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

The Vernon Public Art Gallery's new Regional Reach program which sends supplies and lessons to classes, has been a hit in the North Okanagan classrooms. (VPAG photo)
Travelling art kit a hit in North Okanagan schools

Art Gallery’s new Regional Reach program delivers art education to the classrooms

A kaleidescope of colours was captured over Lake Country Sunday, Feb. 28. (Wendey Innes-Shaw photo)
Colourful close to month with North Okanagan sunset

From all angles: Vernon and Lake Country photographers capture sunset Feb. 28

(File photo)
UBCO introduces another reading break in November

The break only affects the Okanagan campus

The Okanagan Screen Arts Society is set to take over Vernon’s historic Towne Cinema on 30th Avenue June 1 as fundraising for building upgrades is a third of the way to its goal. (Photo contributed)
Historic Vernon cinema rolling into society’s hands

Okanagan Screen Arts Society will take over and run with volunteers the Towne Cinema starting June 1

A student from Dawson Creek is the winner of Tolko’s Orange Shirt Day design contest for 2021. (Tolko photo)
Vernon-based Tolko contest features northern winner

Student from Dawson Creek beats out entries Canadawide for Orange Shirt Day design contest win

Langley resident Carrie MacKay shared a video showing how stairs are a challenge after spending weeks in hospital battling COVID-19 (Special to Langley Advance Times)
VIDEO: Stairs a challenge for B.C. woman who chronicled COVID-19 battle

‘I can now walk for six (to) 10 minutes a day’

Pastafarian Gary Smith, pictured here dressed as a pirate, wanted to wear his tricorn (also pictured here) in his driver’s licence photo, arguing that the display was a religious observance. Photo: Facebook
B.C. Pastafarian loses Supreme Court fight to wear pirate hat in driver’s licence photo

Gary Smith of Grand Forks, put his case to the Supreme Court in Rossland in early February

Provincial health officer Dr. Bonnie Henry updates B.C.’s coronavirus situation, May 8, 2020. (B.C. government photo)
B.C.’s weekend COVID-19 cases: 532 Saturday, 508 Sunday, 438 Monday

Fraser Health still has most, eight more coronavirus deaths

City council passed resolution in support of an expansion of the licence area at Salmon Arm’s Marionette Winery for the inclusion of a lounge area. (Marionette Winery/Facebook)
Salmon Arm council supports lounge addition at Shuswap winery

Marionette Winery expanding licence area to host small gatherings

(File photo)
UBCO introduces another reading break in November

The break only affects the Okanagan campus

An injured skier was helivaced from Apex Mountain Resort to Kelowna General Hospital Monday, March, 2021. (Linda Geggie / Facebook)
Injured skier helivaced from Apex Mountain Resort

The skier was taken to Kelowna General Hospital

B.C. Attorney General David Eby speaks in the legislature, Dec. 7, 2020. Eby was given responsibility for housing after the October 2020 provincial election. (Hansard TV)
B.C. extends COVID-19 rent freeze again, to the end of 2021

‘Renoviction’ rules tightened, rent capped to inflation in 2022

Face mask hangs from a rear-view mirror. (Black Press image)
B.C. CDC unveils guide on how to carpool during the pandemic

Wearing masks, keeping windows open key to slowing the spread of COVID-19

Churches, including Langley’s Riverside Calvary Church, are challenging the regulations barring them from holding in-person worship services during COVID-19. (Langley Advance Times file)

Most Read