After Phillip Tallio’s purported confession to an RCMP officer was ruled inadmissible at his 1983 trial in Prince Rupert, only one piece of evidence remained that directly implicated the Bella Coola teen in the murder of a young girl, according to the prosecutor who helped put him behind bars. That evidence was incriminating statements Tallio reportedly made to Dr. Robert Pos, then psychiatrist-in-chief at the Forensic Psychiatric Institute in Port Coquitlam.
Among the statements that Pos attributed to Tallio in the report of his unrecorded interview was: “I didn’t think she died … when I put a pillow on her head … it came out of the blue, I didn’t plan on the pillow doing this to her.”
Faced with this compelling report was Tallio’s defence counsel Phil Rankin, a young lawyer, then a four-year member of the bar, who was born into a prominent Vancouver family with a history of social justice advocacy. He is the son of Harry Rankin, the long-serving Vancouver alderman and attorney who fought to establish B.C.’s legal aid system in the 1970s.
Rankin had intended to challenge the admissibility of the evidence from Pos, according to Kevin Woodall, a lawyer who represented Rankin and his co-counsel, Ellen Bond, during a challenge last month of a publication ban surrounding Tallio’s attempt to appeal his second-degree murder conviction.
Deirdre Pothecary, who was the Crown prosecutor for Tallio’s 1983 trial, said in a sworn affidavit that if the statements to the psychiatrist had been excluded from trial, “I believed that Mr. Tallio would have likely been acquitted.”
In Pothecary’s affidavit, filed with the court registry this year as Tallio’s lawyers made his pitch to be allowed to appeal, she recalled: “However, had the statements been ruled admissible, the court would have likely convicted Mr. Tallio of first-degree murder with a life sentence and 25 years in prison before parole eligibility.”
But after the confession to the RCMP was ruled inadmissible — a coup for the defence that led the Crown to react with “dismay,” according to Woodall — Rankin and Bond “seized upon the opportunity presented by the favourable ruling, and negotiated a plea agreement with the Crown,” Woodall wrote in a submission to the court, as he argued last month to delay publication of the trial lawyers’ names.
The plea agreement was for Tallio to plead guilty to second-degree murder, which carried a parole eligibility of 10 years rather than 25 years.
“At that time, no one would have anticipated that the appellant would remain in jail for 34 or more years,” Woodall said in his submissions to the court.
Tallio remains in prison today, 24 years after the start of his parole eligibility, with the Parole Board of Canada citing his steadfast proclamation of his innocence as a reason for denying his release.
His amended notice of appeal suggests he may allege as one ground for his appeal that his trial lawyers were “ineffective” because they failed to challenge the admissibility of the Pos evidence.
In his own sworn affidavit, now filed with the court, Tallio says he didn’t understand what was happening when his lawyer entered his guilty plea.
“One day during my trial, before court began, Mr. Rankin came to my cell. He stood in front of the bars of the cell and said that there was going to be something coming up in court that afternoon, and we were going to go along with it. He told me what we were going to do. I do not recall Mr. Rankin asking me what I wanted to do,” Tallio said in his affidavit.
“Mr. Rankin never explained to me what a guilty plea meant. He just spoke legal jargon. He did not explain that a guilty plea meant that I was saying that I had raped and killed Delavina (Mack). I now understand that it was a plea bargain, but at the time I did not understand it.”
But lawyers for the Crown say Tallio understood what he was doing at the time. In court submissions last month opposing Tallio’s application to appeal, the Crown included statements made by Tallio in the years after his sentencing that, they say, show his understanding of the plea bargain.
Included were passages from a 1988 letter Tallio wrote to his sentence manager, saying: “When they brought in the psychiatrist, he came in with a statement he said I gave him. … Therefore, my lawyer made a plea bargain. The deal was this. I agree to second-degree murder, and they would not use (the) Doctor Pos testimony. Although my family wanted me to keep fighting it, I felt that parole eligibility sounded better at 10 years, rather than 25. But if I had known more like I do now, I would have tried to fight it.”
After the guilty plea, Tallio was angry with Rankin, according to a handwritten letter from Rankin to Pothecary just before sentencing. The note forms part of Pothecary’s affidavit filed with the court.
“Tallio is refusing to come out of his cell to talk to me,” Rankin wrote. “The guards said he wants to fire me.”
Pothecary said in her affidavit she had “a recollection that matters were resolved by the next day.”
Rankin and Bond went on to “long and distinguished careers at the bar,” Woodall wrote in his court submissions.
The trial lawyers are limited in what they can say now because of solicitor-client privilege. Court policy, Woodall said, prevents them from “telling their side of the story until a later stage in the proceedings.”
In his submission to the court, Woodall also noted: “When (Rankin and Bond) have had an opportunity to complete the record it will become clear that they were acutely aware of the particular susceptibilities of First Nations people within the criminal justice system, and youth in particular.”
In an emailed statement, Woodall said Rankin and Bond “challenged the ethnic makeup of the jury as it did not include Aboriginal persons. In 1984, this (challenge) was an extremely unusual, perhaps unprecedented step to take. This is strong evidence of the diligence, care and thoughtfulness with which my clients defended Mr. Tallio.”
Mary Ainslie, who acted on behalf of the Crown in the fight against Tallio’s bid for an appeal, argued that Rankin and Bond had effectively represented Tallio.
“Trial counsel would never have entered the guilty plea unless he was instructed to do so, and in light of an acknowledgment of guilt. The plea could not have been entered without it,” she wrote in a court submission.
She continued: “Trial counsel arranged for the applicant to have a chance at freedom, despite brutally sexually assaulting and suffocating a child.”
When Justice Elizabeth Bennett of the B.C. Court of Appeal ruled late last month to lift the publication ban covering the names of Tallio’s trial lawyers, she noted one of Woodall’s arguments for delaying publication of Rankin and Bond’s names was because the lawyers “may not have to respond, because it may be that more DNA testing would exonerate Mr. Tallio, and the issue of their handling of the case will become a non-issue.”
The issue of DNA testing was also cited as a reason in Bennett’s decision, late last month, to allow Tallio’s appeal to proceed. But from a review of documents filed with the court registry, it seems the testing of 34-year-old samples could be a source of contention as the appeal proceeds.
By: MATT ROBINSON & DAN FUMANO
Source: theprovince.com
Be the first to comment