all along to hitchhike eighty miles to visit her grandmother?
But if we believe Steven Truscott, then we have to believe that this kid was soon planning to leave her home and her parents and head east with the first stranger who picked her up at the highway. Either that, or she makes this decision after her chance meeting with Steven while riding on the front of his bicycle – an even less likely possibility.
In 1971, Pocket Books published The Steven Truscott Story by Steven Truscott as told to Bill Trent. (The book is mentioned at page 504 of Julian Sher’s book, but no quotes are provided.) At pages 8-9 of The Steven Truscott Story Truscott talks about meeting Lynne Harper before the bike ride. He says: “We chatted a while about…Well, who remembers what we talked about? She was in a chatty mood and did most of the talking…”
So we know Lynne first plays with the Clinton Brownies after she finishes her dinner, and then meets up with Truscott in a “chatty” (and presumably happy) mood, according to his 1971 account. Truscott would then have us believe that a few minutes later she sticks her thumb out and runs off with a complete stranger. This story is crucial to Truscott’s claims of innocence, yet the more I think about the story the more I have to shake my head in disbelief. The story may be true – we will never know – but it lacks the ring of truth.
The story goes on. Steven tells us that a car stops almost immediately, Lynne gets into the car without hesitation, and the car continues eastbound down the main highway. As implausible as this story is when one takes a hard look at it, it creates another major problem for Truscott when it comes to the ring of truth. We know Lynne Harper’s body is found in Lawson’s bush. Yet the man-in-the-car story takes her further away from the country road and therefore further away from Lawson’s bush with each passing second. His story, if true, not only has to explain Lynne Harper’s disappearance but it must also account for the location of the body, and Truscott’s story does neither.
Later that evening, some odd events begin to happen. Despite the fact that Lynne Harper is not yet missing, and despite the fact that Lawson’s bush – the pinpoint location east of the road, south off the tractor trail, where no stop was ever made – is just one of hundreds of unremarkable locations in the general area, and despite the fact that Steven is not yet a murder suspect, and despite the fact that Lynne is in a vehicle driving away from Lawson’s bush down a main highway, and despite the fact that the brief pairing up of Steven and Lynne on the bike is noticed by very few and significant to no one at all – despite all of this, all three start coming together in proximity that evening: Steven Truscott, Lynne Harper, and Lawson’s bush.
What follows may not be evidence in the legal sense, but the mysterious radar shared among children is a phenomenon that often defies explanation. For the next 24 hours, Truscott’s friends have the crazy notion that Lynne did not run away, and that Steven did not take her to the highway.
Jocelyne Gaudet told police that she was looking for Steven at Lawson’s bush because she had arranged to meet him there the day before (Monday) to see a newborn calf (page 120). Her story has some contradictions, the time lines are suspect, and the book goes to great lengths to discredit her entire account of the evening (pages 120-125).
But the thing being discredited here is Truscott’s criminal intention to take a girl into the bush, not the fact of Jocelyne actually being there and looking for him. Even if we assume for the sake of argument that nothing Jocelyne says can be trusted, we still run into the proven fact that she was at Lawson’s bush around the same time Steven was on the bike with Lynne and she was looking for him. We know this because Lawson himself puts her at his barn around 7:25 p.m. that night, and she tells him she had been looking for Steven at the bush and was going back to look for him again at the same spot (page 124). Her search is also confirmed by a second witness, Philip Burns (page 35).
The book is full of references to Jocelyne at the bush. One example from the passage dealing with the Crown’s summation appears at page 262: “With a careful mixing of selective facts and suggestive fiction, Hays painted a picture of how he thought the murder took place. He first had to deal with what Steven did to his bicycle, since Jocelyne never saw a bike when she was walking down the lane just ninety feet from where Steven, according to the Crown, was busy with Lynne.”
The book paints Jocelyne as a liar (“a girl few of her classmates or teachers trusted” – page 125), but never once does it explain away the fact of her being at Lawson’s bush that Tuesday evening just 90 feet from where the body is found on Thursday. If she lies about a planned meeting with Steven and knows nothing about the whereabouts of Lynne Harper, then why on earth does she look for Steven at the bush (evidence of Lawson) and then look for both Steven and Lynne at the same place (evidence of Burns)? Unless Jocelyne is sleepwalking, she’s obviously there for a reason.
To this day, Truscott denies ever inviting Jocelyne into Lawson’s bush. So which of the two stories has the ring of truth? We will never know for certain, but I do know that if Jocelyne had a beef with Truscott, she sure as hell found an ugly way to get even. What on earth could Truscott have done to anger Jocelyne to this extreme? Did he break a movie date with her, or sneak a kiss on the sly with her best friend? Whatever the teenage crime, Jocelyne never took any teenage revenge: no sticking chewing gum in Truscott’s locker, no telling him off in front of the gang at the Custard Cup. This angry kid settled the score by taking the witness stand at Truscott’s murder trial and telling a deliberate lie that would send him to his death.
The same can be said of Butch George. Assume Butch is a liar. Assume he has no reason to put Steven in the bush, or Lynne in the bush, or both of them together in the bush, and no reason at all to pick the bush as the location for his lies. He might as well put them together in the schoolyard or someone’s back porch. But he selects the bush for his lie, the same spot where Jocelyne earlier looks for Lynne and/or Steven (evidence of Lawson and Burns) and the same spot where Butch joins her in his own search (evidence of Burns). The credibility of Butch George is not the point. Like Jocelyne, he is there.
I want to avoid splitting hairs here, but it may be that Butch is not actively looking for Steven and/or Lynne in the bush, but simply makes his inquiries at that location as he runs into Philip and Jocelyne. But he looks for them both, as does Jocelyne, and we know that Jocelyne does her searching at the bush, and she searches twice (evidence of Lawson).
Butch George first tells his “in the bush” story to Kenny Geiger and Allan Durnin (page 39) and then later that evening to a group of boys at The Custard Cup (pages 41-42). Why does he invent a story involving the specific people he sought earlier (Steven and Lynne) being at the specific location Jocelyne looks for them earlier (the bush) if he has no reason to believe they were ever there in the first place?
Butch “recants” at trial and says he never saw Steven at any time that night, and if he didn’t see Steven, then of course he did not see Steven take Lynne into the bush. But if Butch can’t be trusted, his stories don’t mean much either way. However, we know for a fact he was asking for Steven and Lynne at the bush, and we know for a fact that Jocelyne also looked for both of them at the bush. We also know exactly where Lynne Harper’s body was found – the bush. If Lynne Harper was never there and there was never any reason to look for her there, then we have a pointless search by these two kids, followed by an impossible coincidence that actually puts here there later on.
Put another way, there were some bizarre forces at work that Tuesday night to make the mysterious stranger reverse direction and take Lynne Harper back to Lawson’s bush, thus fulfilling the prophecies of Jocelyne Gaudet and Butch George.
Wednesday afternoon produces another interesting revelation:
“An even stranger conversation that afternoon (Wednesday), involving another member of the George family, was reported to police. Mike George was a fifteen-year old relative of Butch’s who lived with the Georges in their house on Edmonton Road. Karen Daum remembers Butch and Mike would frequently get into scraps and wrestling matches on the front lawn.
“Did you know that Lynne was raped?” Mike George said, according to Joyce Harrington, one of the mothers on the base. The account appears in a brief police note.
If true it was an eerie remark.” (page 51)
It was true, and it was said the day before the body was found.
Let’s put this together. Mike George is the teenage relative of Butch George and the two live under the same roof. On Tuesday, Butch George starts spreading stories that Steven Truscott took Lynne Harper into Lawson’s bush. Mike George then tells Joyce Harrington that Lynne Harper has been raped, and Joyce Harrington reports this to the Clinton police on Wednesday. Is it a great leap in logic to then conclude that Butch George has told Mike George that Steven Truscott raped Lynne Harper in Lawson’s bush?
You may want to dismiss all of this as wild stories told by nasty kids - except we know that Lynne Harper was raped, and we know her body was found in Lawson’s bush the day after the wild stories were told.
But there is more. We know Lynne Harper was in Lawson’s bush, but the suspicions of two kids do not necessarily put Steven Truscott in Lawson’s bush. However, three independent witnesses do put him there – in his own words.
A school friend, Tom Gillette, says that Steven told him the next morning (Wednesday, and Lynne is still missing) that he heard a calf in the woods that prior evening and he went in to investigate (page 51). So Tom is either mistaken or lying, but the subject matter takes us back to the same location – the bush – and the same coincidence.
Another friend, George Archibald, hears Steven at lunch the following day having a conversation with Butch George about being in the bush that evening. Butch asks Steven what he was doing in the woods with Lynne. Steven denies being with Lynne, but then says he was in the woods chasing a cow (page 51). So George Archibald, like Tom Gillette that morning, is either mistaken or lying. But the specific location, and the coincidence, are the same.
We move into that evening. On the bridge that Wednesday night Bryan Glover hears Steven tell Paul Desjardine that he went into the bush that night with Lynne looking for a calf (page 154). Bryan is consistent in his own recollection, but Paul’s initial version was that Steven denied this (conflicts with Bryan) then later at trial he says that Steven admitted being in the bush (Paul changes his story, but he is now consistent with Bryan). Same location, same coincidence.
Despite Paul Desjardine’s initial recollection, and despite over 40 years of denials by Truscott, we have three boys (Tom, George, and Bryan) at three different times (Wednesday morning, noon, and evening) telling us that Steven admitted to being at Lawson’s bush that Tuesday evening. Not only that, those three boys confirm that he admits to looking for a “cow” or “calf”, which is the same subject matter of Jocelyne’s own account.
Jocelyne Gaudet is a liar who cannot be trusted, yet these independent witnesses support her story on two crucial points: the location of the meeting with Truscott (Lawson’s bush) and the purpose of the meeting (newborn calves).
It is true that the conversations at the school on Wednesday put Steven in the bush without a specific mention of Lynne, although she is included in the third conversation on the bridge that is overheard by Bryan. If Lynne was not with him, then Steven either went into the bush alone while she waited on the road, or he went into the bush after he dropped her off at the highway. Either way, Steven Truscott denies being in the bush at any material time on Tuesday and he has stuck to his story ever since.
Did Steven look for a calf in the bush after leaving Lynne, then lie about his innocent act later on because it looked so suspicious? We can toss around all the theories and possibilities we want, but we are left with only one common sense inference to draw from all this talk about the bush. If the boys are correct and Steven Truscott really was in the bush that evening, then Lynne Harper was with him.
There may be no confession of murder in this story, but the comments Steven makes about taking Lynne into the bush, or being in the bush looking for a calf, come awfully close. His entire defense is based on the notion that he was not in the bush that evening, yet three independent witnesses hear him say just the opposite before the body is found. This is damming evidence against him, but I see little or no reference in the book to the Crown argument on this point at the trial and appeal levels or at the Supreme Court of Canada.
At some point in this long and complicated saga, didn’t one of these smart prosecutors think of standing up and pointing out the obvious?
Imagine yourself a silent witness to all this talk from the moment Jocelyne meets Lawson at his barn on Tuesday evening. Put yourself at the school the next morning, then on the bridge that evening when the last comment about the bush has been made and the last boy has hopped on his bike and gone home. Here is a summary of what you now know:
(1) Jocelyne says Steven wanted to meet her at Lawson’s bush.
(2) Jocelyne is looking for Steven at Lawson’s bush.
(3) Butch George says Steven took Lynne into Lawson’s bush.
(4) Truscott tells Tom Gillette that he was in Lawson’s bush.
(5) George Archibald hears Truscott say that he was in Lawson’s bush.
(6) Bryan Glover hears Truscott say that he was in Lawson’s bush.
(7) The police record a tip that Lynne Harper has been raped.
You stare back down that country road towards Lawson’s bush. No body has been found at this point and you don’t know if you are searching for a runaway child or a murder victim. There have been no police investigations and no forensic tests. Dr. Penistan has not yet backed off his opinion, because he does not yet have an opinion. There are no stomach contents to worry about, no confusing time lines, no grieving family, no headlines, no nothing.
You have not yet heard one word from the police or the expert witnesses or the lawyers, but your common sense tells you there is only one place to look for Lynne Harper. I am not using metaphor here, I mean this literally. If you heard all this – and we know for a fact it was said, and when it was said – then you, me, anyone, would head straight to Lawson’s bush and take a look.
If Steven Truscott’s story is true, then all this talk about the bush is false. He and Lynne were never in the bush. Jocelyne had no reason to look for them there. Butch and Jocelyne had no reason to look for them there. Steven never told anyone he was looking for a calf in the bush with Lynne, because they were never there. Tom is wrong. They were never there. George is wrong. They were never there. Bryan is wrong. They were never there. Paul is wrong. They were never there. Butch is a liar and all his stories about Steven taking Lynne into the bush on Tuesday night are just a figment of his imagination. All this talk about the bush has to be false if Steven is telling the truth.
So you go the place all the boys are talking about, the place in Butch George’s imagination. You take the walk down the country road, you turn east at the tractor trail, you walk a bit, you step over the crude barbed wire fence, you take a few steps into Lawson’s bush – and there you find the body. The leaves and earth around the body are undisturbed, with no piles of dirt, scraped earth, or broken branches to suggest a violent struggle. Even the shoes and socks have been placed in an orderly manner, with the socks carefully rolled up. The branches from the ash tree that lay across the body are the only signs of panic, and they are signs from the killer, not the victim.
Our mysterious stranger may be a careful fellow when it comes to rolling up socks or placing shoes, but if we take a close look at all the digestion evidence, he seems indifferent to getting caught in the act.
We know that Lynne Harper finished her dinner around 5:45 p.m. that night. We also know that digestion stops at death, so her stomach contents provide at least a rough guide as to time of death. We know that the digestive process is usually well underway and the stomach is starting to empty in about two hours (page 314) and we know this was the state of Lynne’s stomach contents at the time of the autopsy.
Dr. Sharpe, described in the book as “an experienced and cautious pathologist” tells the author that he believes Lynne’s digestive system stopped between one and two hours after the meal, so he places the time of death at between 6:45 and 7:45 p.m. (page 317). But he cautions that this is an estimate only, and it is clear on the basis of the current knowledge on the subject that the exact time of death cannot be proved on the basis of digestion alone.
What troubles me is not that death might have happened later on based on the state of the stomach contents (we all agree) but the fact that death would have to take place fairly soon after the 7:15-7:45 window of time suggested by the prosecution at trial. The stranger takes Lynne Harper away in his car, meaning more time is passing, meaning her stomach continues to digest the meal. Yet we know for certain that her stomach was not empty when she died.
We also know for certain that June 9th is a few days short of the longest day of the year. We know that the weather was hot and sunny at the time, evidenced by the cracked, dry ground of the tractor trail beside Lawson’s bush. So it would still be light out by 9:00 that evening, and complete darkness would probably not occur until 9:30, perhaps longer. Unless we drift off into absurdity with these digestion theories, the state of Lynne Harper’s digestion suggests death by 7:45 – 8:45 p.m. at the extreme and likely much earlier. No matter which time is chosen, it is still going to be light outside. The book makes the point that if death occurs outside the time line set by the prosecution, then Truscott is likely innocent based on the time factor alone. But another and far more important point seems to be overlooked. Despite some speculation to the contrary, no one seems to seriously dispute the fact that Lynne Harper went into Lawson’s bush alive and was then killed at the same spot where the body was found. So if Truscott’s story is true, death must still occur shortly after Lynne gets into the car. Keep in mind that Dr. Sharpe gives the 7:45 p.m. time of death as the latest his range, cautioning that the range itself is not precise.
I now see the answer that comes back: some theories extend the possible time of death as late as midnight or even later, assuming a dramatic slowing in Lynne Harper’s digestion process. So we are not even talking about a small window of time, and I should get my facts straight or stop typing.
Well, I am no expert on the Truscott case and I am certainly no expert on stomach contents or the forensics of human digestion. I have read Until You Are Dead, I have read a great deal of the current newspaper accounts of the case, and I have danced around the Internet a bit checking up on digestion theories and other bits of information that I think is relevant to the case. Put a forensic expert in the same room with me and I guarantee you that I will be stammering in ten seconds or less.
My point is not that 7:45 operates as an absolute. As an absolute it is clearly wrong, and if Dr. Penistan gave this evidence at the original trial then he was clearly wrong. If Truscott was convicted solely on that false assumption, then his conviction is clearly wrong and he should get his new trial.
My point is that the most reasonable time of death on all the evidence seems to be that 6:45-7:45 window, the precise period of time that Truscott is with Lynne Harper. This seems to be the general consensus of the experts (not all), as well as the basis for the Supreme Court of Canada decision on the digestion issue. And from what I can tell, this also seems to be the essence of Dr. Penistan’s infamous flip-flop: as a reasonable estimate, it must be seen only in the context of the other evidence and never in isolation as proof of time of death.
Putting all of this together, if we consider the 6:45-7:45 time frame as a reasonable estimate, then, presumably, the further we extend that time frame the less reasonable it becomes. For example, if Dr. Sharpe considered 8:45 an accurate and reasonable estimate of the outside range, then I assume he we would have said 8:45 and not 7:45.
Extending the time of death beyond 7:45 gives Truscott the window of time he needs to create a reasonable doubt. All the theories about his innocence seem to come down to this possibility, this “doubt”. But his alibi has Lynne Harper going down a highway, still alive, in the opposite direction from Lawson’s bush. Is there still doubt when we consider the events that must take place in a relatively limited period of time in order to bring her all the way back, put her in the bush, and cause her death?
It is stretching things to even assume that the killer would reverse direction and return to the intersection where he picked up his victim. But this killer must go a lot further. He must turn at the intersection and head south down the country road, turn left at the tractor trail, drive onto the Lawson property, stop the vehicle, open the door, get out, go over the barbed wire fence, and finally lead his victim to the very spot Butch George picks for his lies. Reasonable doubt is a strict standard, but is there any doubt about how ridiculous this sounds? Forget about the odds of these events happening that quickly, before dark, and in plain sight of everyone on the road. What does your common sense tell you about these events happening at all?
We have a mysterious stranger who lacks brains, and a scenario that just gets sillier as we pile on one implausible assumption after another. Maybe Steven Truscott really did tell Jocelyne to meet him at the bush that night, and then chose Lynne Harper as his substitute. Maybe he did tell his school buddies that he took Lynne into the bush that night, and perhaps he really did tell Dr. Addison “it could have happened” when asked about his own guilt (pages 91 and 204). Maybe that letter to the parole board (“one dreadful mistake does not mean that I will ever make another one – page 372) was not an abstract reference to life behind bars, but a true confession of guilt.
And maybe – let’s go out on a real limb here – maybe Steven Truscott’s “lamentable performance” (page 432) before the Supreme Court of Canada gave those eight justices a good reason to find him, well…less than forthright with the truth: “There were many incredibilities inherent in the evidence given by Truscott before us and we do not believe his testimony” (page 468).
Truscott explains this lamentable performance by saying that his lawyers did not “adequately prepare” him for his testimony (page 432). Think about that one for a moment. Here we have the most notorious criminal case in Canadian history, an unprecedented hearing before the Supreme Court of Canada after an eight year public battle, the best criminal lawyers in the country, all this new expert evidence on human digestion that will exonerate wrongly convicted Steven Truscott – yet no one on the crack defense team thinks to prepare their star client for his testimony? Does this sort of explanation not smack of the very “incredibilities” those Supreme Court judges talk about?
Steven and Lynne were never there – except she is there.
I know, I know. Human digestion is not an exact science and Lynne may have died long after the sun went down. The police bungled everything, all the crown witnesses fudged their evidence, Jocelyne Gaudet and Butch George are liars, and Dr. Penistan should be whipped for his sins. So death does not occur two hours after the meal. It occurs three hours later, or four, or twelve, and Steven Truscott is as innocent as you are. Case closed.
But the case is not closed for me, and at the end of the day I remain baffled. I have this image of a frightened 14-year-old boy being grilled by the police after his 12-year-old friend has been raped and murdered and I want to weep for both of them. That 14 year old is now in his sixties with friends and family and what seems to be an entire nation of support behind him. His 12-year-old friend will be 12 years old forever. If I had a crystal ball that could tell me the absolute truth about the case, I wonder if I would even have the guts to take a look. We will leave the story of Steven Truscott and Lynne Harper on that sad confession.
But before we do, let’s go back to that Wednesday evening in 1959 when the boys have left the bridge and you have taken your walk down to Lawson’s bush. Even if you can’t find a body as you fumble around in the pitch darkness of all the trees and the branches, be patient.
The children have already told you that Lynne Harper must be there, and it is only a matter of time before the stranger shows up.