Lawyer for convicted killer now claiming wrongful conviction says client's alleged confession was 'chilling'

The lawyer who negotiated a plea deal for a man who claims he was wrongfully convicted of the murder of a toddler says his client faced troubling evidence heading into trial — not least of which was a confession allegedly given to RCMP.

Phillip Rankin told a B.C. Appeal Court hearing Thursday that he was particularly concerned about a statement Phillip Tallio allegedly gave to a police officer in which he admitted to sexually assaulting and killing his 22-month-old cousin Delavina Mack in April 1983.

"It had so much detail about what he did to the child that it was chilling to read it. So it wasn't just 'I did it,' it was a descriptive and very troubling account," Rankin said.

"When you read [the officer's] statement, it's a pretty chilling statement."

Rankin was testifying at the third day of a hearing in which Tallio is applying to withdraw the guilty plea to second-degree murder he entered nearly 37 years ago.

The 54-year-old claims he didn't understand what he was doing at the time, when he was 17 years old.

Although the deal called for Tallio to be eligible for parole 10 years into his life sentence, he has not been released because he hasn't admitted his guilt. 

The defence claims new witnesses and evidence point to two alternate suspects: Tallio's uncle, Cyril, and Delavina's great-grandfather, Wilfred, both of whom are now deceased.

Both men were allegedly known to have sexually assaulted young girls.

The confession Tallio allegedly gave to the RCMP, which was not audio recorded, was excluded at trial.

But Tallio allegedly gave another incriminating statement to a psychiatrist while he was being assessed at the Forensic Psychiatric Institute in Coquitlam.

In documents filed ahead of the hearing, the defence claims Rankin encouraged Tallio to enter the plea, because the psychiatrist's testimony could prove damning if he went to trial.

'A long history and a bad history'

The defence also claims that the judge who sent Tallio for a mental fitness assessment in the days after his arrest lacked the jurisdiction to do so; they say that should render anything the teen said to anyone while he was there invalid.

Rankin told defence lawyer Thomas Arbogast he agrees with that position. He said he contested the remand to the forensic institute, because he feared Tallio might disclose information to people who could be called to testify against him.

"I didn't want him to discuss the case in any way about what he did, the chronology of his events or anything to do [with them], whether it was benign or not benign, whether it was going to the movies or whatever," Rankin said.

The lawyer told the appeal court judges he wasn't opposed to Tallio getting treatment for psychiatric issues, but since the teen "had a long history and a bad history and a damaging history" he didn't want him talking about the allegations.

Tallio was shuffled from foster home to foster home as a child and stole cars, rolled a pickup truck and committed break and enters as a youth. He was sent to a youth detention centre in 1980 for shooting his foster grandmother.   

Tallio was the person who found Delavina's lifeless body in the tiny First Nations community of Bella Coola in the early hours of April 23, 1983.

In addition to the alleged confessions, Rankin said he was concerned about the fact Delavina's mother said she hadn't asked Tallio to check on the child, and that Tallio didn't awaken the victim's grandparents, who were nearby.

'I can't confirm or deny that'

Rankin took the stand following two and a half days of testimony from Tallio himself, nearly all of it under the bruising cross-examination of Crown prosecutor Janet Dickie.

Dickie read a portion of a report from Dr. Anthony Marcus, another psychiatrist at the forensic institute, who wrote that he met with Tallio on several occasions and that Tallio told him "he had a blackout just after I undressed her up at Delavina's and for just about the whole time I was doing it to her.'"

Dickie asked Tallio if it was possible he had used those words.

"I don't recall that, no," Tallio said.

"Is it possible?" Dickie pressed.

"I can't confirm or deny that," Tallio said.

'Why wouldn't you pay attention?'

Dickie took Tallio through reams of documentation that suggested he was more sophisticated than he was making himself out to be and had proven capable of advocating for himself behind bars.

She also pointed out that while Tallio said he couldn't remember the details of many of the conversations of which she had records — and in some cases even the existence of certain meetings — he claimed to be positive he never admitted to the crime.

The cross-examination was punctuated by long pauses as Tallio considered Dickie's questions and appeared to struggle to find answers.

The prosecutor asked him repeatedly about the presence of his signature on documents from the time of the trial and the fact that he initialed each paragraph of the plea deal in which he admitted to murder.

Tallio claimed that he didn't pay attention to legal proceedings as a teenager — just signed what was put in front of him and left the details to the lawyers.

Dicke expressed scepticism at that claim.

"You understood that you were charged with first-degree murder — correct?" she asked. "You knew that you were charged with killing Delavina?

Tallio answered "yes" to both questions.

"You knew the accusation was also that you had sexually assaulted her," Dickie continued. "So why wouldn't you pay attention?"

"Like I said earlier," Tallio responded. "When it came to court stuff, for me it was the social workers and lawyers that cared about all those things."

Rankin's testimony will continue Friday.