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

Cathy Grace, principal of Parkside Centennial, and Susan Cairns, executive director of the Langley School District Foundation, show off a treat donated to the staff with the school mascot. (Ryan Uytdewilligen/Aldergrove Star)
PHOTOS: Leadership program members deliver cake and snacks to Parkside Elementary

$1,250 was raised by the four group members who wanted to help feed hungry students

Peterson, owner of Velocity Cycling in Walnut Grove, said it’s still hard to get enough bikes and parts, more than a year into the pandemic-inspired cycling boom. (Matthew Claxton/Langley Advance Times)
VIDEO: Langley bike shops still swamped by would-be riders

It can be months to order a simple new bicycle due to COVID-19

Legion branch 265 president Doug Hadley shows off the green space where food service can continue via outdoor dining. (Ryan Uytdewilligen/Aldergrove Star)
Aldergrove legion branch #265 preparing to open patio dining on back lawn

Branch president Doug Hadley said COVID-19 restriction have hurt clientele

.
LETTER: Glaciers disappearing faster than in previous decades, Langley student writes

Grade 7 students at Gordon Greenwood Elementary were tasked with writing about climate change.

Pilots from the Canadian Museum of Flight in Langley were unable to take part in the actual Vimy Ridge centennial tribute in France in 2017, and similarly they were grounded today – the 103rd anniversary of the battle. This time due to weather conditions. (Canadian Museum of Flight/Special to Langley Advance Times)
Vimy Ridge flyby tribute just not in the cards?

This time, for a different reason, Canadian Museum of Flight pilots couldn’t take to the air – again

B.C. Health Minister Adrian Dix and Premier John Horgan describe vaccine rollout at the legislature, March 29, 2021. (B.C. government)
1,262 more COVID-19 infections in B.C. Friday, 9,574 active cases

Province’s mass vaccination reaches one million people

Two-year-old Ivy McLeod, seen here on April 9, 2021 with four-year-old sister Elena and mom Vanessa, was born with limb differences. The family, including husband/dad Sean McLeod, is looking for a family puppy that also has a limb difference. (Jenna Hauck/ Chilliwack Progress)
B.C. family looking for puppy with limb difference, just like 2-year-old Ivy

Ivy McLeod born as bilateral amputee, now her family wants to find ‘companion’ puppy for her

Emergency crews on scene after a small plane crashed in a grassy area on the northeast side of Boundary Bay Airport Saturday morning (April 10). A freelancer said the plane caught fire and one person was transported to hospital by BC Emergency Health Services. (Photo: Shane MacKichan)
1 taken to hospital after plane crash at Metro Vancouver airport

Plane appears to have suffered ‘significant’ damage, says freelancer

A vehicle that was driven through the wall of a parkade at Uptown Shopping Centre and into the nearby Walmart on April 9 was removed through another hole in the wall later that night. (Photo via Saanich Police Department and Ayush Kakkar)
Vehicle launched into B.C. Walmart removed following rescue of trapped workers

Crews cut new hole in parkade wall to remove vehicle safely

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

Four members with Divers for Cleaner Lakes and Oceans were out at Cultus Lake on March 28 and 29 hauling trash out of the waters. (Henry Wang)
PHOTOS: Out-of-town divers remove 100s of pounds of trash from Cultus Lake

Members of Divers for Cleaner Lakes and Oceans hauled out 470 pounds of trash over two days

As of Saturday, April 10, people born in 1961 are the latest to be eligible for a COVID-19 vaccine. (Black Press files)
B.C. residents age 60+ can now register to get their COVID-19 vaccine

Vaccine registration is now open to people born in 1961 or earlier

A new saline gargle test, made in B.C., will soon be replacing COVID-19 nasal swab tests for kids. (PHSA screenshot)
Take-home COVID-19 tests available for some B.C. students who fall ill at school

BC Children’s Hospital plans to provide 1,200 kits to Vancouver district schools this April

The 10-part Netflix series Maid, which is being exclusively shot in Greater Victoria, was filming near Prospect Lake in Saanich last month. (Photo courtesy Fred Haynes)
Province announces $150,000 towards film studio, fulfilling B.C. NDP promise

Investment to fund movie studio feasibility study at Camosun College

Most Read