Phillip James Tallio in an undated photo. He has been behind bars for 34 years. (Rachel Barsky photo)

Phillip Tallio’s lawyers to go ahead with appeal based on “fresh” DNA evidence

The case of convicted murderer Phillip James Tallio continues to receive national media attention.

The case of convicted murderer Phillip James Tallio continues to receive national media attention. Tallio, a Bella Coola man, was sentenced to life in prison with no chance of parole for 10 years in 1983 for the sexual assault and murder of his cousin, toddler Delavina Mack.

Tallio initially pled not guilty to the crime but nine days into his trial his lawyers entered a guilty plea of second-degree murder on his behalf. Tallio has resolutely proclaimed his innocence ever since. As a result, he has been ineligible for parole and has spent the last 34 years behind bars.

If he is found innocent, Tallio will be the longest-serving wrongfully convicted person in Canadian history.

This past June, Tallio won the right to appeal, making history as the longest appeal extension to ever be granted by the courts. Justice Bennett, who granted the extension of time to file an appeal, stated, “In my view the interest of justice demand that Mr. Tallio be permitted to bring his application for further DNA testing and to go forward with this appeal generally.”

Tallio’s appeal was eight years in the making and would not have proceeded without the work of UBC’s Innocence Project. In the documents unsealed by the B.C. Court of Appeal, his legal team claims “there is fresh evidence” from a DNA test result that excludes Tallio as the killer, and provides information “leading to other possible perpetrators.”

DNA testing was not available at the time of Tallio’s conviction in 1984. However, 45 tissue samples from the toddler were kept at B.C. Children’s Hospital. Tallio’s lawyers have stated that a test for male DNA done in 2013 on one sample ruled out Tallio as a suspect. However an additional test on another sample found he “cannot be excluded” as a suspect. But this has not deterred him from going ahead with the appeal.

His lawyer Rachel Barsky says that simply means the second test was inconclusive, given the technology in use four years ago.

“‘’Cannot be excluded’ doesn’t mean a match,” Barsky said. “We’re dealing with a lot of missing information.”

Based on partial DNA, the lawyers state that any male relative could be the killer. Until more DNA testing is done, more suspects remain. This is no easy task in a 34 year old case. There were over dozen items including clothing and blankets containing possible DNA evidence that were present at the trial; these are now lost or missing, according to RCMP.

An additional problem presents itself in the fact that these samples were never intended as DNA evidence, meaning the risk of contamination is high.

A Texas-based DNA expert, Rick Staub, Staub said in an affidavit filed with the court: “If it is agreed that the profile obtained from the (sample) is derived from the perpetrator of the crime, Phillip Tallio could not be that perpetrator.”

After testing excluded Tallio as the contributor of the DNA found in the sample, the RCMP tested the remaining 38 tissue samples from the victim. Male DNA was found on the surface of three of them, which in Staub’s opinion, came from handling contamination rather than criminal activity.

But male DNA was found inside a fourth sample, and this time, Tallio could not be excluded as a possible contributor. However, because male-specific DNA is inherited through the paternal line, Tallio’s uncle, Cyril Tallio Sr., could also not be excluded, Staub explained.

Staub’s affidavit, like others filed with the court in connection with Tallio’s appeal, has not been tested in court nor admitted as evidence.

Tallio’s lawyers have named his uncle, Cyril Tallio Sr., as a possible suspect. He was also at the party during the night of the murder and their submission to the court states that he “had a criminal record related to sexually assaulting children.” He served jail time in the 1990s related to those crimes and died in 2014.

Tallio’s legal team wants the court to order the release of the DNA samples held by the Crown for new testing, but so far, they say the Crown has refused, claiming the victim’s family “has a privacy interest in the sample.”

Tallio could now face months of legal battles over the DNA samples, which his lawyers say must be re-examined as part of his appeal.

Their submission before the B.C. Court of Appeal is simple: “These remaining samples provide the only possibility for DNA to prove Mr. Tallio’s innocence.”

However, the Crown has asserted that they don’t believe these new DNA samples will prove anything. Mary Ainslie, a B.C. Justice Ministry lawyer who had opposed Tallio’s bid to appeal his conviction, said that the Crown’s perspective the hospital tissue samples from the victim’s autopsy won’t be able to prove anything.

She said the male DNA found in other samples are likely the result of contamination and said Tallio is engaging in “wishful thinking.”

None of this has deterred either Tallio or his lawyers in proceeding with the appeal and the review of DNA evidence.

In her decision Justice Elizabeth Bennett of the B.C. Court of Appeal also said that while the evidence convinced her that DNA testing could be a viable ground for appeal, there is a chance that further testing has the possibility to not exonerate Tallio, but to conclusively affirm his guilt in the 1983 crime.

It’s a risk Tallio’s legal team is willing to take.

“Of course, none of us want that to happen,” said one of Tallio’s lawyers, Tom Arbogast.

“But let’s say this just does not turn out how we think it’s going to. Then because of all the questions that have been raised and the extraordinary circumstances, the public will have confidence that justice was done. And that’s an important thing in and of itself.”

For now, Tallio remains behind bars. His lawyers and the Crown will reconvene in the fall to discuss Tallio’s application for further DNA testing.

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