Convicted B.C. child killer tells appeal court he didn't murder toddler

A man who claims he spent nearly four decades in jail for a murder he did not commit took the stand Tuesday in a bid to convince three B.C. appeal court judges to let him withdraw the guilty plea he entered when he was 17.

Speaking in a slow, deliberate tone, Phillip James Tallio said he could have been released on parole long ago. 

But Tallio said he was incapable of doing what prison authorities said would be necessary for him to gain his freedom.

"There was a certain point where (they) would ask about what led up to the crime, and then they asked 'Do you admit to and accept responsibility?' " Tallio said.

"And I said 'I can't do that.' "

Lawyers say Tallio didn't understand plea

Tallio was the first witness in what is expected to be a month-long hearing. 

The 54-year-old claims he was wrongfully convicted after his lawyer at the time persuaded him to plead guilty to killing his 22-month-old cousin, Delavina Mack, in October 1983.

Tallio's lawyers claim he didn't understand what was happening when he entered the plea and a judge gave him an automatic life sentence without the possibility of parole for 10 years.

"Did you understand at the time that a guilty plea meant that you were admitting to killing Delavina Mack?" Tallio's lawyer, Rachel Barsky, asked him.

"No," Tallio responded.

Tallio took the stand in a courtroom with seating limited to lawyers and family members due to coronavirus restrictions.

The court set aside two overflow rooms where media and family members watched closed-circuit coverage of the proceedings on a television screen split between a view of the judges and a view of the court.

Tallio is heavyset and wore dark clothes as he walked slowly to the stand and sat down. He wore headphones and said he could not hear the court clerk who asked him to affirm an oath to tell the truth. He requested that the clerk speak into a microphone.

RCMP ignored other suspects, lawyers claim

Delavina Mack was sexually assaulted before she was murdered. According to court documents, the defence claims the RCMP's "tunnel vision" made investigators blind to anyone but Tallio in the rush to find the killer.

They claim police ignored witnesses and fresh evidence that pointed to two alternate suspects: Tallio's uncle, Cyril, and Delavina's great-grandfather Wilfred, both of whom are now dead, and both of whom were known to have sexually assaulted young girls.

A number of Delavina Mack's relatives embraced outside the courthouse both before and after the morning's hearing. Several carried cedar boughs in her memory.

"It's important for them that they be here," said Sarah Rauch, a lawyer who represents the victim's family.

"They're here. This is a long-standing issue, of course. Obviously they're here representing the baby."

The proceeding is unusual for an appeal court hearing, in that the judges are expected to hear a great deal of fresh evidence as well as legal submissions. 

As Barsky began questioning Tallio, one of the judges stressed that they were not conducting a trial, forcing her to focus on the events surrounding his plea, as opposed to the details of the crime itself.

Barsky wrapped up her questions in under half an hour. 

Her final question to Tallio: "Did you sexually assault and kill Delavina Mack?"

"No, I didn't," Tallio said.

'You come across as quite sophisticated'

Cross-examination from the Crown continued all day.

Prosecutor Janet Dickie's questions focused on letters and applications Tallio completed in prison, in order to contradict the defence's claim that he had the mental ability of a 12-year-old at the time of his trial.

She pointed to a poem he wrote in the wake of the Sept. 11, 2001 terrorist attacks where Tallio described the perpetrators as "misguided" and "ill-fated." She also asked where he learned words like "rehabilitation," "relapse" and "relapse prevention."

"You understand that in these documents — you come across as quite sophisticated, right?" she asked.

Tallio said he had help from other inmates.

The prosecutor presented Tallio with a letter he wrote to a former social worker in 1984 in which he thanks her for moral support and tells her that he speaks about her to other inmates, reading: "I tell them how you helped me, during my trial and my conviction. How you helped me when I wanted to give up, and you lifted me up in spirits."

"Nowhere do you complain about your lawyer or being wrongfully convicted here — correct?" Dickie asked.

"Correct," Tallio said.

The cross-examination was punctuated by long pauses as Tallio struggled to answer the prosecutor's questions, staying silent for minutes at a time as he tried to formulate his responses.

At one point, Dickie said he seemed to be pausing a lot. Tallio said he'd lost his train of thought.

"Everything's been confused for the past 37 years," he told her.