Further DNA testing ordered by court in Tallio murder case
A B.C. Court of Appeal decision Monday paves the way for further DNA testing in the case of Phillip Tallio, a B.C. man who’s been incarcerated 35 years for a murder he says he didn’t commit.
A unanimous decision signed by three B.C. Court of Appeal judges and delivered Monday morning says “the interests of justice demands” that further DNA testing be performed.
Tallio was arrested in April 1983 for the murder of a 22-month-old child named Delavina Mack on the Bella Coola First Nation reserve. At Tallio’s trial the following year, he pleaded guilty to second-degree murder, but since that time, he has maintained his innocence.
In support of Tallio’s attempt to appeal his conviction, his lawyers have been trying to get a tissue sample from the victim released by the government for further testing. Tallio’s lawyers argued that further DNA testing of the sample could help prove Tallio’s innocence. The Crown opposed the release of the sample, and the two sides argued last November before a panel of three B.C. Court of Appeal judges.
In the written reasons for Monday ’s decision, B.C. Court of Appeal Justice Elizabeth Bennett wrote: “The Crown strenuously argues that the DNA results to date are likely contaminated ... It is, frankly, irrelevant at this stage of the proceedings — particularly when there is expert evidence that suggests that the key results are not contaminated.”
Tallio’s lawyers are seeking forensic testing using modern scientific methods, but the Crown argued in favour of “postponing the testing until it becomes more mainstream,” Bennett wrote in her decision.
“The Crown also suggests that because this is new or novel science, the testing should wait as most, if not all of the sample will be used up in further testing. Mr. Tallio has waited 35 years. If he is willing to risk the testing not giving him the result he seeks because it is still not sufficiently discerning among patrilineally-related males, then that is his risk to take.”
Court ordered the RCMP to escort the tissue sample to the Netherlands Forensic Institute in The Hague for testing.
Tallio learned of the decision Monday morning when one of his lawyers, Rachel Barsky, phoned him at the B.C. minimum-security institution where he was transferred late last month after years in a medium-security penitentiary.
“He said, ‘It’s been a long time coming,’” Barsky said after getting off the phone with Tallio. “He might have been a little stunned.”
While Tallio was happy to learn of Monday’s result, Barsky said, he also commented with sadness about all of his family members and friends who have died over the 35 years he’s been incarcerated, including, most recently, a family friend he knew from his childhood who he learned Monday morning had died over the weekend.
Tallio’s appeal effort is supported by the UBC Innocence Project, and Barsky started working on the file seven years ago while she was a law student. For the last two-anda-half years, Tallio’s lawyers have been trying to get this tissue sample released for further testing.
“It’s a very long process, this is just another of the steps we’ve had to go through,” Barsky said outside court after Monday ’s decision was handed down.
The Crown has “no present intention to appeal today’s order to release exhibits for further forensic testing,” said Alisia Adams, a spokeswoman for B.C.’s Criminal Justice Branch, in an emailed statement Monday. “The B.C. Prosecution Service is currently working with the RCMP to facilitate the transport of the exhibits for further testing, as soon as reasonably possible, in accordance with the terms of the Court of Appeal’s order.”