Phillip Tallio was just 17 when he was convicted of murder in 1983 (file photo)

Phillip Tallio was just 17 when he was convicted of murder in 1983 (file photo)

Miscarriage of justice before B.C. teen’s 1983 guilty plea in girl’s murder: lawyer

Tallio was 17 when he pleaded guilty to second-degree murder in the death of his 22-month-old cousin

A lawyer for a man who spent 37 years in prison for the murder of a toddler says the British Columbia Appeal Court should first consider new evidence in the case he believes involved a miscarriage of justice.

Thomas Arbogast said Monday that Phillip Tallio pleaded guilty in 1983 based on “ineffective assistance” from his lawyer at the time.

Tallio was 17 when he pleaded guilty to second-degree murder in the death of his 22-month-old cousin Delavina Mack, who court has heard had been sexually assaulted in a home in the northern community of Bella Coola.

Tallio, now 54, told the court last month that he wasn’t aware of the implications of the plea agreement his trial lawyer had him sign when he was a teenager.

Arbogast said DNA evidence the Crown has rejected because it does not point to Tallio as the perpetrator could have made a difference at his trial because experts have testified it is reasonable, relevant and credible.

“You say that that is the basis on which to set aside a guilty plea, even if the plea was otherwise entered in conformity with the law?” asked Justice S. David Frankel, one of three judges on the appeal panel.

“Yes,” Arbogast replied, referring to three other cases with valid guilty pleas he outlined that were found to be unreliable based on subsequent information.

He said the Crown’s view that a voluntary and valid guilty plea is the end of the matter and requires no further analysis may be acceptable in most cases considered by the Appeal Court, but not in cases like his client’s.

Tallio, who is out on bail, received a life sentence without chance of parole for 10 years as part of a plea agreement. He was never released from prison because he refused to admit his guilt to the parole board.

The opinion of a second psychiatrist was particularly problematic during the trial, Arbogast said.

The Crown and defence counsel relied on the statement, he said.

“That caused an entire string of events to unfold with respect to the plea,” he said, adding that the opinion “could not have been used as proof of the truth in 1983.”

READ MORE: Appeals trial begins for Phillip Tallio, convicted of killing toddler in 1983

The court has heard the second psychiatrist wrote in a letter dated May 17, 1983, that Tallio made incriminating statements about the crime scene.

The first psychiatrist who met with Tallio several times starting when he arrived at a psychiatric institute for a court-ordered assessment on April 25, 1983, found the teen had a low IQ but was not necessarily mentally ill.

Arbogast said Tallio’s compelled placement at the institute the following day was without consent and done on the basis of an assessment of his fitness to stand trial and mental health.

He said questions on whether statements to psychiatrists in that context could be used as proof of the truth were before the courts as far back as the 1960s before amendments in 1992 allowed them to be used to discredit an accused but not as evidence against them.

Arbogast said trial counsel would not have been involved in plea negotiations if the second psychiatrist’s statement “was not in play.”

“There was no other cogent evidence to support guilt that was admissible,” he said.

Rachel Barsky, another of Tallio’s lawyers, said testimony last month from experts suggests DNA tests by a lab in Texas on the girl’s tissue samples taken during an autopsy do not positively point to Tallio as the perpetrator.

Barsky said later testing done at the B.C. Institute of Technology was contaminated.

Camille Bains, The Canadian Press


Like us on Facebook and follow us on Twitter.

Want to support local journalism during the pandemic? Make a donation here.

BC Supreme Court

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Interior Health reported 91 new COVID-19 cases in the region Jan. 20, 2021 and three additional deaths. (Jennifer Smith - Morning Star)
95 new COVID-19 cases in Interior Health, two deaths

Another member of Vernon’s Noric House has passed

The Coldest Night of the Year event will raise money for the local Getting to Home program. Walk virtually or in-person on Feb. 20 – there’s a place for everyone! Photo: Trail Times
Be part of Coldest Night of the Year; be part of a solution for Trail

Proceeds from the Feb. 20 fundraiser will be directed into Getting to Home

KBFR
Driver taken to hospital after hitting ditch near Genelle

Kootenay Boundary first responders attend single vehicle accident, RCMP investigate

Ron Clarke has his MBA and is owner of JBS Business Services in Trail, providing accounting and tax services.
COVID-19: How do you spell retirement?

Here’s a resolution some business owners may have made a few weeks ago, “I aspire to retire.”

Lauriente’s Clothing always made sure to have beautiful displays in the front window of their Rossland Avenue store. Photo: Trail Historical Society
Trail Blazers: Lauriente’s kept locals dressed in the finest fashion

Trail Blazers is a weekly feature in partnership with the Trail Museum and Archives

Toronto Public Health nurse Lalaine Agarin sets up for mass vaccination clinic in Toronto, Jan. 17, 2021. B.C. is set to to begin its large-scale immunization program for the general public starting in April. THE CANADIAN PRESS/Frank Gunn
B.C.’s COVID-19 mass vaccinations expected to start in April

Clinics to immunize four million people by September

Police are searching for an alleged sex offender, Nicole Edwards, who they say has not returned to her Vancouver halfway house. (Police handout)
Police hunt for woman charged in ‘horrific’ assault who failed to return to Surrey halfway house

Call 911 immediately if you see alleged sex offender Nicole Edwards, police say

A screenshot from a local Instagram account video. The account appeared to be frequented by Mission students, and showed violent videos of students assaulting and bullying other students.
Parents, former students describe ‘culture of bullying’ in Mission school district

Nearly two dozen voices come forward speaking of abuse haunting the hallways in Mission, B.C.

Vaccine rollout is focused on health care workers first, especially those dealing with long-term care facilities. (Nathan Denette - Canadian Press)
General public shouldn’t expect vaccines until fall: Interior Health South Okanagan Similkameen

Interior Health focused on vaccinating long-term and first-line care workers

Joe Biden, then the U.S. vice-president, and Prime Minister Justin Trudeau take their seats at the start of the First Ministers and National Indigenous Leaders meeting in Ottawa, Friday, Dec. 9, 2016. THE CANADIAN PRESS/Adrian Wyld
Trudeau, Biden to talk today as death of Keystone XL reverberates in Canada

President Joe Biden opposed the Keystone XL expansion as vice-president under Barack Obama

Prince Edward Island’s provincial flag flies on a flag pole in Ottawa, Friday July 3, 2020. A lozenge plant in Prince Edward Island has laid off 30 workers, citing an “almost non-existent” cold and cough season amid COVID-19 restrictions. THE CANADIAN PRESS/Adrian Wyld
‘Almost non-existent’ cold and cough season: P.E.I. lozenge plant lays off 30 workers

The apparent drop in winter colds across the country seems to have weakened demand for medicine and natural remedies

Robert Riley Saunders. (File)
Disgraced Kelowna social worker faces another class-action lawsuit

Zackary Alphonse claims he was not informed of resources available to him upon leaving government care

A specialized RCMP team is investigating a suspicious trailer, which might have connections to the illicit drug trade, found abandoned outside a Cache Creek motel. (Photo credit: <em>Journal</em> files)
Police probe U-Haul trailer linked to illicit drugs left outside Cache Creek motel

Hazardous materials found inside believed to be consistent with the production of illicit drugs

From the left: Midway RCMP Csts. Jonathan Stermscheg and Chris Hansen, Public Servant Leanne Mclaren and Cpl. Phil Peters. Pictured in the front are Mclaren’s dog, Lincoln and Peters’ dog, Angel. Photo courtesy of BC RCMP
Midway Mounties commended for bringing firewood to elderly woman

Cpl. Phil Peters said he and detachment members acted after the woman’s husband went to hospital

Most Read