B.C. inmate Phillip Tallio has waited 34 years to clear his name. These women might help him do it
Phillip Tallio has been jailed for three decades for a brutal crime he says he did not commit. Jana G. Pruden tells the story of a young outsider, a troubling police investigation and the women whose efforts won him the right to an unprecedented appeal
In the first year after he was charged with the rape and murder of a child, Phillip James Tallio wrote his teenaged girlfriend 116 letters, every one of them repeating the same thing. He said it before his trial and after his conviction, and when he was sentenced to life in prison. For more than 34 years he said it, over and over, and he would not stop. He said it to family members and to correctional staff, in prison programs and to the parole board, even though he knew saying it meant he would not be released. When people told him to stop saying it, so at least he could get out of prison and have some kind of a life, he told them he would never admit to something he didn't do. And then he'd repeat the same thing he'd been saying for 34 years: I didn't do this.
Now, a lifetime later, people are listening.
After years of intensive investigation and research, the Innocence Project at the University of British Columbia has won Mr. Tallio the right to appeal his 1983 conviction for the murder of his 22-month-old cousin, Delavina Mack, well over three decades after the appeal deadline passed. The historic appeal is based on new DNA evidence and questions about a flawed and tunnel-visioned police investigation, serious concerns about his two alleged confessions, evidence of Mr. Tallio's cognitive limitations, reports of systemic racism, and witness accounts that raise the possibility of other suspects never investigated by police.
"It's something that us outside of the prison life will never be able to fully comprehend, especially that many years," says Rachel Barsky, who began working on the case six years ago while a law student involved with UBC's Innocence Project, and is now a lawyer working as co-counsel on the case. "Thirty-four years in prison. Phillip has missed out on a lifetime."
The case has largely come to light because of a former correctional officer who knew Mr. Tallio when he was a teenager and the subsequent efforts of her daughter, Robyn Batryn, who, for the past 15 years, has been working to have the case reviewed.
"It makes me sad. He's lost everything. It's almost like he has to start right from the beginning," says Ms. Batryn, a health-care supervisor. She says her mother, now almost 93, wants to see Mr. Tallio released before she dies.
The questions around his conviction are significant enough that even the judge who presided over Mr. Tallio's preliminary hearing has filed an affidavit saying he has come to wonder whether the man imprisoned for 34 years is actually guilty.
Mr. Tallio, 51, has been eligible for parole since 1993, but has been repeatedly denied any kind of release, because of his steadfast refusal to accept responsibility for the murder. He has been held long past when most offenders are granted parole, even for the most heinous crimes.
If Mr. Tallio is innocent, it is the longest known wrongful conviction imprisonment in Canadian history.
"Sometimes I step back and say, 'Is this reality?' " his lawyer, Ms. Barsky, says. "But these cases do happen."
The women in Phillip Tallio's corner
Early on the morning of April 23, 1983, 17-year-old Phillip Tallio walked up to the door of a house in Bella Coola, B.C., and let himself inside. He had recently been released from the Willingdon Youth Detention Centre, and was back living with relatives in the Nuxalk Nation.
There had been a series of parties around the community that night, and a handful of people were still awake to observe Mr. Tallio walking toward the house and then running away a few minutes later, looking upset and panicked. He ran back to his uncle's house, where he woke his cousin and told her that her 22-month-old daughter, Delavina, had been raped and killed.
Within four hours, RCMP officers had detained Mr. Tallio in the toddler's death. Within 14 hours, he signed a written confession and was charged with first-degree murder.
Marie Spetch met Phillip Tallio at the Willingdon Youth Detention Centre in 1978, when he was 14 years old. She was a correctional officer at the centre, he a skinny teenager bouncing in and out of the facility for mostly petty offences. Somehow, they connected.
Even then, Mr. Tallio's life had not been easy. His earliest memory was of being sexually abused by his uncle at the age of 4, and the memories that followed were filled with trauma. His mother was an alcoholic who neglected and physically abused him and his brothers, once throwing Phillip down the stairs and causing a serious head injury. She died of an overdose in front of Mr. Tallio when he was 9, and his father passed away suddenly five years later. Mr. Tallio spent most of his life between foster homes and youth facilities, and by the time he reached his teens, he was drinking and getting in trouble with the law.
There were lots of kids at Willingdon, but something about Phillip stood out to Ms. Spetch, and he soon became "her boy." Mr. Tallio had clear cognitive issues, and at the age of 17 was described as operating at the level of a 10– to 12-year-old. He had committed one especially serious offence, firing a gun through a door and hitting a member of his foster family who interrupted his suicide attempt. But Ms. Spetch had never seen him be aggressive or violent, even within the correctional facility. She thought he was sensitive and caring. She hoped that, with some support, he may be able to make something of his life.
Instead, she arrived at work on April, 25, 1983, and learned he had been arrested for murder.
She believed immediately that police had the wrong man.
The rape and murder of Delavina Mack sent shock waves throughout the community of Bella Coola, both for its brutality and the identity of its suspect.
Those who saw Mr. Tallio said he was not drunk that night, and had appeared to be in good spirits and looking forward to his future. He and his girlfriend, Theresa Hood, had just learned she was pregnant. Earlier that evening, they had gone to see the movie E.T. at a local hall, and talked about the future they were going to have together. He was planning to buy her an engagement ring.
Some of those who knew Mr. Tallio at the time remembered him being protective of children, and never exhibiting any behaviour with them that raised concern. People knew him as "a gentle spirit" who defended other kids and defused fights, more likely to hurt himself than someone else.
And though Mr. Tallio had apparently confessed to RCMP, he strongly proclaimed his innocence to everyone else, even telling one aunt that he would "swear on a thousand Bibles" he was innocent.
Some residents of Bella Coola had also seen suspicious things around the time of Delavina's death that had nothing to do with Mr. Tallio. People who lived in the child's house were seen burning things down by the creek that morning, and one woman said she saw the child's grandmother with what appeared to be a discoloured mattress spring. Another woman said she later found bedsheets and a child's toy in the smouldering remains of the fire. In the Nuxalk tradition, some of a deceased person's possessions are burned, but it is not done until the fourth day after death.
Roseanne Andy, an elder who lived across the street from the house where Delavina was killed, was among those who watched the activity early that morning. She says she went to tell RCMP but officers didn't take a statement or write down her information, and never spoke to her further about what she saw.
"Being ignored by the RCMP was not uncommon for us as Nuxalk individuals. Nor did we wish to become involved in the white justice system," said Ms. Andy in an affidavit filed as part of Mr. Tallio's appeal. "At that time many people were worried, and continue to worry today, that their information will be misunderstood in court due to both cultural and language barriers. People in this community have often said that they would rather not say anything."
One man, Larry Moody, says he was asked to burn a box of bloody clothes for the child's great-grandfather that day, and saw blood in the man's bathroom. But Mr. Moody says he didn't learn about Delavina's murder until a few hours later, and didn't approach authorities because by then he'd heard Phillip Tallio had confessed to the crime.
"It was my understanding in 1983 that Phillip Tallio had confessed to killing Delavina Mack," Mr. Moody said, in a statement filed with the court. "I thought that was the end of it."
After his arrest, Phillip Tallio was interrogated by RCMP for 10 hours without speaking to a lawyer. He maintained his innocence during the recorded interview, but then apparently confessed during a period in which the tape recorder malfunctioned. Mr. Tallio also allegedly gave a second confession during a later session with a forensic psychiatrist , which was also unrecorded.
With no direct evidence linking him to the murder, his conviction rested on the two confessions.
A judge excluded the RCMP confession from the trial based on doubts about the voluntariness of the statement given Mr. Tallio's intellectual level, that he was unable to speak with anyone who could help him, and the length and nature of the interrogation – including that he had been held in isolation for 10 hours. The decision left the entire case resting on the statements Mr. Tallio had reportedly made to a forensic psychiatrist , Dr. Robert Pos.
The Crown prosecutor in the case, Deirdre Pothecary, now says she believes Mr. Tallio would have been convicted of first-degree murder if the alleged confession to Dr. Pos was allowed to go before the jury, but found not guilty if it was excluded.
Instead, a plea deal was struck before that was decided.
Mr. Tallio pleaded guilty to second-degree murder nine days into his trial that fall, which would see him eligible for parole after 10 years rather than face a first-degree conviction with no chance of parole for 25.
Unable to get involved in Mr. Tallio's court proceedings or give him advice because of her position as a correctional officer, Ms. Spetch did not find out that the trial and sentencing had occurred until the proceedings were already finished. Though she had concerns about whether Mr. Tallio had the capacity to understand the plea agreement, she felt that all she could do was be there to support him.
Meanwhile, Mr. Tallio steadfastly and continually proclaimed his innocence, assertions that are recorded in institutional reports and reviews throughout his sentence.
"This is something that I know the parole board does not want to hear, but I would be lying to myself and to others if I were to say that I did the crime that I am here for… " Mr. Tallio wrote in a document for one prison program, as his parole eligibility neared in 1992. "I myself know that if I were to be released after my ten year review I would not reoffend, again, because I did not do the crime in the first place. All I want is to get out of this place and start a brand new life."
Mr. Tallio now says he didn't fully understand what an appeal was until 1992, when two older inmates explained it to him and advised him to get the transcripts of his court proceedings. He says that when the inmates read the transcripts, they told him he shouldn't be in prison.
Some time around 2003, Ms. Spetch's daughter, Robyn Batryn, came to the same conclusion.
Ms. Batryn had gotten to know Mr. Tallio at the urging of her mother, Marie Spetch, who worried that if something happened to her, Mr. Tallio would have no one. Through the years, the three of them had grown close. The women would sometimes go for private family visits at the prison, and Mr. Tallio had come to describe them as his adoptive mother and sister. Believing he could not have been convicted without strong evidence against him, Ms. Batryn grilled Mr. Tallio over and over about what happened, but his story never changed. One day, he asked her if she wanted to read his transcripts.
"I read them twice," says Ms. Batryn, 69, who had once worked briefly in the correctional system in New Zealand. "And there were a lot of discrepancies. A lot of things that shouldn't have happened, happened."
Ms. Batryn began taking the train into Vancouver whenever she could, going to lawyers' offices with his transcript in hand, begging someone to read it.
Eventually she found a lawyer willing to have some students review the proceedings, and she "hounded him to death" until it happened. Ms. Batryn then took their notes to the Association in Defence of the Wrongly Convicted (now called Innocence Canada), which had been involved in overturning high-profile wrongful convictions such as those of David Milgaard and Thomas Sophonow.
Progress stalled when it was discovered that all the RCMP forensic evidence in the case had been lost or destroyed, but Ms. Batryn refused to accept it was a dead end. In 2009, she heard about the UBC Innocence Project, and after an extensive review, the group took on the case.
Having previously done a journalism degree focusing on investigative reporting, second-year law student Rachel Barsky not only explored the legal aspects of the case – such as whether Mr. Tallio was capable of understanding his guilty plea – but also began investigating it, tracking down new leads in a murder that happened before she was born.
She gathered dozens of affidavits from people who had seen or heard suspicious things that night, as well as from those who had information about other potential suspects, knew Mr. Tallio or his case, or had insight into the dynamics of the community at the time.
In his own affidavit, the judge who presided over Mr. Tallio's preliminary hearing described serious concerns around policing and the administration of justice in the area, including an RCMP practice of imprisoning young Indigenous men for no reason on weekends to keep the community quiet.
Judge Charles Cunliffe Barnett said that people in the community were also extremely reluctant to believe a local could commit a terrible crime, and noted that, having lived away for most of his life, Mr. Tallio was an outsider.
"I have, over the years, wondered about Phillip Tallio's case," Judge Barnett wrote. "Initially, I focused my thoughts upon what I perceived to be the failings of the child protection system. As time went on and I learned that Phillip Tallio was still imprisoned and refused to acknowledge guilt, I came to wonder if he, an outsider in Bella Coola, had truly been guilty of violating and killing Delavina Mack."
The affidavits also raised significant questions about both of Mr. Tallio's confessions and his guilty plea.
One psychologist who had examined Mr. Tallio before the trial described him as being easily confused and overwhelmed, unable to think things through and anticipate consequences, and having "blind faith" that people would help him. She said he would sometimes tell people what he thought they wanted to hear so that they would stop questioning him, and she expressed concerns about his ability to understand the court proceedings he was facing.
She said that before the trial Mr. Tallio appeared to think that the sooner he went to prison, the more likely he would be home for Christmas. A court stenographer who worked on the case described Mr. Tallio as being like a child, and said he was upset over missing Halloween.
Mr. Tallio claimed he did not make either confession, and never even met with Dr. Robert Pos, the forensic psychiatrist he supposedly confessed to. In one affidavit, a retired criminal defence lawyer says he believes Dr. Pos lied about meeting with his client in a different murder case, and the lawyer expressed serious concerns about Dr. Pos (who is now dead), calling him a "deluded professional" who believed he could tell if people were lying by looking at their carotid artery.
And then there was the lack of physical evidence to prove or disprove Mr. Tallio's claims. With all of the RCMP exhibits missing, Rachel Barsky and her colleagues at the UBC Innocence Project located 45 tissue samples that had been taken during the child's autopsy and were still being stored at the BC Children's Hospital.
Shortly after the samples were located, Mr. Tallio was interviewed again by the RCMP. During the interview, he repeatedly said he hadn't killed Delavina Mack, and expressed frustration at being unable to prove his innocence. He offered to give the officers any kind of DNA sample they wanted.
Asked by one of the officers what DNA meant to him, Mr. Tallio said, "Freedom."
"And if we take your DNA sample and have it checked to the potential DNA located on the vagina sample, what's that going to show us?" the officer asked.
Mr. Tallio answered, "That it wasn't me."
In late June of this year, more than 1,000 pages of affidavits, legal argument and other documents were opened to the media after an appeal court judge in British Columbia lifted a publication ban that had been requested by the Crown and other parties, including the child's parents. A publication ban remains in place on the affidavits of the parents, who, the judge said, "revealed highly personal information in order to protect their daughter's identity and dignity." The child's parents could not be reached for comment.
In its court filings, the Crown contends Mr. Tallio was properly tried and convicted, and only became motivated to appeal his conviction after it became apparent he would not get parole. A Crown memorandum says the affidavits filed with the court are "not reliable because of the passage of time and apparent bias," and describes Mr. Tallio's claims of innocence as "a denial stance that he and his family have committed to for decades."
"No miscarriage of justice occurred in this case," the memorandum reads.
Instead, the Crown says that Mr. Tallio had "almost exclusive opportunity to commit the offence," and that police took few steps to investigate other suspects only because Mr. Tallio was identified quickly, and then confessed within 14 hours.
It describes Mr. Tallio as a "highly disturbed young man" who sometimes experienced blackouts, and had been described in an earlier psychiatric report as "a danger to himself and others." The Crown memorandum points to other indications that Mr. Tallio was the killer, including that he knew the child had been raped, and that Mr. Tallio was not wearing socks when he was arrested. (A sock with blood and semen on it had been found at the murder scene.)
"The 'rumours and speculations' regarding this case are just that," the Crown memorandum reads, "there is no credible evidence that anyone else committed the offence."
DNA testing on one of the samples taken from the child's vagina excluded Phillip Tallio as the male donor but the Crown says that is not proof of his innocence as the samples are contaminated and were never intended for DNA analysis, which didn't exist at the time they were gathered.
A second sample was inconclusive.
The Crown is now refusing to release any additional samples for analysis, saying there is "no utility in further testing" because they are too compromised to be of any value.
In his own 35-page affidavit, Mr. Tallio tells a story he has been repeating since April 23, 1983: There was a party at the house where he was staying. In the early morning, he walked to a house two blocks away to check on Delavina as the child's mother had asked him to do earlier in the night, fearing that the child's grandparents who were babysitting would be drinking. He found the toddler dead in a bedroom with her pyjamas pulled down to the knees, a large blood stain on the bed between her legs. He tried to wake the child's grandparents, who were passed out drunk, then he ran back to his uncle's house and told everyone she was dead.
"I did not kill Delavina Mack and I did not agree to plead guilty to her murder," his affidavit reads. "I have told everyone this since I got to jail."
Proclaiming his innocence has come at a high cost for Mr. Tallio, who has served far longer in prison than he would have if he admitted the crime. In the correctional system, maintaining innocence is the same as not accepting responsibility, and the consequences have been profound.
"He's been in for 24 years longer than he had to be, had he said he did it," his lawyer, Ms. Barsky, says. "That's something he's really stuck to his principles about. I think a lot of people would say, 'I'm guilty' just to get out of prison. He somehow has stuck to it. That's his own morals. He refuses to admit to something he says he didn't commit."
Though Mr. Tallio has taken programming for other issues, including attending counselling and Alcoholics Anonymous, he has either refused to take, or was unable to enroll in, other prison programs because he maintained his innocence.
"I am unable to admit guilt because I am not guilty and I am unable to describe how and why I killed my cousin – because I did not do it," Mr. Tallio wrote in his affidavit. "I cannot complete the sex offender programs because I am not a sex offender."
Because of his lack of programming and refusal to accept responsibility for the crime, Mr. Tallio has been denied parole and other additional freedoms and privileges, including an escorted absence to visit his dying grandmother and a move to minimum security. One institutional report reads, "The only real concern is the fact that he denies committing the offence for which he is serving time."
As those who know Mr. Tallio have observed, his protestations and story have never really changed.
After more than 34 years, the case of Phillip James Tallio is far from over.
Mr. Tallio's lawyer, Ms. Barsky, says she expects it to take at least five or six months to apply to the courts to have additional samples released for DNA testing. If a judge does order them to be released, the new samples have to be tested before the appeal can proceed.
"There are a lot of steps that go into a case as complex as this," Ms. Barsky says. "We're dealing with a lot of issues that are unprecedented and that haven't been done in Canada before … so we have to figure things out as we go along."
Theresa Hood, who was pregnant with Mr. Tallio's child when he was arrested in 1983, has been attending the recent court proceedings with their daughter, Honey, who is now 33. Ms. Hood and Mr. Tallio have stayed in touch throughout the years, and she still believes he is innocent.
"To me, he's finally getting the justice he deserves that someone finally believes him," she says. "Back then, nobody believed a Native. But now somebody finally heard his story and ran with it. To me it's a blessing. I always told him, you didn't get to watch your daughter grow up, but you will be out to watch your granddaughters."
Ms. Hood says Mr. Tallio is excited about the appeal and grateful for the work that has been done on his behalf, but she has tried to make sure he knows this is only the first step in what could still be a long fight.
"I said, 'You can't think you're out right away. You got the first door open, and now we have to keep going forward. You have to be patient. The world is going to hear your story,' " she says. "We can't turn back the time, but we can get the truth. And the truth will set him free."
Their daughter, Honey Hood, now has three daughters of her own. She has only met Mr. Tallio in person once, and is still trying to comprehend the possibility that his conviction could be overturned, and that the father she has never known could one day be free.
"I'm happy that he finally got what he deserved, but at the same time I'm a little scared because I don't know how to go about building a bond with him like I have with my stepfather," she says. "And I've explained to my children that they do have another grandfather, but the only grandfather they know is my stepdad. I'm scared of how all of it is going to play out. I'm thinking when he does get out, it's going to be such a shock to him to be back in society."
Some of the same concerns are weighing on Robyn Batryn, who says she's even wondered whether she should have pushed to have his case reviewed, knowing how hard it would be for Mr. Tallio to adjust to life outside an institution.
"My guts have been churned up because I questioned myself whether I was doing the right thing by him, even though I thought he wasn't guilty," she says. "How was he going to cope himself after being in there so long, and was I putting him at risk? That's still my feeling now."
Mr. Tallio has spent his entire life in prison, and in many ways he is still a teenager, his life frozen at the point he went inside. Many of the relatives and friends who believed in him are now dead, as are witnesses and professionals who were involved with his case. Lives have come and gone while he has been behind bars. The world has changed drastically.
"He is going to need an awful lot of support," says Ms. Batryn, who has recently been going with her mother to see him every week. "He's going to find it extremely hard, I don't think he has any concept of it. It's going to be tough."
Mr. Tallio and his lawyer, Ms. Barsky, also speak regularly, and they communicate in writing as well, because he expresses himself more easily and clearly that way. In a letter to her in 2012, Mr. Tallio remembered how his grandmother made him promise never to give up, and told him, "The truth will one day come out."
"Some people have asked me why I don't just say that I did it so that I can get out on parole," he wrote in his affidavit filed with the court. "I said that I wouldn't do that, because I am innocent."
Jana Pruden is a feature writer at The Globe and Mail.
Phillip Tallio in his own words
In letters: In a 2012 letter, Phillip Tallio tells lawyer Rachel Barsky about his daily struggle with depression and suicidal thoughts in prison. Read the letter below.
In poetry: Mr. Tallio describes how an Indigenous elder's words inspired him to write a poem about how he coped with life in captivity. Read the poem below.
The letter: 'My biggest enemy right now is depression'
The poem: 'Never My Spirit, Does a Prison Hold'
When I wrote this poem, it was because of what I had heard one of our Native Elders say. He told us that there was nothing in this world that could keep our Spirits from escaping from any form of prison, whether it be the type we are in now, or whether it is the type we would face if we were civilians on the outside.
He told us that if we concentrated hard enough, we would be able to feel our Spirits leaving our bodies. But in order to accomplish this, our minds had to be totally clear of any hate towards even our worst of enemies. I tried this one night in my cell, and I was surprised that it had worked. Every now and then I feel the need to get out of the negative environment that prison presents to us everyday, so I sit back and concentrate on taking that little trip outside of these walls that hold us in.
That is how I came up with the concept for this poem. Some may call it weird, some may call me crazy, but I call it my only means of freedom while I am still in this prison.
CRIME AND CONSEQUENCES: MORE FROM JANA G. PRUDEN