Wrong man, yet again? - Macleans.ca

Wrong man, yet again?

The list of alleged wrongful convictions tied to attorney grows

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Frank Ostrowski Sr. and George Dangerfield

Frank Ostrowski Sr. and George Dangerfield

Frank Ostrowski Jr. will never forget the night he awoke to find a 12-gauge shotgun pointed at his face. He was 12. Minutes earlier, he and his eight-year-old sister Amber had been asleep in their home in Winnipeg’s middle-class North Kildonan neighbourhood. The man holding the gun was a cop, there to arrest his dad, Frank Sr., for the first-degree murder of Robert Nieman. For Frank Jr.—now a trucker living in Calgary with his wife and two kids—life as he knew it ended then. Within a day, “95 per cent” of his friends were gone. His grades plummeted. Alone, his mom could never make ends meet, and for the rest of his childhood, two to three times a week, he and Amber made the hour-long round trip to Stony Mountain Penitentiary to visit their dad.

Last month, after 23 years behind bars, his father—who always vigorously maintained his innocence—applied for bail. A federal investigation has determined there is a “reasonable basis” to conclude a miscarriage of justice “likely occurred.” Grave allegations have come to light that police and prosecutors concealed the fact that a witness who perjured himself at Ostrowski’s trial was given a deal in return for his testimony. The case has been reopened, and a scathing brief filed by Toronto lawyer James Lockyer further alleges that tainted evidence was used to convict his client.

Ostrowski, it seems, may join a growing list of wrongful convictions tied to George Dangerfield, the prosecutor in question and once the most storied Crown attorney in Manitoba. If his conviction is overturned, some in Winnipeg’s tightly knit legal community believe the city could become Canada’s wrongful conviction capital and Dangerfield, now retired and living in Vancouver, the Crown with the most quashed murder convictions to his name.

Dangerfield was a tall, distinguished prosecutor with piercing blue eyes, a quick wit and a “great, believable presence,” says criminal lawyer Hersh Wolch. He was also a Renaissance man: he took painting lessons at the Winnipeg Art Gallery, had done legal training in Britain, at the time a rarity in the Peg, and played a bit part in the film Capote. He was a courthouse favourite, deeply admired by police, the judiciary, even the defence.

But recently, two men Dangerfield helped convict of murder—Thomas Sophonow and James Driskell—have had their convictions overturned (costing taxpayers $6.6 million in compensation). A third, Kyle Unger, is on his way to establishing that he, too, was wrongly convicted. And now, Ostrowski. The sheer number is without legal precedent, says David Deutscher, who teaches criminal law at the University of Manitoba. If the 60-year-old Ostrowski is found to have been wrongly convicted, he could be the priciest mistake to date: he’s been in jail as long as David Milgaard, who was awarded $10 million.

In 1986, Ostrowski—who turned to selling drugs, he says, to support his family after his clutch of small businesses tanked—was charged with having ordered the murder of Nieman, a police informant. In his trial, the Crown hung its case on Matthew Lovelace, a 26-year-old cocaine mule who repeatedly told the jury he had sought nothing in return for testimony, and simply wanted to “stop any further criminal activity from happening.”

Lockyer calls this a bald-faced lie, citing a 1986 federal Crown memo that outlined how Lovelace’s trafficking charges would be stayed if he “comes thru with the goodies.” Lovelace’s wife, recently interviewed by a private investigator hired by Ostrowski’s counsel, said he knew his criminal charges would be dropped thanks to his co-operation with police, which he’d dubbed “my ticket out.” Indeed they were, a month after Ostrowski’s appeal was heard. Other new evidence includes a damning police report, not disclosed to the defence, that directly contradicted crucial Crown evidence, and a new witness who not only contradicts Crown testimony but names a new, more plausible suspect in Nieman’s slaying.

A pattern links the four cases, says Deutscher: failure to disclose exculpatory evidence, secret deals to drop charges in return for testimony, and reliance on unsavoury witnesses. But while Dangerfield may be in murky ethical territory, when it comes to non-disclosure he likely didn’t break the law, says Deutscher. Three of the four cases happened before a 1991 Supreme Court ruling established that all relevant evidence in the hands of the Crown must be disclosed to the accused. Lockyer, though, is further alleging the Crown (legally bound not to put witnesses on the stand if it knows they aren’t telling the truth) knowingly allowed a key witness to lie under oath “with impunity”—an episode, he adds, “unworthy of our criminal justice system.”

Manitoba has now opened external reviews in all of Dangerfield’s cases where a claim of “prosecutorial misconduct” is made, says assistant deputy attorney general Don Slough. Indeed, the Justice Department’s steadfast defence of Dangerfield appears, finally, to be cracking. “It’s hard to balance these findings with the person you knew,” says Slough, who worked with Dangerfield for 20 years, his voice thick with emotion.

“Never” was there a case where Dangerfield “deliberately tried to convict someone he believed to be innocent,” says Wolch. And yet a number of innocent people were convicted. “Is George a bad guy? No. Did he cause tremendous damage? Yes.”