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

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VANCOUVER — 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."

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.

This report by The Canadian Press was first published Nov. 23, 2020.

Camille Bains, The Canadian Press