The long road to freeing the innocent
After a decade of work, UBC Innocence Project sends its first case to court
While wrongful conviction cases seem dramatic in Hollywood movies, the day-to-day reality is far from glamorous.
It is more about inventorying “boxes upon boxes” of police documents, mounting court challenges to see a psychiatrist’s letter, and shuffling through musty file folders, said Tamara Levy, who has spent most of the last decade focused on this work. “It can be really tedious.”
The case of Phillip James Tallio, reported this week by Postmedia, has brought attention to the UBC Innocence Project at the Allard School of Law, which Levy cofounded in 2007. Tallio has been in jail since 1983 for the murder of a child. But since the beginning of his sentence, he has steadfastly proclaimed his innocence, according to the lawyers trying to appeal his conviction. Next month, Tallio’s case will go before a judge on the preliminary question of whether the court should consider the case.
In recent years, the topic of wrongful conviction investigations has been in the pop culture spotlight through the massive popularity of shows like Serial and Making a Murderer.
“Surprisingly, while there is more public interest and awareness, it has not translated into any more applications to our project by convicted individuals, or more funding offers by concerned citizens,” Levy said.
“I think these popular shows for the most part reflect how uncertain the evidence can be at times and how difficult it is to collect all the evidence to determine what happened in any given case,” she said. “Prosecutors and police have not set out to convict an innocent person. There is public pressure and often a quick rush to judgment about who is guilty of a particular crime. This is where mistakes are made.”
Since the UBC Innocence Project began accepting claims of wrongful conviction in September 2017, it has received more than 700 inquiries. It is currently investigating 20 cases, all of which involve homicide convictions.
Tallio’s is the first case to originate at the UBC Innocence Project to make its way into court, Levy said, and last year the program forwarded its first case to the federal justice minister for conviction review. That level of progress over a decade sometimes sounds slow to members of the public, Levy said, who may not understand the “monstrous effort” involved in overturning a conviction.
Indeed, Caitlin Pakosh, case management lawyer for the 24-year-old national organization Innocence Canada, said such cases usually take about 10 years from beginning to end.
These cases take enormous time, Pakosh said, and “resources are always an issue ... and fundraising is always a challenge.”
Last year, Innocence Canada’s financial troubles made national news, caused the organization to issue layoff notices and stop taking new cases, before receiving a round of funding in December.
That means that having a local organization like UBC’s Innocence Project is “always valuable,” said Pakosh.
Many applications to the UBC Innocence Project are denied because they do not fit within its narrow eligibility guidelines. Accepted cases are investigated by upper-year law students, each of whom work under an experienced criminal defence lawyer practising in the Lower Mainland. In most cases, students work on their files for a year, then pass it along to another student, while the supervising lawyer stays with the file. There are a few rare exceptions where students stay on with cases after the school year is over, including the Tallio case, where Rachel Barsky began reviewing the file as a law student six years ago, stayed with it, and is now working as a lawyer on Tallio’s appeal.
The workload is huge and the reward is not. Students earn three course credits a term, Levy said, “which is nowhere near the amount of work they put into the cases.”
For the most part, supervising lawyers provide their services for free, although in a few exceptions, the Legal Services Society provides legal aid funding. While it’s not the most glamorous or financially rewarding work in the legal world, Vancouver lawyer Tony Paisana said, “the lawyers that do this kind of work recognize there’s a need.”
“It’s the type of work that for many of the people involved is thankless in the sense that you’re not getting paid, but it is rewarding,” said Paisana, who was involved with the Innocence Project as a UBC student, and also helped with the high-profile appeal of Ivan Henry.
“And in the sense of a case like Ivan’s, it can be a moment of real justice.”