Prosecutor pummels Tallio during testimony
Prosecutor pummels his claim of innocence in sexual assault and murder of toddler
Phillip Tallio launched his historic wrongful-conviction appeal in B.C.'s highest court this week with three days of gruelling testimony.
He left the courtroom Thursday with a heavily listing case.
Defence lawyers rarely put their clients in the witness box, and Tallio's performance displayed why — the Crown pummelled the 54-year-old Indigenous man who spent almost 37 years in prison for a heinous 1982 sex slaying he says he didn't commit.
Worse, his own lawyer from back then, Phil Rankin, told the court late Thursday that a signed and initialled statement Tallio gave to the RCMP about killing and raping his 22-month-old cousin Delavina Mack in Bella Coola was “pretty chilling.”
Confessional statements made to a psychiatrist were bad enough, he added, but the police statement “had so much detail about what he did to the child.
“It wasn't just, `I did it.' It was a somewhat descriptive and a very troubling account ... vivid more than just an acknowledgment.”
Rankin said it exacerbated other evidence — Tallio had a “very small, 30-minute window of opportunity,” he had previous psychiatric issues, he said he found the baby “raped” not “dead,” and he hadn't been asked to check on the child. Tallio has claimed he is innocent, maintaining Rankin badly represented him and, without his consent, pleaded him guilty in 1983 to second-degree murder with a sentence of life imprisonment without parole for at least 10 years.
Under scathing cross-examination this week, Tallio was far from persuasive.
Prosecutor Janet Dickie read from psychiatric reports that contained seemingly incriminating statements from him about the killing in the coastal town on April 23, 1982.
She read him one particular excerpt:
“(Tallio) maintained throughout he had no recollection for any part of the activities that preceded and caused her death, he had no recollection of approaching the child, lifting and carrying her to another room, undressing her or himself, (I think it says participating, but it's cut off ) in the sexual act or placing a pillow over her face, he recalled only being aware (there's a couple of words missing) that he must tell his aunt that he thinks Delavina is dead. … He said that he felt almost in a fog or a stupor at the time, but was adamant it was not due to alcohol.”
Tallio was also said to have told police that he blacked out while murdering and sexually assaulting Delavina.
Before responding to the doctor's account, he fell into a 95-second silence: “I don't recall saying anything along those lines.”
He couldn't recall most conversations with therapists, dealing with some of the doctors, or treatment he received at the Regional Psychiatric Centre, where he was sent for evaluation after his arrest. Confronted with details, statements and documents about events back in 1982 and 1983, he grudgingly conceded: “I really wasn't paying much attention.”
He often took refuge in a bad memory and obfuscated: “I cannot confirm or deny.”
He said he didn't “understand” his trial.
“Are you saying you didn't agree, you didn't understand why you were charged with first-degree murder?” Dickie asked.
“I didn't understand anything,” Tallio replied.
“Are you saying you didn't understand the words?” she queried.
“Yes,” he said.
“You understood what murder meant?” the dumbfounded prosecutor continued.
“I understood what the word means,” was Tallio's rejoinder.
“You knew you were charged with killing Delavina Mack. ... You knew the accusation was also that you sexually assaulted her?”
“Yes,” he conceded.
“It was serious, wasn't it?” Dickie asked.
“Yes,” he admitted.
“But you say now you didn't do those things, right?”
“Yes.”
“So, why wouldn't you pay attention?”
He didn't have a real answer. His mantra was, “I don't remember. I don't recall. I didn't care.”
He couldn't explain why he didn't pursue an appeal earlier.
The 1982 killing happened before the discovery of genetic fingerprinting and DNA profiling, but by the 1990s such new forensic techniques were standard.
In the 1990s, the prosecution suggested Tallio was urged to appeal on those grounds, but did not — reportedly because he said he feared a longer jail sentence if it failed to exonerate him.
Tallio's supporters had hoped a few years ago that recently developed DNA testing techniques would prove his innocence and make these proceedings a slamdunk.
They didn't. The decades-old samples were too degraded to be of any use.
His testimony was key.
His many memory lapses, his interminable silences, his inconsistencies, his obvious challenges — they did not advance his cause.
Tallio is free on bail pending a decision by the three-justice division hearing his appeal, which continues.