After 37 years, child killer convicted in British Columbia to plead wrongful conviction

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One day in October 1983 in Prince Rupert, a coastal town in British Columbia, a first degree murder trial began for a 17-year-old, Phillip Tallio, accused of sexually assaulting and killing his 22-month-old cousin. .According to court documents, a psychologist who spoke with the teenager at the time claimed that Tallio, who came from the tiny First Nations community of Bella Coola, had the mental capacity of a 12-year-old teenager and ” rather blind faith that someone will come and save him. ”

This does not happen.

Instead, in what Tallio’s lawyers claim to be a miscarriage of justice fueled by police ‘tunnel vision’, the ineptitude of a lawyer, and the questionable tactics of a controversial forensic psychiatrist, Tallio pleaded guilty to second degree murder.

This week at the British Columbia Court of Appeal, Tallio’s lawyers will attempt to right this alleged injustice – asking judges to allow the 54-year-old to withdraw the plea he filed in 1983 and order an acquittal or stay of proceedings.

“Always very, very relevant”

If Tallio wins, the nearly four decades he has spent in prison will be the longest time a Canadian has served for a wrongful conviction.

“What adds to the magnitude of the Tallio case is that it touches on so many issues that are still very, very relevant 37 years later,” says Tallio’s lawyer Rachel Barsky.

“Like the racism towards Indigenous people and the cracks in the justice system and police services and how we police better – there’s so much that we’re still grappling with that, in hindsight, was really at first. plan of this case. “

A cousin holds a photo of Delavina Mack, 22 months old when she died in 1983. Tallio was arrested within 24 hours. (Ben Nelms / CBC)

Tallio is expected to speak on Tuesday for the first day of what is expected to be a month-long hearing. The first three weeks of the appeal will involve the introduction of new evidence – which is rare in an appeal – followed by submissions on the law.

The account of the case that accompanies Barsky’s written arguments reads like the plot of a podcast or TV series about a real crime like Netflix’s. Make a murderer – with alternative suspects, new witnesses and new DNA evidence.

Barsky trained in investigative journalism before entering law school, where she first encountered the Tallio case as part of the University of British Columbia’s Innocence Project. She was called to the bar in July 2014 and took the case with her into private practice.

“I never ended up passing the case on, because I was really involved in the investigation and really thought there was something I needed to see through,” Barsky said.

“It’s so part of me that it will be a new chapter when the work on this case is finished.” “

‘Really worried and scared’

According to the defense arguments, Tallio was the person who discovered the body of Delavina Mack at the home of the child’s grandparents in the early hours of April 23, 1983.

She had been sexually assaulted and suffocated.

The victim’s father told police that he and his wife asked Tallio to watch her – something his wife later denied in a preliminary hearing.

Rachel Barsky, one of Tallio’s lawyers, has been working on the case since she was a law student. She was called to the bar in 2014 and will be before the appeals court to plead for her client’s freedom this week. (CBC)

The night before had been full of partying in Bella Coola, but Tallio hadn’t been drinking.

Witnesses who were not questioned by police at the time said they saw the teenager walking calmly towards the house and then fleeing from the scene looking “really worried and scared” a few minutes later.

Tallio’s lawyers focused on two other suspects: his uncle, Cyril, was convicted in the 1990s for sexually assaulting young girls, and Delavina’s great-grandfather, Wilfred, who was known to have do the same. Both men are now dead.

Witnesses uncovered by the defense claimed that a box of Wilfred’s bloody clothes was burned on the day of the murder and that Cyril was seen carrying garbage bags from the house where the child was killed and was heading towards a location where plumes of smoke were subsequently observed.

‘Objectively dangerous and unreliable’

The RCMP descended on Bella Coola around noon that day and by the time they left 24 hours later they had Tallio in custody and what they claimed to be a confession.

In his first two interrogations, Tallio maintained his innocence; both have been recorded,

But the RCMP officer who allegedly took his confession in a third round of questioning said the machine malfunctioned when the teenager admitted his guilt.

Tallio was 17 when he was sentenced. His lawyers want to appeal his conviction and withdraw his guilty plea. (Submitted by Rachel Barsky)

The confession was ruled involuntary and inadmissible, but while Tallio awaited trial, a provincial court judge referred him to the BC Forensic Psychiatric Institute for an assessment of his mental health.

While there, a psychiatrist named Dr Robert Pos claimed that after reviewing the case against him, he asked Tallio a question to which Tallio allegedly gave answers suggesting he was guilty.

According to the appeal documents, a psychiatrist who worked with Pos said his methods were widely viewed as “objectively dangerous and unreliable.” Pos would have believed he could distinguish psychopaths by the bulge of their veins and the way the hair on his own neck stood on end in their presence.

But the defense’s arguments state that Tallio’s trial lawyer viewed Pos’s testimony as a bargaining chip, because without that, the prosecution would have no record, which meant it would be likely to consider an argument in case the judge is asked to exclude it.

“The unconscious fight against the murder charge was over”

Tallio, according to the documents, says he “didn’t understand much of what was going on” but “trusted” his lawyer.

“Phillip had no idea that ‘pleading guilty’ meant he was admitting to raping and killing his cousin,” the documents say.

“Phillip says he also didn’t know his fight with the murder charge was over. He didn’t know the trial was actually over until months later. “

Rhoda Desjarlais says her family is troubled by Tallio’s call. (Ben Nelms / CBC)

The plea deal saw Tallio receive a life sentence with the possibility of parole after 10 years. But he was never released because he refused to admit his guilt to the parole board.

Tallio was released on bail under strict conditions in January 2020 pending the outcome of his appeal.

The prosecution will argue that Tallio’s plea was voluntary and that he had the mental capacity to instruct his lawyer.

According to court documents, the prosecution also claims that the case would have been referred to a jury with or without the testimony of psychiatrist Pos, to which point Tallio’s presence at the crime scene would have been “highly incriminating”.

‘We do not understand’

Delvina’s family did not comment on the appeal, but said they plan to appear in court. In the past, they have spoken to CBC News about the pain caused by both the murder and Tallio’s attempt to reverse the course of his conviction.

“People have to understand that Delavina was an innocent little girl and came from a very loving family,” her cousin Rhoda Desjarlais told a reporter during Tallio’s bail hearing.

“We don’t understand why history changed after recognizing the crime. ”

Tallio’s appeal concerns his request to withdraw his guilty plea.

His attorneys plan to argue that this was not “unequivocally willful and informed” and that it was a miscarriage of justice that occurred because a provincial judge lacked the jurisdiction to send Tallio back to the forensic institute where he allegedly spoke to Pos.

They also claim that Tallio’s lawyer at the time of his trial was ineffective as he failed to realize the psychiatrist’s testimony would not have been admissible – unnecessarily entering a plea.

Barsky says they will also argue that the new DNA evidence excludes Tallio as the perpetrator and that there is evidence that the original investigation was “manifestly inadequate and that others committed the crime and covered it up.” .

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