Crown concedes Ostrowski murder conviction a ‘miscarriage of justice’ By: Katie May Posted: 6:53 PM CDT Monday, May. 28, 2018 Last Modified: 7:18 AM CDT Tuesday, May. 29, 2018 Updates

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More than 30 years after he was convicted of a crime he always maintained he didn’t commit, Frank Ostrowski was vindicated Monday, as Crown lawyers admitted the murder case against him was a “miscarriage of justice.”

“The miscarriage of justice in this case falls squarely at the feet of the state,” Crown attorney Randy Schwartz told the Court of Appeal, wrapping up final arguments in a case that led the Crown to concede the conviction can’t stand.

The appeal brought to light fresh evidence of undisclosed police notes and a secret deal between prosecutors and a key Crown witness in Ostrowski’s 1987 murder trial for allegedly ordering the 1986 drug-related shooting death of 22-year-old Robert Nieman.

Many of those who were involved in prosecuting Ostrowski for murder — including former police officers and Crown attorneys — testified at the Court of Appeal in Winnipeg during hearings that began last year, and until now had been shrouded under court-ordered publication bans.

While Manitoba’s top court decides how the conviction should be permanently dropped — either by an acquittal or a stay of proceedings — Ostrowski said Monday he’s “glad everything’s going to be resolved.”

“It could be a stay, it could be an acquittal. The Crown has conceded; that’s the bottom line,” he told reporters gathered outside the courthouse, expressing his frustration about how the case against him was prosecuted in 1987.

His arrest, conviction, 23 years in prison, and subsequent release on bail conditions have kept him under the justice system’s watch for more than three decades.

“They have no case,” Ostrowski said. “It’s bull—-, that’s what they did to me.”

Strict publication bans and sealing orders kept details of his appeal from being made public until the Court of Appeal formally lifted most of those orders Monday.

“As long as I’m acquitted, take these bans off me and set me free,” Ostrowski said.

The appeal court reserved its decision on whether to acquit Ostrowski or enter a judicial stay of proceedings.

Both options would have the same final outcome, reversing his conviction, but Ostrowski’s defence team argues he’s entitled to an acquittal to guard against any stigma that may be associated with a stay of proceedings.

Crown lawyers argued against an acquittal, saying there is still enough evidence a jury could reasonably find him guilty should the case go to trial again.

However, both sides agreed a retrial won’t happen.

No matter the Court of Appeal’s final decision, Ostrowski indicated he’s pleased with the Crown’s concession — one that stopped short of declaring him wrongfully convicted. He remains on bail until Court of Appeal Justices Holly Beard, William Burnett and Jennifer Pfuetzner make their decision.

Ostrowski, a former hairstylist and drug dealer, was represented by Toronto-based lawyer James Lockyer, founding director of the Association in Defence of the Wrongly Convicted, and Winnipeg lawyer Alan Libman. Their legal battle wrapped up Monday, after Ostrowski went through an unsuccessful prior appeal and a failed bid to take his case to the Supreme Court.

In 2009, Ostrowski was released from prison after new information came to light about how his case was handled. Five years later, citing a reasonable likelihood of a wrongful conviction, the federal government ordered the case be reviewed by Manitoba’s Court of Appeal.

Schwartz concluded Monday the murder case against Ostrowski was “irreparably prejudiced” because a report from then-Winnipeg Police Service Sgt. N. Jacobson wasn’t disclosed to Ostrowski’s defence lawyers — and neither was a deal that secured a key witness to testify against Ostrowski.

Matthew Lovelace testified Ostrowski had put a hit out on Nieman, who he accused of being a rat. In an earlier phone call with Jacobson, though, Lovelace didn’t mention Nieman. Jacobson’s notes from the call weren’t shared with Ostrowski’s defence team and Lovelace denied in front of a jury he had been offered a deal to make drug charges against him go away in exchange for his testimony.

“It had to be disclosed. It wasn’t,” Schwartz said.

Although the Crown acknowledged Ostrowski’s trial wasn’t fair, Schwartz said the evidence presented to the Court of Appeal “is not clear enough” for the court to find provincial Crown attorneys deliberately hid evidence and covered up the Lovelace deal.

Lockyer disagreed, and argued Ostrowski is the only one who has “been prejudiced” from the ways the case was mishandled.

If the deal had been revealed during the 1987 trial, Lockyer said, the court would have declared “an instant mistrial.”

katie.may@freepress.mb.ca

Twitter: @thatkatiemay

Katie May
Reporter

Katie May is a general-assignment reporter for the Free Press.

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