'Glad this is almost over': Crown, defence agree Frank Ostrowski's murder conviction should be dropped
Winnipeg hairstylist spent 23 years in prison; justices reserving decision whether to stay charges or acquit
Thirty years after being convicted of murder and nine years after being released on bail, a Manitoba man is still waiting to learn whether he will be acquitted.
"I'm glad this is almost over," said Frank Ostrowski as he left court Monday, still on bail and awaiting the Manitoba Court of Appeal's decision, but confident he will soon be a free man.
"I'm feeling great," he said. "The Crown has conceded ... could be a stay, could be acquittal, but the Crown has conceded, that's the bottom line. They have no case."
Lawyers for the Crown and the defence have told the Manitoba Court of Appeal that they agree Ostrowski's conviction cannot stand.
The Crown is asking for a judicial stay of proceedings, which would close the case.
The defence wants the court to go a step further and formally acquit Ostrowski.
Key witness had charges stayed in exchange
Ostrowski was found guilty of ordering the shooting death of a drug dealer in the 1980s and was convicted largely on the testimony of a key witness — Matthew Lovelace — who had separate charges of cocaine possession stayed.
Ostrowski's lawyers and the jury were never told about that arrangement and Lovelace told the trial he did not receive any favours in exchange for his testimony.
"It's wonderful that Mr. Ostrowski is being vindicated in this way," said the original defence lawyer, Greg Brodsky, who confirmed Monday that he never knew about Lovelace's deal.
"It goes to show that you can't give up, you can't rest. Sometimes it takes longer."
The federal government deemed the case a likely miscarriage of justice in 2014 and ordered the Manitoba Court of Appeal to review it.
Ostrowski, a former hairstylist who became a cocaine dealer, spent 23 years in prison after being found guilty of first-degree murder.
The victim, Robert Nieman, was also involved in drug trafficking and was a police informant.
He has always maintained his innocence.
Acquittal or stay?
The main issue now is "the appropriate remedy," Appeal Court Justice Holly Beard said.
The three Appeal Court justices have the option of deciding whether to acquit or impose a judicial stay.
But Crown prosecutor Randy Schwartz says they will have largely the same effect, and the Crown and defence lawyers "agree that this case be permanently terminated."
Crown and defence 'agree that this case be permanently terminated.'- Prosecutor Randy Schwartz
Schwartz, a prosecutor from Ontario, was brought in to help with the case and avoid issues of bias.
"This should not come to an end by a Crown's decision," Schwartz told the court, "it should come through a judicial order."
David Asper, a Winnipeg lawyer and businessman, said the principal difference between a judicial stay and an acquittal is one of finality.
'Can't leave the person ... hanging in limbo'
Judicial stays, which come from the judges, differ from Crown stays in that they don't allow the case to be brought against the accused again, Asper said. But he said they leave the matter undetermined, unlike a verdict.
"I've never liked judicial stays as a remedy for wrongful convictions, and in my opinion, the appropriate way to proceed is an acquittal," he said.
"If you've found that there's been a miscarriage of justice then you have to end the matter. You can't leave the person who's wrongly convicted hanging in limbo."
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Asper said wrongful convictions are rare in the Canadian justice system. But when they do happen, he said they're ruinous for the victims.
"It destroys their life. It destroys their entire life. Just think about it. Go to jail for 23 years. Go to jail for 10 years for something you didn't do," he said.
"It's deep psychological rebuilding, and in some cases it's not possible. The damage is so profound that you're never going to repair it."
Crown says new trial hard, but not impossible
Schwartz says a combination of the non-disclosure of material at Ostrowski's trial and the amount of time elapsed makes a new trial very difficult.
However, Schwartz warned despite the hurdles faced with a new trial, there were facts about the case on which a new jury would focus.
"Even taking into account fresh evidence a reasonable jury could conclude the appellant [Ostrowski] was party to the offence of first-degree murder," Schwartz said.
Ostrowski's lawyers, James Lockyer and Alan Libman, say an acquittal is the only remedy.
The justices reserved their decision.
Police report suggested hit was ordered
Ostrowski was one of three men convicted in Nieman's 1986 murder. Robert Dunkley was convicted of pulling the trigger and sentenced to life in prison. Jose Luis Correia was sentenced to life in prison but was granted early release and was deported to his home country, Portugal.
Also undermining the case against Ostrowski: a report written by a Winnipeg police officer, based on a tip to the Winnipeg police vice squad, suggested a "hit" had been ordered. However, the officer wrote the hit wasn't against Nieman, the man Ostrowski was convicted of killing.
Both the officer's report and Lovelace's deal were exposed in hearings held in late 2016 and early 2017 in front of the Manitoba Court of Appeal.
Ostrowki's case bears striking similarities to three others in which the convictions were eventually overturned.
- James Driskell was convicted of murder in Winnipeg in 1990 based in part on testimony from a witness who was given tens of thousands of dollars in expense payments as well as immunity on an arson charge. The verdict against Driskell was overturned in 2006.
- Kyle Unger was convicted of killing a teenage girl at a music festival in 1990, based partly on hair samples found at the scene. DNA tests years later showed the hairs did not belong to him.
- Thomas Sophonow was found guilty of killing a waitress in Winnipeg in 1981 based largely on the testimony of a witness who contradicted in court what she had told police. The defence was not told about the contradiction at the time, and Sophonow spent four years in prison before he was freed.
With files from Sean Kavanagh, Austin Grabish and The Canadian Press