Crown says convicted killer has 'selective memory'

The guilty plea of man who claims he wrongly spent 37 years in prison should not be set aside because of his "evolving explanations" and "selective memory" of events surrounding the 1983 murder of a toddler, a Crown lawyer says.

Janet Dickie told the British Columbia Appeal Court on Wednesday that Phillip Tallio has exaggerated some aspects of his testimony while giving different details about his whereabouts around the crime scene in Bella Coola on April 23, 1983.

"Nothing supplants the presumption that he pled guilty because he was guilty," Dickie said.

Tallio admitted as such to his own lawyer when he signed a plea deal to second-degree murder and never explicitly denied committing the crime to a psychologist and a psychiatrist who were experts at his trial, Dickie said.

Tallio also told the two experts that he was in a blackout and didn't remember going to the house where court has heard he found 22-month-old Delavina Mack's lifeless body, she said.

Thomas Arbogast, one of Tallio's lawyers, has told the court his client was 17 at the time of the offence but experts determined he was cognitively much younger and likely to have fetal alcohol spectrum disorder.

Tallio therefore did not understand he was signing a document that had him admitting to killing the little girl, Arbogast said.

Tallio received a life sentence without chance of parole for 10 years as part of the plea agreement. He was never released because he refused to admit his guilt to the parole board.

Dickie said there were inconsistencies in Tallio's testimony, pointing to "bald assertions" he made about not paying attention to social workers and lawyers but then letting them take care of everything while not trusting them.

‘"The court is therefore being asked to quash the guilty plea of we say a guilty man on the claim that the Crown had apparently no case whatever, which again we say this is not borne out...."

Part of Tallio's testimony was extremely detailed, including the brand and colour of the socks he was wearing on the morning of Mack's murder, Dickie said. He also said he didn't change or remove any of his clothes before a police interview, she said.

However, she said, he was not wearing any socks when an officer spoke to him about five hours after the girl was found dead. A pair of shorts seized from him had blood on them, Dickie added, though the source of it is unknown.

Tallio's pauses to her questions in court suggested he was trying to "figure out favourable answers," Dickie said.

But Justice S. David Frankel countered that someone slow to think of a response about what happened decades earlier is not necessarily hiding the truth.