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A fair trial or backroom justice?

Saturday, October 28

  • By: Kelly Patrick
  • Organization: National Post
 
Inquiry into one Manitoba murder uncovers questions about another

The police misinterpreted his statements, he insists. His lawyer screwed him over. A key witness double-crossed him, framing him for a drug-related hit he maintains he did not order.

"Did I get a fair trial? The answer is no," the 56-year-old convicted killer says in an interview at the minimum-security Rockwood Institution north of Winnipeg.

In Ostrowski's 20 years in prison, the portly, thick-haired inmate has replayed the facts of his case in his head like a worn record whose every groove still obsesses him.

But unlike some other lifers, it looks as though Ostrowski may have reason to be obsessed with his innocence.

At an ongoing public inquiry into another dubious Manitoba murder conviction, that of James Driskell, evidence has emerged that Ostrowski may indeed have been railroaded.

Memos presented to the Driskell inquiry suggest the chief witness against Ostrowski at the "Rat Trial" of 1987 -- a cocaine mule whose testimony formed the hook on which the Crown hung its case -- received a deal for taking the stand, something he denied under cross-examination.

In other words, an inquiry into one possible miscarriage of justice may have uncovered another.

"I think it's fair to say on the basis of what we already know that Mr. Ostrowski is the victim of a miscarriage of justice. I'll take it that far," says James Lockyer, a well-known advocate for the wrongfully convicted and counsel to both Driskell and Ostrowski.

He introduced the Ostrowski memos to push the Driskell inquiry to consider a bigger issue: Namely, did police, a Winnipeg prosecutor and his superiors at Manitoba Justice make a habit of concocting secret deals with unsavoury witnesses? And if that is the case, are there others languishing in Canada's penitentiaries who deserve to have their cases re-examined?

Closing arguments in the Driskell inquiry begin Monday and, in his final submission, Mr. Lockyer is expected to repeat a request that the inquiry's commissioner order a review of cases led by the prosecutor in the Driskell case, George Dangerfield.

Mr. Dangerfield already has one official wrongful conviction on his resume -- he was the Crown in two of Thomas Sophonow's three trials before DNA tests proved Mr. Sophonow did not kill 16-year-old Barbara Stoppel -- and he prosecuted four other disputed Manitoba murder cases, including Mr. Driskell's and Ostrowski's.

The Driskell and Ostrowski cases are not directly related. But there are similarities.

Driskell was convicted of first-degree murder in the 1990 death of his friend Perry Dean Harder.

The case was built largely on hair evidence that later proved faulty and on the testimony of a witness named Reath (Ray) Zanidean who, like the key witness in the Ostrowski case, received an undisclosed deal for taking the stand.

If the Driskell inquiry's commissioner recommends a review of Mr. Dangerfield's cases, Ostrowski could finally see his case reopened.

Frank Ostrowski says his troubles began with skyrocketing interest rates.

In the early 1980s he was a fledgling Winnipeg businessman with his fingers in plenty of pies. He owned a barbershop, a men's fine clothing store, an amateur photography business and a company that manufactured tub and bathroom fixtures.

The weight of the era's heavy interest rates crushed his small-business empire, Ostrowski says.

The married father of two young children turned to selling cocaine.

"I wanted to use that as a way to acquire money to get back into business but it didn't work out that way," he says. "I ended up getting busted and I lost everything."

On Sept. 14, 1986, Ostrowski was arrested at his Winnipeg home.

His daughter Amber, now a 30-year-old mother, can still recall the night. She was eight.

"I remember every minute, it's, like, stuck in my brain," she says. "Me and the neighbour girl were having a sleepover and we were in my room, which is next to my parents' room and I heard a whole bunch of commotion and my Dad yelling, 'stay in your room.' "

Winnipeg police seized 308 grams of cocaine and $50,000 in cash from an elaborate floor safe that Ostrowski says only one other person knew about -- a dealer named Matthew Lovelace.

Lovelace, it turned out, had been nabbed a day earlier with 85 grams of cocaine and had told police about Ostrowski's secret stash.

Ten days after Ostrowski was arrested, near midnight on Sept. 24, a 22-year-old police informant named Robert Nieman was shot three times in the face.

He died of his injuries nearly a month later.

Four men were originally charged with Mr. Nieman's slaying: Robert Dunkley, convicted for pulling the trigger, Jose Luis Correia, convicted for helping Dunkley, Jim Luzny, who, although accused of giving the gun to Dunkley was acquitted when Dunkley refused to testify against him, and Ostrowski.

He was convicted of first-degree murder for ordering the execution.

The Crown's case against Ostrowski rested on the theory that Ostrowski believed it was Mr. Nieman, not Lovelace, who had told police about the floor safe.

Since Ostrowski was not accused of being at the murder scene, there was no physical evidence that could tie him to the crime or exonerate him of it.

Instead, Crown attorney Mr. Dangerfield was forced to rely largely on the testimony of Lovelace himself, who took the stand to accuse Ostrowski of plotting Mr. Nieman's murder.

"[Ostrowski] said to me, 'You don't have to worry about Nieman. He's taken care of,' " Lovelace testified March 13, 1987. "He said, 'I have given that gun to Jim and his friends are going to take care of him. He is dead meat.'"

"What did [Ostrowski] do then?" Mr. Dangerfield asked.

"At that time he put his hand to his head like this and made like he was shooting a gun," Lovelace replied.

When pressed at the Driskell Inquiry in August 2006, Mr. Dangerfield stressed that other witnesses helped incriminate Ostrowski.

But Lovelace was clearly crucial.

In fact, the judge who dissented in Ostrowski's favour at his 1988 appeal wrote that the "only direct" evidence against Ostrowski was Lovelace's word.

During his cross-examination of Lovelace, Mr. Ostrowski's lawyer, Greg Brodsky, asked the witness whether he was promised anything in return for his incriminating testimony, particularly if police or anyone else had offered to make his outstanding drug trafficking charge disappear.

"They promised me nothing," Lovelace testified.

If that is the case, it is hard to explain the bizarre way federal Crown attorneys eventually handled Lovelace's cocaine charge.

The trial took place Nov.16, 1988, a month-and-a-half after the Manitoba Court of Appeal rejected Ostrowski's appeal, and was led by federal Crown Pam Clarke.

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.

"That was the transcript, one page," Ostrowski says. "I was happy I could prove that he got a deal."

When the Association in Defence of the Wrongfully Convicted, the group that helped secure exonerations for David Milgaard and Guy-Paul Morin, adopted Ostrowski's case a few years ago, Mr. Lockyer wrote to the branch of the federal justice department that handles wrongful convictions seeking Lovelace's drug file.

At 9:20 a.m. on Aug.15, a month into the Driskell Inquiry, Mr. Lockyer received permission from the senior counsel for Ottawa's Criminal Conviction Review Group to present the Lovelace file.

The documents are explosive.

A typed note from Ms. Clarke, the federal Crown, to Lovelace's file, says that Hymie Weinstein, Mr. Lovelace's lawyer, is "definitely of the impression that he was given an undertaking that charges will be stayed against Mr. Lovelace once the Ostrowski appeal has been heard."

A handwritten note from the file dated Dec.12, 1986 reads: "Told Hymie, If Lovelace 'comes through with the goodies' we'll stay. Subject to confirmation with the provincial Crown. Hymie doesn't want anything in writing so as not to taint his client. PMK."

It is unclear who, exactly, PMK is, but lawyers at the Driskell inquiry believe it could be Peter Kremer, a retired federal Justice department lawyer whose name appears elsewhere in Lovelace's file.

It is also unclear if Mr. Dangerfield or Lovelace were aware of the arrangement.

Mr. Dangerfield testified at the inquiry that he had no knowledge of a deal.

But Mr. Lockyer does not buy it.

"Not for one second," he says. "Actually the assistant deputy minister at the time of Mr. Driskell's conviction put it best in his evidence at the inquiry ... He said this kind of conduct is clearly no more than a nod and a wink and that's exactly right. It means the jury is presented with an untrue picture of the motivations for the witness."

Citing solicitor-client privilege, Mr. Weinstein declined to be interviewed on the Lovelace file.

Ms. Clarke, now the director of the federal Justice department's Saskatoon office, and Marley Dash, a Winnipeg federal Crown whose name appears on several of the memos, also declined interview requests.

Besides the memos presented at the Driskell inquiry, there's another new wrinkle in Ostrowski's legal saga, courtesy of one of his co-accused.

Correia, the man convicted of helping Dunkley kill Mr. Nieman, filed a faint-hope application in May. In a letter attached to his application, dated March 14, 2005, he lays out his motive for murder.

Correia says an "individual" -- Mr. Nieman -- set Correia's drug supplier up with an undercover police officer, prompting the supplier's arrest.

"When my partner [Dunkley] approached me and asked me what I would do if there were a situation like that happening to me I replied 'I'd shoot and kill him.' So, in three weeks time from learning this info that is exactly what me and my partner carried out and acomplished (sic)."

A Portuguese immigrant with a thick black moustache, Correia remains coy about naming his supplier. But he says it was not Ostrowski.

"I met Frank through this whole ordeal, being in the remand centre," Correia says in an interview at Rockwood. "I did not know who Frank was. Had not even heard of him."

The pair know each other well now. Ostrowski has a picture of them in his room at Rockwood, a sparsely furnished one-bedroom suite resembling a college dorm.

Despite a comfortable prison life, Ostrowski says he is eager to rejoin the outside world with his two grown children and two grandchildren.

"It would be nice if the judge in the Driskell inquiry orders a new trial for me, gives me bail and let's me out for Christmas," he says.

kpatrick@nationalpost.com

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