PASSAGE OF THE DAY:
STORY: "The Sad Story of What Could Become Canada’s Longest Wrongful Imprisonment," by reporter Meredyth Cole, published by Vice on November 14, 2018.
SUB-HEADING "After more than 35 years behind bars—made longer by his claim of innocence—Phillip Tallio will finally get an appeal next year. Tallio Vice;
GIST: "Time
always unfolds in unexpected ways, but in the case of Phillip Tallio, a
Bella Coola, BC man who has spent more than 35 years in prison for a
crime he says he did not commit, the passage of time appears to have two
speeds—intensely, dizzyingly fast or agonizingly slow. Tallio
and two lawyers are appealing the decades-old murder conviction that has
kept him behind bars for two thirds of his life. It’s poised to be a
landmark case. If Tallio was wrongfully convicted back in 1983, he will
have served the longest prison sentence of any wrongfully convicted
person in Canadian history. The case came to my attention this summer,
and I was surprised at how few people around me knew about a battle that
stands to become part of Canadian legal history forever. I knew I had
to learn everything I could about it, most particularly, from huge
series from the Vancouver Sun last year. (Which won an NNA for investigative reporting.) 1983
was a promising year for Tallio—he was 17 years old and settling down
in Bella Coola after nearly a decade in foster care. He’d been on the
Nuxalk Nation reserve for only a couple months and, already, he had a
girlfriend and a child on the way. Tallio spent the day before his
arrest doing essentially wholesome and old-fashioned activities; he went to school, later attending a volunteer firefighter drill, roller-skating, and watching E.T. with his girlfriend. The next day had an entirely different cast. Overnight, everything changed. In
the early morning of April 23, 1983, Tallio left the sleepy aftermath
of a house party to check in on his 22-month-old cousin—something the
child’s parents, who were guests at the same house party, had asked him
to do. Witnesses say he entered the home where the child was spending
the night and stayed there for between two minutes and 10.
He then fled from the home in a state of visible panic. Back at the
house party, he woke family members and told them his cousin was dead.
Immediately after, he wept and vomited from shock. Bella
Coola is a rural, somewhat isolated community (when googling Bella
Coola, the first two pages of news hits feature grizzly bear maulings).
Today, the population hovers around 2,000. In 1983 it was even less, and
the murder of a toddler likely felt incredibly close to home. The
desire for some kind of closure must have been intense. Having
discovered his cousin’s body, it was inevitable that Tallio would be
seen as a suspect. In fact, not questioning him would have been
irresponsible. Even so, zeroing in on Tallio as the most likely culprit
may have caused local police to miss a few key points about the
teenager—namely that he was functioning with a cognitive ability far
below his age. When, 10 hours after being picked up for questioning,
Tallio purportedly confessed to raping and murdering his young cousin,
something appeared to be off. A litany of red flags quickly
emerged that shed doubt on the validity of his confession. Describing
them, they seem moviesque: the interrogation room tape recorder
malfunctioned during Tallio’s alleged confession and no record of it
exists. Family members, in sworn affidavits, describe being stonewalled
by police, who questioned Tallio intermittently for more than 10 hours.
Tallio’s aunt Darlene Tallio remembers tracking down
a lawyer for her nephew, who was denied even telephone access to the
accused. It’s true that police must inform a person of their right to
counsel, but a traumatized teenager with cognitive issues is unlikely to
have understood this. A
local doctor, who examined Tallio later that day, describes feeling
guilty, sensing Tallio’s complete disadvantage: “I felt badly during the
examination, thinking that Phillip did not have a clue what was going
on,” Dr. Ray McIlwain said in an affidavit.
“I thought that he should have had legal advice. He was certainly on
his own.” Dr. McIlwain was told to look for blood, scratches or debris
that could constitute evidence that Tallio had assaulted his cousin.
This evidence was not found. Confessions, even without physical evidence to back them up, are still very persuasive in justice.
They can seal a case shut, overwrite conflicting evidence or take the
spotlight off more plausible suspects. In this case, eagerness to
extract a confession might have produced some incredible oversights—such
as a potential culprit with a history of harming children known to have
been in the vicinity of the crime. Incredibly, Phillip Tallio’s uncle
(now dead) has been described in RCMP emails as a “known child molester” and was present at the same house party where Tallio spent the night. Confessing
to a crime you did not commit is difficult to imagine, but not
impossible in situations where fear, power imbalances, and social
conditioning converge. One in four people
wrongfully convicted but later exonerated by DNA evidence made a false
confession or incriminating statement. The Cardozo School of Law
Innocence Project describes risk factors for false confessions in terms
that seem to apply to Tallio’s situation leading up until the moment he
confessed: “Compromised reasoning ability of the suspect, due to
exhaustion, stress, hunger, substance use, and, in some cases, mental
limitations, or limited education. Young people who do not understand
their rights and are taught to please authority figures are particularly
vulnerable.” Tallio
was, if anything, vulnerable. He is often portrayed as child-like—a
forensic psychologist once described the then-17-year-old teenager as
functioning at the level of a 10 or 12-year-old. He had obvious
cognitive issues and a history of abuse, in spite of which he remained a
jovial personality, the type of person you might ask to check in on
your child. The teenaged Phillip Tallio maintained his innocence
following his unrecorded confession. To this day, he denies committing
any crime. This steadfast refusal to admit guilt, even to his own
detriment, is one of the reasons the UBC Innocence Project became
interested in Tallio’s case nine years ago. Developments in DNA testing
added urgency to the Innocence Project’s calls to appeal the case. Despite
the murky circumstances surrounding Tallio’s arrest and confession in
1983, the case still made it to court, where a judge quickly deemed the
confession invalid. What should have been a triumph for the defence was
in fact only a small relief. Tallio, it turned out, made a second,
unrecorded, confession to a psychiatrist named Dr. Robert Pos. Again,
Tallio denied making a confession. Dr. Pos, now dead, has been described
by colleges as a credible professional, although with an obvious
“pro-Crown bias,” according to the Crown. Psychiatrists who reviewed his report
on Tallio called it "unusual" and not "any measure of
self-incrimination or admission of guilt." Additionally, one lawyer
called him an "deluded professional" in an affidavit, according to the Globe. This
second confession constituted the entirety of the evidence against
Tallio. It was the lynchpin of the case—and it was never tested in a
court of law. Before Dr. Pos could be questioned, Tallio’s lawyers
accepted a plea agreement, reducing his conviction to second degree
murder with the possibility of parole after 10 years.
It’s easy to see this as a chance lost—but in the context, a young Nuxalk man appearing in front of a jury that did not include any Indigenous members, a man with a limited ability to advocate for himself who’d recently spent time in juvenile detention, this plea agreement was perhaps a prudent move. If the trial had gone forward, it could have boiled down to this: the word of a highly educated professional against a teenager in a very compromised position. Tallio attests that, at the time, he did not understand the minutia of the plea agreement. Today, lawyers working on Tallio’s appeal have called in scores of experts who question this crucial second confession, and have taken a second approach to bolster their case. DNA evidence, they hope, will be the irrefutable proof Tallio needs to clear his name. The murder occurred a full two years before DNA evidence was first used in a criminal investigation, meaning tissue samples and other evidence were not collected with this purpose in mind. The situation is further fraught because all the physical evidence from the original trial—blankets, clothing, and so on—is currently missing. Potential mishandling of the case by police in the 1980s is perhaps the most grimly believable aspect of a situation marked by incredible twists of fate. Many people who lived on the Nuxalk Nation Reserve at the time of the murder describe feelings of distrust and antipathy between the community and local law enforcement. Even today, police/civilian relations in Bella Coola appear to be rocky. A 2011 report on the RCMP in northern and rural British Columbia carried out by the BC Civil Liberties Association describes a community workshop in Bella Coola in which “positive comments [about the RCMP] were almost completely absent.” Of course, few people ever come to workshops to air anything other than grievances, but the report still notes that “Bella Coola, it seems, needs more positive RCMP work to speak about.”
Lawyers for the B.C. Justice Ministry, the people tasked with challenging an appeal, have their own interpretations of the 52-year-old’s refusal to concede guilt. Prison is unkind to everyone, obviously, and pedophiles especially. If Tallio really is the meek and sensitive soul almost everyone makes him out to be, adding such a revolting crime to his list of prison demerits could be lethal. In his early days in a maximum-security penitentiary, aged 17, Tallio claimed he felt afraid of his fellow inmates and sensed an ever-present chance of violence; “I started getting into the weight room and putting on weight,” he’s said, “in case I needed to fight.” Crown lawyer Mary Ainslie is suspicious, too, of the timeline of events. Witnesses put Tallio at the murder scene for between two and 10 minutes. Ten minutes is long enough to have committed the crime, certainly, but what worries the Crown is that the murder occurred in a 40-minute window that overlaps with the short time Tallio was witnessed at the scene. This means, either Tallio killed his cousin or the real killer committed the crime and left the scene approximately half an hour before Tallio made the discovery. Ainslie calls this second possibility a “remarkable circumstance,” and indeed it would be—as remarkable, perhaps, as a police tape recorder malfunctioning at the moment of confession or the entirety of the physical evidence from a murder investigation going missing. Tallio’s life, even before his conviction, has been described as “total tragedy.” But this perhaps is too black and white, a polarity like innocent/guilty that doesn’t allow for the nuances that make up a life, no matter how marginalized. Tallio apparently writes poetry, gardens, and has completed high school and vocational training. He has taken great interest in his heritage, speaking with elders and gaining some measure of spiritual restoration from their guidance. In a letter to his lawyer, written in meticulous cursive, he expresses his frustration at being denied “quiet-time,” (a prison privilege), but he also writes about those he considers family, their ceaseless support. Lingering over any discussion of his case is the question of how it all lasted so long, how doubts this strong could have persisted, untested, for decades. Again, time is disjointed. Tallio has been behind bars long enough for an entire life to begin and end. His daughter, who was born after he was convicted, died early this September at the age of 34. Honey Hood visited her father just once—telling Postmedia News that it took her “over an hour to actually walk into the prison…” The entirety of their in-person relationship occurred in less time than a lengthy lunch. Dizzyingly fast."
It’s easy to see this as a chance lost—but in the context, a young Nuxalk man appearing in front of a jury that did not include any Indigenous members, a man with a limited ability to advocate for himself who’d recently spent time in juvenile detention, this plea agreement was perhaps a prudent move. If the trial had gone forward, it could have boiled down to this: the word of a highly educated professional against a teenager in a very compromised position. Tallio attests that, at the time, he did not understand the minutia of the plea agreement. Today, lawyers working on Tallio’s appeal have called in scores of experts who question this crucial second confession, and have taken a second approach to bolster their case. DNA evidence, they hope, will be the irrefutable proof Tallio needs to clear his name. The murder occurred a full two years before DNA evidence was first used in a criminal investigation, meaning tissue samples and other evidence were not collected with this purpose in mind. The situation is further fraught because all the physical evidence from the original trial—blankets, clothing, and so on—is currently missing. Potential mishandling of the case by police in the 1980s is perhaps the most grimly believable aspect of a situation marked by incredible twists of fate. Many people who lived on the Nuxalk Nation Reserve at the time of the murder describe feelings of distrust and antipathy between the community and local law enforcement. Even today, police/civilian relations in Bella Coola appear to be rocky. A 2011 report on the RCMP in northern and rural British Columbia carried out by the BC Civil Liberties Association describes a community workshop in Bella Coola in which “positive comments [about the RCMP] were almost completely absent.” Of course, few people ever come to workshops to air anything other than grievances, but the report still notes that “Bella Coola, it seems, needs more positive RCMP work to speak about.”
Lawyers for the B.C. Justice Ministry, the people tasked with challenging an appeal, have their own interpretations of the 52-year-old’s refusal to concede guilt. Prison is unkind to everyone, obviously, and pedophiles especially. If Tallio really is the meek and sensitive soul almost everyone makes him out to be, adding such a revolting crime to his list of prison demerits could be lethal. In his early days in a maximum-security penitentiary, aged 17, Tallio claimed he felt afraid of his fellow inmates and sensed an ever-present chance of violence; “I started getting into the weight room and putting on weight,” he’s said, “in case I needed to fight.” Crown lawyer Mary Ainslie is suspicious, too, of the timeline of events. Witnesses put Tallio at the murder scene for between two and 10 minutes. Ten minutes is long enough to have committed the crime, certainly, but what worries the Crown is that the murder occurred in a 40-minute window that overlaps with the short time Tallio was witnessed at the scene. This means, either Tallio killed his cousin or the real killer committed the crime and left the scene approximately half an hour before Tallio made the discovery. Ainslie calls this second possibility a “remarkable circumstance,” and indeed it would be—as remarkable, perhaps, as a police tape recorder malfunctioning at the moment of confession or the entirety of the physical evidence from a murder investigation going missing. Tallio’s life, even before his conviction, has been described as “total tragedy.” But this perhaps is too black and white, a polarity like innocent/guilty that doesn’t allow for the nuances that make up a life, no matter how marginalized. Tallio apparently writes poetry, gardens, and has completed high school and vocational training. He has taken great interest in his heritage, speaking with elders and gaining some measure of spiritual restoration from their guidance. In a letter to his lawyer, written in meticulous cursive, he expresses his frustration at being denied “quiet-time,” (a prison privilege), but he also writes about those he considers family, their ceaseless support. Lingering over any discussion of his case is the question of how it all lasted so long, how doubts this strong could have persisted, untested, for decades. Again, time is disjointed. Tallio has been behind bars long enough for an entire life to begin and end. His daughter, who was born after he was convicted, died early this September at the age of 34. Honey Hood visited her father just once—telling Postmedia News that it took her “over an hour to actually walk into the prison…” The entirety of their in-person relationship occurred in less time than a lengthy lunch. Dizzyingly fast."
The entire story can be read at:
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PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
