Ghost in the machine

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This article was published 10/06/2006 (6676 days ago), so information in it may no longer be current.

ROBERT Nieman’s ghost won’t go away.

A few minutes after midnight Sept. 25 1986, three bullets were fired point-blank into his head.

One went in his right eye; two in his mouth. The first shot hit him as he walked in the door taking off his jacket. The second two hit him as he lay on the floor.

It was supposed to be an execution, but Nieman lingered in hospital for 27 days before dying of a brain infection. The 22-year-old was a small-time drug dealer, pimp and police informant.

Now one of the men convicted of killing him in the so-called "Rat Trial" of 1987 wants to get out of jail early, and a second claims he got an unfair trial because the main witness against him struck a secret deal with the Crown in exchange for his testimony.

If both men get their way, Nieman’s ghost will once again haunt Manitoba’s justice system.

Three people were convicted of killing Nieman; Robert Dunkley for pulling the trigger, Jose Luis Correia for helping him, and Stanley Frank Ostrowski for ordering it.

A fourth man, Jim Luzny, was also arrested, but later acquitted.

The Crown’s theory was Ostrowski wanted Nieman dead because he believed Nieman was an informant who’d bring down his $500,000-a-year cocaine empire.

Then, as now, Ostrowski claims he’s innocent.

"I didn’t do it," Ostrowski told the Free Press in one of a series of interviews conducted over the past two years. "It shouldn’t be this way, but since Day 1 I’ve had to prove by myself that I’m innocent."

Ostrowski, 56, has now spent almost 20 years in prison.

He’s currently housed at minimum-security Rockwood Institution.

He maintains he had no reason to want Nieman killed, because Nieman wasn’t the informant.

One of the witnesses against Ostrowski was Matthew Lovelace, his former drug-dealing partner. Ostrowski and his supporters, which include the Association in Defence of the Wrongly Convicted (AIDWYC), say they believe Lovelace got a deal in exchange for testifying against Ostrowski.

They point to a 1988 court case in which Lovelace was acquitted of a charge of possession of $17,000 worth of cocaine, more than a year after he testified against Ostrowski. The Crown called no evidence in his case.

Greg Brodsky, Ostrowski’s former lawyer, said in an interview if Lovelace did get a deal to testify, it wasn’t disclosed to him or the jury by the Crown.

"If there was something else they should’ve known, it could’ve tipped the balance," Brodsky said.

"If Lovelace had a deal with the Crown, it should be exposed even now."

Correia, the man convicted of confining Nieman’s roommate while Dunkley pulled the trigger, claims he’s a reformed man and should get a shot at early parole.

He also says Ostrowski is innocent.

Correia is currently serving the 19th year of his minimum 25-year sentence for his first-degree murder conviction.

In a recent court application under Section 745.6 of the Criminal Code of Canada — the faint-hope clause — he has asked to have his parole eligibility reviewed.

For Correia to get parole, however, he has to come clean, which is something he’s never done.

In support of his application, Correia has offered his explanation of his role in Nieman’s murder. He claims Nieman was killed after his unnamed drug supplier was arrested by an undercover police officer.

In a jailhouse interview before his faint-hope application, Correia said Ostrowski was not that drug supplier, nor was Ostrowski involved in Nieman’s killing.

"Frank was railroaded," Correia said.

"I ran the circuit back then. I knew who was who. I didn’t know Frank until after I was arrested. I only got to know him through our trial.

"If some people would’ve done their jobs, Frank would not have been in this mess."

When asked then who ordered Nieman’s murder, Correia just smiled.

"I cannot bury somebody just so I could get Frank out," he said. "I didn’t do it 19 years ago and I won’t do it now. I’ve done my 19 years and I’m proud to say I did it on my feet with my head held high. My word is gold in jail. I’m not going to weasel out of it."

That may soon change.

Insiders say Correia may have no other choice but to name the person who directed Nieman’s assassination to show the jury he’s truly a reformed man.

There is no big smoking gun in Ostrowski’s case. There is no DNA to absolve him, no questionable hair samples.

All that Ostrowski has, despite years of hiring private investigators and chasing down affidavits to support his claims of innocence, is the Nov. 16, 1988 trial transcript in which the chief informant against him was inexplicably acquitted on drug charges.

Lovelace was arrested Sept. 14, 1986 for trafficking cocaine; police seized 85 grams of almost-pure cocaine from behind the seat of his truck. At the time, cocaine sold for $200 a gram.

Within hours, police raided Ostrowski’s house, finding 308 grams of cocaine and $50,000 in cash in a hidden floor safe in the basement of his Glenway Avenue home. Lovelace knew where the safe was because he helped install it, Ostrowski said.

Lovelace later testified he informed on Ostrowski to get out of the drug world.

He also testified about the gun used to kill Nieman, a small pistol given to Ostrowski in 1985 to cover a drug debt.

Ostrowski said in an interview he hid it in a hallway staircase at his family’s rental building at 748 Sargent Ave., where his father used to operate a small shoe repair shop. He said Lovelace knew where it was.

Lovelace testified: "Frank told me that he gave a gun to Jim, or that gun to Jim, and that Jim was going to give it to his friends, or Jim’s friends were going to take care of Robbie."

But in Lovelace’s original police statement, he told officer Mitch McCormick something else.

McCormick testified Lovelace told him he (Lovelace) "gave a gun to Jim Luzny’s friends," four times in the same statement.

Lovelace also told the jury under oath he did not make any deal to have his Sept. 14 drug charges wiped clean.

"I did not make any deal and I was not promised one," he said. "Police told me that the charges against me were serious and they would appreciate any help I could give them."

However, court records show the drug charges against Lovelace were later dropped in what can only be described as one of the shortest trials in Manitoba history.

On Nov. 16, 1988, Lovelace was acquitted in courtroom 303 of possession of about three ounces of cocaine for the purpose of trafficking by provincial court Judge Ian Dubienski. Hymie Weinstein was his lawyer. Pat Clarke was the Crown attorney.

Ms. Clarke: The Crown will be proceeding to trial at this point, and has no evidence to call.

The Court: Enter a dismissal — acquittal.

Ms. Clarke: Thank you.

Court Reporter: Did you say "acquittal"?

The Court: Acquittal.

Ms. Clarke: I believe that completes this afternoon’s matters.

Clerk of the Court: Order. All rise.

Since testifying against Ostrowski, Lovelace has had little contact with police or the courts other than being divorced from his wife about two years ago.

His ex-wife, in an affidavit, described Lovelace as having a paranoid personality.

"He testified in a criminal case some years ago and his testimony sent a man to jail," she said in the document.

"Since then he has been afraid this person will hurt him. He always looks over his shoulder and sits with his back to walls."

Lovelace did not respond for a request to be interviewed.

Alan Libman of AIDWYC said the group is aware of this transcript and is investigating Ostrowski’s claim he was wrongly convicted.

AIDWYC represents James Driskell and David Milgaard, the subjects of ongoing public inquiries into their overturned murder convictions in Manitoba and Saskatchewan.

A Manitoba Crown attorney has been appointed to help AIDWYC obtain documents in the Ostrowski case in the event AIDWYC files a 696 application under the Criminal Code asking for the federal justice minister to review Ostrowski’s case.

A fourth man was also charged with first-degree murder in Nieman’s killing, though his role was never specified.

Jim Luzny, then 34, was arrested March 14, 1987, three weeks before Ostrowski and Correia’s murder trial was to begin. He had also been arrested Sept. 9, 1986, on drug trafficking charges. He was caught in possession of LSD, cocaine and marijuana.

Luzny, Ostrowski and Correia sat together in the Court of Queen’s Bench courtroom prisoner’s box, each facing the chance of being convicted of first-degree murder, and being sent to prison for at least 25 years before being eligible for parole.

Dunkley, the triggerman, wasn’t sitting with them.

In the days leading up to the murder trial, he’d swung a deal with the prosecution: He’d plead guilty to second-degree murder and serve 15 years in prison before being eligible for parole.

In exchange, he’d testify against Luzny, Ostrowski and Correia.

But it didn’t turn out that way. Dunkley’s plea-bargained deal fell apart March 24 when Mr. Justice Wallace Darichuk upped his parole eligibility to 20 years — 15 wasn’t enough for the crime.

As a result, Dunkley proved to be the most hostile of witnesses.

He refused to implicate anyone other than himself and Correia.

Correia had earlier confessed to police he drove Dunkley to the murder scene, but not who ordered Nieman killed.

Dunkley’s original police statement doesn’t mention Ostrowski at all. On the witness stand, Dunkley said he first met Ostrowski in the remand centre after both had been arrested.

Dunkley remains in prison in Quebec. For security reasons, an interview request was denied by the Correctional Service of Canada.

Luzny was released at trial because there was no evidence against him. He lives in Winnipeg.

His lawyer at the time, Hersh Wolch, said recently Luzny can’t be charged again with the same crime.

In a recent interview, Luzny said he had no comment on Correia’s "faint hope" application or Ostrowski’s claim of innocence.

"Everybody in jail says he’s innocent," Luzny said. "Nobody put words into anybody’s mouth."

Another man is helping Ostrowski’s cause, though he doesn’t know it.

James Driskell was sentenced to life in prison for the 1990 first-degree murder of his friend Perry Dean Harder. DNA tests revealed more than a decade later that hair samples used to convict him were wrongly identified.

New evidence also showed the two main Crown witnesses against Driskell received tens of thousands of dollars in compensation and moving expenses in exchange for their testimony. One of those witnesses also received a secret immunity deal to free him from facing criminal charges in Saskatchewan.

A special inquiry to examine Driskell’s conviction starts July 17.

How does this help Ostrowski?

He claims the chief witness against him, Lovelace, also got a deal that was not disclosed to Brodsky or the jury that ultimately convicted him. Brodsky was also Driskell’s lawyer.

Brodsky will testify at the upcoming inquiry, as will George Dangerfield, the now-retired Crown attorney who prosecuted Driskell. Dangerfield also prosecuted Ostrowski.

Frank Ostrowski has spent most of the past 20 years inside medium-security Stony Mountain. He was transferred to the minimum-security Rockwood Institution about two years ago. Rockwood is for low-risk inmates and those approaching release.

He walks with a cane because of osteoarthritis degeneration of his spine. He also has arthritis in his hips.

"It stops me from functioning properly. I can’t run. I can’t walk."

His daughter Amber and son Frank Jr., for the most part, have stuck by his side over the years. He divorced his wife in October 2000.

Ostrowski also started a custom belt-making business while serving time at Stony Mountain Institution, and sells them through the Internet at www.marsucci.com. The former hair stylist also cuts inmates’ hair.

He appealed his conviction up to the Supreme Court in 1990, but only the late Manitoba appeal court Judge Joe O’Sullivan sided with him.

Ostrowski could apply for a "faint hope" release like Correia and the recently paroled Colin Thatcher, but he refuses.

"I want a new trial," Ostrowski said. "I want to prove I’m innocent."