Court of Appeal quashes Ostrowski first-degree murder conviction By: Katie May Posted: 7:00 PM CST Tuesday, Nov. 27, 2018 Last Modified: 10:14 AM CST Wednesday, Nov. 28, 2018 Updates

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This article was published 26/11/2018 (2223 days ago), so information in it may no longer be current.

More than 30 years after a Winnipeg man was convicted of a murder he claims he didn’t commit, undisclosed police notes and a secret deal involving a key witness has led to Manitoba’s top court to reject the decision.

The Court of Appeal officially quashed the first-degree murder conviction 69-year-old Frank Ostrowski has been fighting since a jury found him guilty in 1987 of orchestrating the drug-related shooting of Robert Nieman, 22.

In a long-awaited, 44-page decision released Tuesday afternoon, the panel of judges decided to enter a judicial stay of proceedings on Ostrowski’s murder conviction, after Crown lawyers acknowledged there had been a miscarriage of justice.

“I’m vindicated and I’m a free man now, and nobody can look at me and say, ‘There’s a murderer,'” Ostrowski said, finding out about the court’s decision via a phone call from the Free Press.

“I feel good about it, but I would have liked to have an acquittal… a total acquittal would take away all stigma, you see.”

Ostrowski hasn’t been acquitted because there’s still plenty of evidence against him, the appeal court ultimately decided.

Despite fresh evidence that only came to light after Ostrowski retained wrongful-conviction lawyers to work on his appeal, the panel of judges decided it would still be reasonable for a jury to find Ostrowski guilty if the case were to undergo a new trial.

A new trial won’t happen, all sides agreed, because of the decades that have gone by since the 1986 shooting.

The “miscarriage of justice” for Ostrowski, Court of Appeal Justice Holly Beard wrote in the decision, was two-fold: a prosecution deal with a police informant, Matthew Lovelace, who testified against Ostrowski during his trial was never disclosed to defence lawyers. Neither were notes and a report from a Winnipeg Police Service officer, Sgt. N. Jacobson, who had a phone conversation with the informant a few hours before the murder.

“There were inconsistencies between Mr. Lovelace’s testimony about the content of the message that he left with Sgt. Jacobson, the note that Sgt. Jacobson left for the other officers and the Jacobson report that could have been used by the defence to discredit Mr. Lovelace’s testimony, had they been disclosed to the defence prior to the murder trial,” Beard wrote in the decision, also signed by Justices William Burnett and Jennifer Pfuetzner.

Ostrowski’s lawyer, James Lockyer, founding director of the Association in Defence of the Wrongfully Convicted, had been working on the appeal since 2001, alongside Winnipeg defence lawyer Alan Libman. On Tuesday, he said he’s happy for Ostrowski but disappointed no one has been held accountable for how the case was handled as far back as 1986. Since then, rules for the disclosure of evidence and Crown-witness deals have been tightened.

“After 32 years, it’s good that Frank’s conviction is finally being set aside and he no longer has it on his shoulders. But it is unfortunate, as so often happens in these cases, that there’s no responsibility,” Lockyer said. “Thirty-two years, a miscarriage of justice, and we sort of shrug our shoulders and carry on.

“It’s not good enough to me, but I’m afraid that’s what’s happened here. There’s no accountability,” he said.

“An acquittal is a more resounding exoneration. No question, a judicial stay of proceedings seems a rather dry way to end a 32-year miscarriage of justice.”

Prior to Ostrowski’s trial in 1987, the defence lawyers representing him suspected there was a deal between prosecutors and Lovelace, who later had all of his drug charges dropped by the Crown after he testified about Ostrowski’s alleged involvement in ordering Nieman’s death.

Crown prosecutors handling the murder trial maintained there was no deal, and the jury was never told about one.

The provincial prosecutors would later testify they didn’t know about the deal Lovelace’s defence lawyer made with federal prosecutors who were handling the drug charges against him. On appeal, Ostrowski’s lawyers argued they must have known.

Several prominent police officers, Crown attorneys and judicial staff who worked on the case in the late 1980s — including former senior Crown prosecutor George Dangerfield, former junior Crown prosecutor Sidney Lerner (now a provincial court judge) and Lovelace’s former lawyer, Hymie Weinstein, were called to testify in the Court of Appeal last year.

Weinstein testified he wanted the deal to be kept secret from his client until after Ostrowski’s murder trial so it wouldn’t taint his testimony.

Evidence of the deal was key to getting Ostrowski’s conviction overturned, and it took years to get proof, Lockyer said. There was no mention of it in Manitoba Justice’s file on the murder case. So Lockyer turned to the feds.

“I remember I had asked the federal Crown to disclose the file to me, and they called me back and said, no, that they couldn’t,” he recalled. “I said, if you were me, would you want to see what was in that file? And there was a long pause and then he said, ‘Yes, I would.’ And so I chased it.”

In 2014, then-minister Peter MacKay decided there was a reasonable likelihood of a miscarriage of justice and referred the case back to Manitoba’s Court of Appeal. It took another three years for the court to hear the case — a portion of which still remains sealed and protected by a publication ban — and six months to release its decision.

Ostrowski officially joins the ranks of other high-profile wrongful-conviction cases in Manitoba that were prosecuted by Dangerfield: Kyle Unger, James Driskell and Thomas Sophonow.

He’s been on bail since 2009, following court-ordered conditions that end with the overturning of his conviction.

“I’m happy that I’m a free man now, and I’m upset at the judicial system for taking so long to come to this kind of decision. There should be a process set up so that it would never take this long for anybody else,” Ostrowski said.

katie.may@freepress.mb.ca

Twitter: @thatkatiemay

wfppdf:https://wfpquantum.s3.amazonaws.com/pdf/2018/87370_r_v_ostrowski_2018_mbca_125.pdf|Ostrowski decision:wfppdf