Wrongful conviction appeal after 34 years in prison

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A BC man who has spent 34 years in custody is appealing his conviction. Phillip Tallio, a Nuxalk First Nation man from Bella Coola, BC, was convicted when he was only 17 years old. Now 51, Mr. Tallio has spent more than half his life in prison for a crime he continues to maintain he did not commit.

At a party Mr. Tallio attended in 1983, a young child was sexually assaulted and died from suffocation. Mr. Tallio was convicted for the crime and sentenced to life in prison, but his conviction is being now being challenged with help from UBC’s Innocence Project. Documents have been filed at the British Columbia Court of Appeal stating that Mr. Tallio’s plea was involuntary.

When Mr. Tallio was charged, he entered a plea of “not guilty”, but nine days into the trial his counsel entered a guilty plea on his behalf. The documents filed at the BC Court of Appeal say that Mr. Tallio did not knowingly instruct his counsel to do so.

Mr. Tallio had a troubled past, an orphan who lived at several foster homes and had suffered child abuse. He had low intellectual capacity, having the comprehension of a 10-12 year-old. The trauma in his personal life would have made him more susceptible to submit to authority and limit his ability to understand what was happening in court, says a forensic psychologist that tested Mr. Tallio. Complex phrases like “you are aware that you are not obliged to say anything, but anything that you do say may be given in evidence” would be completely lost on him.

The voir dire (a hearing to determine the admissibility of evidence) at the BC Supreme Court in 1983 noted that when police picked up Mr. Tallio on the morning of the murder, he was told of his right to retain and instruct counsel. Mr. Tallio did not act on this right. Later that day, when a lawyer tried to get in touch with him, the police repeatedly refused her getting on the phone with him. Evidence suggests that the police told the lawyer that she could only contact Mr. Tallio if he asked for counsel.

Mr. Tallio maintained his innocence ten hours into his detention, even though the interviewing constable continuously suggested to him that he was not being truthful. When an investigator took over the interview, he brought a Dictaphone and microphone into the room, but no tape was recorded. The 1983 ruling said there was evidence the tape recorder had malfunctioned. After 35 minutes in the interview room, Mr. Tallio had signed a statement written by the investigator. The trial judge from the voir dire in 1983 held that he had a reasonable doubt on the voluntariness of the statement. Ultimately, the jury found Mr. Tallio guilty, despite of the evidence that suggested his confession was not voluntary.

The issues in the case include “what was going on with forensic psychiatry at the time, DNA issues and the treatment of Indigenous peoples,” said Rachel Barsky, Mr. Tallio’s co-counsel. Archie Pootlass, who was the chief counsellor of the Nuxalk Nation at the time of the murder, said that “he believed it was not atypical at the time for police not to trouble themselves with connecting suspects with lawyers, or even letting them know their legal rights.”

Mr. Tallio was never released on parole in his 34 years behind bars because he continued to maintain his innocence. Ms. Barsky said that Correction Services Canada and the Parole Board would view his maintenance of innocence as Mr. Tallio not taking responsibility for his offence.

Mr. Tallio has spent longer in prison than Donald Marshall Jr and David Milgaard combined. In June Mr. Tallio’s lawyers are going before the BC Court of Appeal to bid for the appeal to proceed.

This blog post was written by a CCLA summer student. Views expressed do not necessarily reflect the view of the CCLA.