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

A rolled-over car was spotted in a ditch along Sooke Road near the border of Langford on the morning of Sunday, Jan. 24. (Black Press Media photo)
Car ends up in ditch along Sooke Road Sunday morning

Single vehicle spotted rolled-over just after 10 a.m. on Jan. 24

Steve Smith’s image of two sibling adolescent grizzly bears playfighting in the Chilko River in the B.C. Interior earned him best of show at the prestigious Lion’s Gate Celebration of Nature club competition for 2020-21. (Photo by Steve Smith)
Victoria Camera Club captures top spot in prestigious nature and wildlife competition

Saanich Peninsula photographers part of award-winning team

Downtown Victoria and the Inner Harbour are part of a corridor that also includes much of urban Saanich that is part of the Greater Victoria 2030 District, a sustainable buildings climate initiative announced recently. (Black Press Media file photo)
Ramping up energy efficiency in Greater Victoria buildings goal of new group

Greater Victoria 2030 District part of North American network of cities working to reduce emissions

Oak Bay High Grade 10 students Oliver Wakely and Alex Joiner with the new scoreboard to soon be installed on the grass turf. Fundraising from the Oak Bay Barbarians rugby alumni and Oak Bay Fire Fighters Charitable Foundation. (Travis Paterson/News Staff)
Oak Bay High alumni buy new scoreboard

Scoreboard to be installed on grass field

U.S. Senator Bernie Sanders sits in on a COVID-19 briefing with Dr. Bonnie Henry, provincial health officer, and Adrian Dix, B.C. minister of health. (Birinder Narang/Twitter)
PHOTOS: Bernie Sanders visits B.C. landmarks through the magic of photo editing

Residents jump on viral trend of photoshopping U.S. senator into images

Jennifer Cochrane, a Public Health Nurse with Prairie Mountain Health in Virden, administers the COVID-19 vaccine to Robert Farquhar with Westman Regional Laboratory, during the first day of immunizations at the Brandon COVID-19 vaccination supersite in Brandon, Man., on Monday, January 18, 2021. THE CANADIAN PRESS/Tim Smith - POOL
Top doctor urges Canadians to keep up with COVID measures, even as vaccines roll out

More than 776,606 vaccines have been administered so far

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
B.C. 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

Dr. Jerome Leis and Dr. Lynfa Stroud are pictured at Sunnybrook Hospital in Toronto on Thursday, January 21, 2021.THE CANADIAN PRESS/Frank Gunn
‘It wasn’t called COVID at the time:’ One year since Canada’s first COVID-19 case

The 56-year-old man was admitted to Toronto’s Sunnybrook Health Sciences Centre

An Uber driver’s vehicle is seen after the company launched service, in Vancouver, Friday, Jan. 24, 2020. Several taxi companies have lost a court bid to run Uber and Lyft off the road in British Columbia. THE CANADIAN PRESS/Darryl Dyck
Taxi companies lose court bid to quash Uber, Lyft approvals in British Columbia

Uber said in a statement that the ruling of the justice is clear and speaks for itself

Nanaimo Regional General Hospital. (News Bulletin file photo)
COVID-19 outbreak declared at Nanaimo hospital

Two staff members and one patient have tested positive, all on the same floor

A long-term care worker receives the Pfizer vaccine at a clinic in Nanaimo earlier this month. (Island Health photo)
All Island seniors in long-term care will be vaccinated by the end of this weekend

Immunization of high-risk population will continue over the next two months

A 75-year-old aircraft has been languishing in a parking lot on the campus of the University of the Fraser Valley, but will soon be moved to the B.C. Aviation Museum. (Paul Henderson/ Chilliwack Progress)
Vintage military aircraft moving from Chilliwack to new home at B.C. Aviation Museum

The challenging move to Vancouver Island will be documented by Discovery Channel film crews

A video posted to social media by Chilliwack resident Rob Iezzi shows a teenager getting kicked in the face after being approached by three suspects on Friday, Jan. 22, 2021. (YouTube/Rob i)
VIDEO: Security cameras capture ‘just one more assault’ near B.C. high school

Third high-school related assault captured by Chilliwack resident’s cameras since beginning of 2021

Most Read