Judge orders release of DNA in convicted child killer's appeal

Lawyers for Phillip Tallio, convicted of murdering his 22-month-old cousin in the 1980s, claim the DNA could exonerate him — and prove another relative was the real killer.

Lawyers for Phillip Tallio claim sample could clear him 35 years after toddler's death

Phillip James Tallio was 17 when he was convicted of second-degree murder. Now, 35 years later, his lawyers say DNA evidence must be retested. (Rachel Barsky)

In a unanimous decision, B.C. Court of Appeal judges have ordered the release of a sealed DNA sample from a 35-year-old murder case for further testing.

Lawyers for Phillip Tallio, convicted of murdering his cousin in the 1980s, claim the evidence could prove he was wrongfully convicted — and potentially prove another relative was the real killer. 

Tallio was 17 when he was accused of suffocating his cousin, 22-month-old Delavina Mack, at a party in Bella Coola, B.C., in 1983.

He originally pleaded not guilty, but his lawyers changed that plea to guilty nine days into his trial. Tallio was convicted of second-degree murder in 1984.

Described in court documents as having an intellect "far below his years," Tallio has maintained his innocence ever since. He has repeatedly been denied parole. 

Last year, Tallio's lawyers successfully applied to appeal his conviction — more than three decades after the appeal deadline expired.

They argued for the release of the DNA sample for further testing to build their appeal, which has yet to be filed.

Rachel Barsky, one of Tallio's lawyers, said the release order is a good sign for the case.

"They have granted everything that we've asked for," said Barsky. "That's a very positive development… and a very significant step forward."

Tallio, seen in an undated photograph during his childhood, has maintained his innocence for 35 years. (Rachel Barsky)

DNA evidence

Dozens of tissue samples taken from the dead toddler were kept at B.C. Children's Hospital until 2011, when the Innocence Project — a non-profit legal organization that is committed to exonerating wrongly convicted people with DNA evidence — requested they be tested.

Initial testing showed Tallio was "excluded" from one sample — that is, ruled out as the source of the DNA — but not from another. His lawyers said that simply means the second test was inconclusive, given the technology in use at the time.​

In 2013, another partial sample from male DNA concluded the killer could have been any of Tallio's male relatives. 

Tallio's lawyers said their client's paternal uncle, Cyril Tallio Sr., was also at the party where the child was killed. DNA testing said he "cannot be excluded" as a suspect.

Cyril Tallio Sr. died in 2014. Court documents say he had a criminal record related to sexually assaulting children.

In their reasons for judgment, the B.C. Court of Appeal judges said modern testing available at the Netherlands Forensic Institute could also differentiate Tallio's DNA from that of a relative who is "another potential suspect."

"It is in the interests of justice to allow the testing to occur," Justice Elizabeth Bennett wrote on behalf of the panel.

"With this potential exclusion, any question as to a possible connection between the applicant and physical evidence tying him to the crime would be put to rest."

'Due diligence'

There's a chance the partial sample will return an inconclusive result, given the passage of time and potential contamination.

But regardless, the lawyer said, the chance needs to be seen through.

"This is about doing our due diligence for Phillip Tallio's case and making sure we do everything humanly possible to advance all the fresh evidence we need to advance," Barsky said.

Rachel Barsky, one of Tallio's lawyers, says the granted application is a 'strong step' for her clients appeal. She was also on the team of lawyers who successfully applied to appeal his murder conviction in 2017. (CBC)

There was no DNA testing available when Tallio was convicted. The Crown argued against further testing, saying the sample was likely contaminated and unlikely to give conclusive evidence.

Bennett said the Crown "misses the mark with that argument" and that it was "irrelevant" for an appeal hearing.

The RCMP have been ordered to send the sample to the Netherlands for the testing "as soon as reasonably possible." Once it arrives, Dutch officials will have six weeks to feed results and analysis back to Canada.

With files from Farrah Merali and Eric Rankin