Winnipeg Free Press - PRINT EDITION

How many more wrongly convicted?

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Frank Ostrowski, convicted 23 years ago of murder, was all smiles as he left a Winnipeg court Friday, free on bail pending a federal review for wrongful conviction. He's going home for Christmas, after almost a quarter-century behind bars. The development, though, should leave Manitobans with a sense of discomfort.

That is because it is the fourth time a murder conviction in this province has withered under scrutiny. Three other men walked away free after their cases were found to be miscarriages of justice; all, and Mr. Ostrowski's, were handled by the same chief prosecutor, George Dangerfield.

Kyle Unger's conviction was overturned because recent DNA testing determined a hair strand at the scene was, in fact, not his. But in the cases of Thomas Sophonow and James Driskell, the prosecution deliberately withheld key facts from the jury and the defence. The failure to disclose meant they could not fully challenge the prosecution's evidence. Rules of disclosure today are strict, demanding full release of facts that would or may be relevant to the case.

There has been much said about the conduct of former prosecutor George Dangerfield, as well as others who played a role in the cases that did not stand up to review. In Frank Ostrowski's case, Manitobans have learned that deliberately obscuring facts was considered, through the 1980s, fair game in the adversarial process. Hymie Weinstein, the lawyer for key witness Matthew Lovelace, revealed that he had made a deal with the federal Crown's office to stay a cocaine trafficking charge against Lovelace in exchange for his testimony that Mr. Ostrowski ordered the hit on Robert Nieman.

He insisted, however, he never mentioned the deal to Lovelace. Mr. Weinstein believed the wall of secrecy he erected would shield the case from accusations the testimony was corrupted.

The judge who released Mr. Ostrowski saw through that fallacy: the fact is such information would have been useful to the defence and the jury. It begs the further question, how could a lawyer take control of a client's case and decide that he need not inform him about such a deal?

It was not the only evidence that was withheld from Mr. Ostrowski -- Mr. Lovelace's tip to police warned them Mr. Ostrowski had a contract out to kill a man, only it was not Mr. Nieman he named.

Both the judge and the provincial Crown's office, which opposed the bail application, were quick to stress Friday that the evidence in its entirety has not been discredited. Winnipeggers, though, have seen again that prosecutors and police habitually used selective facts and insidious backroom deals to prop up a case against an accused.

Mr. Ostrowski's freedom may be short-lived, subject to a federal review of his case. But details of the case contribute to uneasy truths that weaken the integrity and validity of prosecutions in the years before science and hard rules of disclosure applied a higher standard of conduct to Crown attorneys, who are expected to see that justice is done, rather than to ensure a suspect is convicted.

Murder cases get reviewed because of the onerous consequences of conviction, but it must be asked: How many others sent to jail decades ago could today prove they should never have been convicted?

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien, Shannon Sampert, and Paul Samyn.

Republished from the Winnipeg Free Press print edition December 21, 2009 A12

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