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B.C. court to rule on testing of DNA in 1983 case

Robyn Batryn, holds a picture of Phillip Tallio, at her home in Maple Ridge, B.C. on July 7, 2017.

BEN NELMS/The Globe and Mail

A man who says he has served 35 years in prison for a murder he did not commit will find out on Monday whether tissue samples gathered in 1983 will be released for DNA testing that could further bolster his claims of innocence.

"I have been waiting for this decision for 2 1/2 years," said defence lawyer Rachel Barsky, who has been working on the case for seven years, first as a student and now as co-counsel on the case. "This has been quite a process, and this is not to say the DNA testing will even work. It's just the release of the sample."

The B.C. Court of Appeal will pass down its decision in chambers on Monday morning.

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Phillip James Tallio, now 52, was convicted in the fall of 1983 of the rape and murder of his 22-month-old cousin Delavina Mack, who was killed inside a house in Bella Coola, B.C., after a night of drinking parties in the community that April. Mr. Tallio was 17 years old at the time.

With no direct evidence linking Mr. Tallio to the murder, the case rested on the teen's alleged confessions to police and to a forensic psychiatrist, both of which raised serious questions even then.

In the first statement, Mr. Tallio is alleged to have confessed to RCMP after 10 hours of interrogation, during which the cognitively impaired teen had not been given a chance to speak with a lawyer or anyone else who could help him. Although he maintained his innocence in the recorded interrogation, he apparently confessed in a period during which the police tape recorder failed. That alleged confession was excluded from his trial because of questions about whether it was voluntary or not.

The other alleged confession was made to forensic psychiatrist Robert Pos and was also unrecorded. Mr. Tallio later denied making either of the confessions and said he'd never even spoken with Dr. Pos. As with other key participants in the decades-old case, Dr. Pos is now deceased.

The court was considering whether to admit the alleged statement made to Dr. Pos into the trial when Mr. Tallio accepted a plea deal to second-degree murder. Pleading guilty to second-degree murder meant he would be eligible for parole after 10 years, rather than the minimum 25-year parole eligibility he would face with a first-degree murder conviction. But Mr. Tallio has steadfastly proclaimed his innocence ever since and has been repeatedly denied parole because of his refusal to accept responsibility for the crime. He has now been imprisoned for nearly 35 years and is one of the country's longest serving inmates.

Ms. Barsky said Mr. Tallio was granted escorted temporary absences for the first time at a parole hearing in December, but none have occurred.

Among those who fought to have Mr. Tallio's conviction re-examined are retired correctional officer Marie Spetch, who worked with Mr. Tallio at the Willingdon Youth Detention Centre in 1978, and her daughter, Robyn Batryn, who pushed the case until it was picked up by the UBC Innocence Project in 2009.

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In June, the Innocence Project won the historic right for Mr. Tallio to appeal his conviction more than three decades after the appeal deadline had passed.

The application not only raised serious questions about the police investigation and administration of justice in the area at the time, but included the 2011 discovery of 45 tissue samples that had been taken during the child's autopsy and were still being stored at the BC Children's Hospital in Vancouver. (The rest of the RCMP exhibits in the case were found to have been lost or destroyed.)

DNA testing of one sample excluded Mr. Tallio and another was inconclusive, but testing methods have since become more advanced.

The Crown maintains Mr. Tallio was properly convicted and has fought against releasing the remaining tissue samples for further testing on a number of grounds, including privacy, concerns about the contamination of samples gathered before DNA protocols existed and the reliability of the testing.

"At this point, all [Mr. Tallio] is asking for is just a chance. It really is just a chance," Ms. Barsky said. "We don't know if the testing will even work, and there are no guarantees."

If the Court of Appeal panel orders that the remaining samples be released, Ms. Barsky says they will be taken by RCMP to a laboratory in The Hague for specialized testing not available in Canada. She said it could then take about six weeks for testing to be done and a report to be prepared.

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"I've been on this case, in April, it will be seven years," Ms. Barsky says. "That's a very long time to spend on a case, and we've always submitted in our materials that this is a horrendous miscarriage of justice."

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