A unanimous decision by the B.C. Court of Appeal judges has ordered the release of a sealed DNA sample from the 35-year-old murder case for further testing.
Phillip Tallio, a resident of Bella Coola, was convicted of suffocating his cousin, 22-month-old Delavina Mack, at a party in Bella Coola, B.C., in 1983. He was 17 at the time.
He originally pleaded not guilty, but his lawyers changed that plea to guilty nine days into his trial. Tallio was convicted of second-degree murder in 1984.
His lawyers are arguing that the evidence could prove he was wrongly convicted – and could potentially prove another relative was the real killer.
Tallio has been described as having an intellect “far below his years,” and he has maintained his innocence for 35 years, which has resulted in him being repeatedly denied parole.
Last year, Tallio’s lawyers successfully applied to appeal his conviction – more than three decades after the appeal deadline expired.
Tallio’s case is being spearheaded by a group called the Innocence Project, a non-profit legal organization that is committed to exonerating wrongly convicted people with DNA evidence.
Their case rests upon dozens of tissue samples taken from Mack’s body that have been kept at B.C. Children’s Hospital.
At the time the samples were taken, DNA testing did not exist. There is a chance the samples could still prove inclusive because of time and contamination.
Two samples have already been tested. The first test showed that Tallio was “excluded” from one sample but “not excluded” from another. His lawyers said that simply means the second test was inconclusive, given the technology in use at the time.
A second partial sample tested in 2013 from male DNA concluded the killer could have been any of Tallio’s male relatives.
Tallio’s legal team point out that his uncle, Cyril Tallio Sr., was also at the party where Mack was killed. DNA testing has said he “cannot be excluded” as a suspect. Cyril Tallio, Sr. died in 2014.
In their reasons for judgment, the B.C. Court of Appeal judges said further, more modern testing could also differentiate Tallio’s DNA from that of a relative who is “another potential suspect.”
“It is in the interests of justice to allow the testing to occur,” the judgment reads.
Tallio’s lawyer, Rachel Barsky, said that every chance for potential exoneration needs to be seen through.
“This is about doing our due diligence for Phillip Tallio’s case and making sure we do everything humanly possible to advance all the fresh evidence we need to advance,” Barsky said.
The RCMP will escort the latest DNA sample to the Netherlands Forensic Institute in The Hague for testing. It is known as one of the world’s leading forensic labratories.