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In Depth

Steven Truscott

The search for justice

July 7, 2008

Police charged 14-year-old Steven Truscott three days after finding his schoolmate's body.

In 1959, he was sentenced to be hanged at age 14 for a schoolmate's murder, becoming Canada's youngest death-row inmate. His case, one of the most famous and controversial in Canadian judicial history, helped spur Canada to abolish the death penalty. After the original conviction, Steven Truscott spent four months in the shadow of the gallows until his death sentence was commuted to life imprisonment. Paroled in 1969, Truscott disappeared into an anonymous existence in a southern Ontario city.

On Aug. 28, 2007 — 48 years later — the Ontario Court of Appeal unanimously overturned that conviction, declaring the case "a miscarriage of justice" that "must be quashed" and acquitted Truscott. The judges went on to say, however, that "the court is not satisfied that the appellant has been able to demonstrate his factual innocence."

Shortly after the decision was released, then Ontario attorney general Michael Bryant told reporters the Crown has no plans to appeal and offered an apology to Truscott.

In July 2008, the Ontario government announced it would pay Truscott $6.5 million in compensation for his ordeal. "We are doing what we can to bring to the conclusion this remarkable aspect of Mr. Truscott's life's journey," Chris Bentley, Ontario's attorney general at the time, said.

Case for acquittal

Steven Truscott, appearing on CBC�s The National in 2001, has always said he is innocent.

After a public campaign calling for his exoneration � buoyed by a book scrutinizing the conduct of his trial and a 2000 CBC's The Fifth Estate documentary where Truscott publicly proclaims innocence � the Ontario Court of Appeal conducted a judicial review of his case. Witnesses took the stand between June 19, 2006, and July 7, 2006.

The review hinged on fresh evidence using forensic entomology � pinpointing the time of 12-year-old Lynne Harper's death by the larval development of insects. In Truscott's 1959 murder trial, the time of death was pegged between 7 and 7:45 p.m., which pointed to Truscott as the murderer.

During the three week review, some of the forensic and pathology experts cast doubt on coroner John Penistan's key forensic evidence used to convict Truscott. Witness accounts not included in the original police case � a strange car seen near the woodlot where Harper was found, the night she was murdered � came to light. Old testimony by key witnesses in the Crown's original case were refuted.

But even before new testimony was presented to the Ontario Court of Appeal, a growing number of people had been persuaded that Truscott had been wrongfully convicted after a police investigation that critics say was too hasty and ignored some witnesses and possible suspects.

In Jan.-Feb. 2007 a panel of judges from the Ontario Court of Appeal again heard testimony as Truscott asked that he be cleared of the charges once and for all. The hearings were televised online by CBC.

Quick police probe, two-week trial

It was a hot, muggy evening on June 9, 1959, when Truscott gave his classmate, 12-year-old Lynne Harper, a short lift on his bicycle near an air force base outside Clinton, Ont.

Lynne Harper, 12, had been raped and strangled.
Two days later, searchers found the girl's body in a wooded grove near the town, about 180 km west of Toronto. She had been raped and strangled.

Truscott was the last known person to have seen her alive.

Within two days, police charged the teenager with her murder. After a trial that lasted only 15 days, he was found guilty and sentenced to be hanged.

Three decades later, Truscott remembered those days in a jail cell in Goderich, Ont., when he feared he would feel the noose before his 15th birthday.

"I woke up one day and somebody was building something outside the wall," he told The Fifth Estate.

"You could hear the hammering, and I thought they were building a scaffold. And it's just kind of living in terror, and every day you expect it to be your last."

Truscott's sentence was commuted to life imprisonment and he spent the next 10 years behind bars.

The case immediately provoked controversy, not only because of Truscott's tender years but also because some doubted his guilt.

Uproar leads to Supreme Court review

In the spring of 1966, a book written by Isabel LeBourdais – The Trial of Steven Truscott – attacked the rapid police investigation and trial, calling into question a justice system that many people then considered infallible.

Her argument that the court had erred and sentenced an innocent teen to death made front-page headlines and sparked public demonstrations. The resulting uproar in Parliament led Lester Pearson's Liberal government to order a Supreme Court review.

Canada's top court examined the Truscott case in 1966, not to determine his guilt or innocence but to decide whether he should have a new trial. The judges ruled 8-1 to uphold the verdict.

While Truscott remained in prison for three more years, many experts believe the controversy over his case led to Canada abolishing the death penalty in 1976.

Meanwhile, Truscott adopted a new name and settled in Guelph, Ont., where he worked as a millwright, married and raised three children.

2000 documentary raises more doubts

Steven Truscott talks with Linden MacIntyre, from the CBC�s the fifth estate.
Although the Truscott name was well known in Canada, he remained anonymous until March of 2000, when the CBC's The Fifth Estate broadcast a documentary about his case.

The program presented new evidence that, when added to that uncovered by LeBourdais and others since the original trial, built a case that police may have laid charges too quickly, while playing down some witnesses and ignoring other potential suspects.

Truscott said he dropped Harper off at a highway, then saw her hop into a strange car as he pedalled away. He said Harper, the daughter of an officer on the Clinton base, told him she had squabbled with her parents and planned to hitch a ride somewhere.

The police maintained that Truscott killed her before reaching the highway and left her nearly naked corpse in the woods.

Their case, built on purely circumstantial evidence, hinged on the testimony of a pathologist who testified that Harper died between 7:00 and 7:45 p.m. � an extremely precise determination even by today's forensic standards.

In 1966, Penistan had second thoughts and published a review of his autopsy that opened the time frame to a 12-hour window.

The Fifth Estate found that police also dismissed testimony from witnesses, including some who insisted they saw Harper and Truscott reach the highway.

Other suspects ignored?

The police and military never seriously considered other suspects that should have been flagged, The Fifth Estate said.

Air Force Sgt. Alexander Kalichuk
For example, the journalists uncovered old military files on Alexander Kalichuk, a heavy drinker with a history of sexual offences who lived within a 20-minute drive of the base. The air force sergeant had come to police attention after trying to lure a 10-year-old girl into his car about three weeks before Harper disappeared.

Another man, an electrician with a conviction for rape, worked regularly at the base and knew the Harpers.

The program suggested the Ontario Provincial Police may have rushed to judgment with Truscott, in an echo of police actions that led to the wrongful convictions of David Milgaard and Guy Paul Morin.

While DNA testing helped overturn those convictions, no DNA evidence that can be analyzed exists in Truscott's case.

Campaign to exonerate Truscott

Truscott has always maintained his innocence, voluntarily submitting in prison to psychiatric probes that included truth serum and LSD.

When he went public in 2000, he said he wanted to clear his name for the sake of his children and grandchildren.

His case was taken up by the Association in Defence of the Wrongly Convicted, a group that includes lawyers who helped establish the innocence of Morin, Milgaard and Donald Marshall.

Truscott and the association's lawyers filed a formal appeal with the federal justice minister in November of 2001, asking for a formal review of the case. In a 700-page legal brief, they argued that the police used tunnel vision to zero in on Truscott, ignoring important witnesses and other suspects.

Two months later, the federal justice minister appointed a former Quebec judge, Fred Kaufman, to assess the claim under Section 690 of the Criminal Code.

Kaufman, who headed an inquiry into the wrongful murder conviction of Morin, can recommend that the case be retried or reviewed by an appellate court. He can also recommend a pardon.

Kaufman's report went to the justice minister in the spring of 2004. On Oct. 28, 2004, the federal Minister of Justice, Irwin Cotler, referred the case to the Ontario Court of Appeal for review.

"I have determined that there is a reasonable basis to conclude that a miscarriage of justice occurred in this case," Cotler said.

Ontario Court of Appeal review

Testimony in the three-week review supported some of the criticisms of the 1959 murder trial made in The Fifth Estate documentary, but not all of it pointed to Truscott's exoneration.

Retired OPP superintendent Harry Seyeau, who helped convict Truscott in 1959, testified that he and his police colleagues did not inquire about existing sexual predators with nearby OPP detachments, Crown offices, or the Royal Canadian Air Force. The farmer who owns the property where Harper's body was found, Bob Lawson, said he saw a strange car parked near his fence the night the 12-year-old disappeared. Lawson told the court he went to the guardhouse at the Royal Canadian Air Force, but the officer on duty wasn't interested. He also testified that Jocelyn Gaudet — a key child witness who said Truscott set a date to meet her in the woods on the night of June 9 — came to his farm and asked him to change his testimony to match hers.

Lawson wasn't the only witness who cast doubt on Gaudet's testimony, which gave ammunition to the prosecution. Sandra Stolzmann testified that Gaudet admitted to lying under oath in Truscott's trial to her and a group of fellow resident nurses in Montreal. Stolzmann also told the court that Gaudet suggested a man who was spotted driving a yellow car in the area should have been considered a prime suspect. Testimony from another nursing co-worker, Elizabeth Hulbert, echoed Stolzmann's account.

However, Karen Jutsi, who was nine years old when she testified in Truscott's trial, said her original statement was incorrect. At the murder trial, Jutsi, whose maiden name is Daum, said she was on a bridge when she saw Truscott on a bicycle giving a ride to Harper on a country road sometime after 7 p.m. on June 9, 1959. She told the Ontario Court of Appeal in 2006 that she was not on a bridge when she saw Truscott, but near Lawson's bush where Harper's body was later found. Jutsi said she was shocked when she read her statement years later, because it was wrong.

But the bulk of the witnesses focused on determining Harper's time of death, a detail that could either implicate or rule out Truscott as Harper's killer.

Both the prosecution and the defence presented pathology and entomology experts. Some backed up Penistan's original findings, some refuted them and the methods used. But all cast doubt on the narrow time frame of 7:00 to 7:45 p.m. on June 9 for Harper's death.

Renowned U.K. pathologist Bernard Knight — who wrote one of the standard textbooks for pathologists — criticized Penistan's use of stomach contents to determine when Harper died. "It's so inaccurate it is hardly worth doing," he said. "There are so many errors in it that it's impossible to give an accurate time of death." Ontario's chief pathologist Michael Pollanen testified that there wasn't enough evidence to pinpoint Harper's death, and that she could have died a day later than the original finding. Michigan pathologist Dr. Werner Spitz, with more than 50 years experience in the field, told the court Penistan wasn't equipped to evaluate the time of death. Spitz praised Penistan's methods for being advanced for the time, but said, "Maybe he was wrong."

Other expert witnesses used maggots collected from Harper's body in 1959 and today's expertise to establish when she died (larvae are deposited on the body shortly after death.)

Elgin Brown, a biologist working at the Ontario attorney general's crime lab at the time of the murder, told the court that maggots found on Harper's body probably hatched at 2:30 p.m. on June 10, 1959. He estimated that because the bugs were in the first stage of development, they were laid earlier that morning. Forensic entomologist Sherah VanLaerhoven estimated that insects started laying eggs or larvae on Harper's body between 11 a.m. June 10 and 8 a.m. the following morning. This time frame would rule out Truscott as her killer, but VanLaerhoven couldn't rule out the possibility that Harper died before sunset June 9.

Dr. Neal Haskell, a forensic entomology professor from Purdue University in Indiana, testified that larvae must have been deposited on the 12-year-old's body between 9 p.m. and 9:30 p.m. He said Harper could have died anywhere within a few minutes or two hours before this — giving weight to the time interval Penistan originally determined.

However, Haskell later re-evaluated his statements. Haskell said that a certain family of flies, flesh flies, do not land on a body less than 24 hours after a person died — a key part of his estimate of Harper's death. But Truscott's lawyers presented one of Haskell's reports on a 1992 murder where he concluded that flesh flies landed on a woman's body within the first 12 hours. Haskell was also questioned about a voicemail he left with Ontario Provincial Police in 2005, saying he would cast doubt on Truscott's innocence if he was put on the stand. Haskell did not deny leaving the message, but said he was only interested in pinpointing the time of Harper's death.

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