Another wrongful conviction surfaces in Manitoba

Last week CBC news reported there was a strong likelihood that a wrongful conviction has surfaced in Manitoba.
If true, it is another in a string of wrongful convictions in a province which sent Thomas Sophonow to prison for a murder he didn’t commit in the 1980s and then James Driskell in the 1990s.
Stanley Ostrowski has submitted a bail application pending review of his trial for murder, a crime he has spent 23 years in jail for, a crime he says he didn’t commit.
He was convicted of firstdegree murder for the execution of Robert Nieman, a police informant, in 1987. Three other men were also charged in the slaying.
Ostrowski has always said he didn’t commit the crime, and now his lawyers, James Lockyer and Alan Libman of the Association in Defence of the Wrongfully Convicted, have filed a petition for his release on bail while they await a review by the justice minister.
The federal Justice Department and its conviction review group tasked a Halifax lawyer with reviewing the case. It is reported he says there’s a reasonable basis to believe a wrongful incarceration occurred.
It is not known on what basis he came to that conclusion, but in similar cases, new evidence has turned up since the original conviction which would support the innocence of the accused. Such new evidence could include witness recantation, evidence of police coercion, legal error or DNA evidence.
The minister of justice is pretty much the last hope for the wrongfully convicted, and he or she must be satisfied there is a reasonable basis to conclude that a miscarriage of justice has occurred. In the past this has resulted in either a new trial or a referral to the Court of Appeal.
In Nova Scotia, the Marshall case resulted in an Appeal Court hearing in 1982, while in Saskatchewan, the Milgaard case resulted in a Supreme Court hearing. Both cases involved failures in the administration of justice, although officials involved in those cases were exonerated of any wrongdoing.
What is characteristic of most wrongful convictions is that they are based on factors such as eyewitness misidentification, legal error or police tunnel vision. In the Morin case, for example, police quickly focused on a young man and pursued his guilt single-mindedly.
However, what is interesting in this case is that attention is not being pointed at the usual suspects — the police, witnesses or a judge. In this case questions are being raised about the prosecutor. Prosecutors have been found to be responsible in many U.S. cases of wrongful conviction.
Ostrowski’s case was prosecuted by George Dangerfield, a high-ranking Crown attorney in charge of trying both James Driskell and Thomas Sophonow.
Suspicion was raised about Dangerfield in 2006 during the public inquiry into Driskell’s wrongful conviction, in part because of the large volume of cases he conducted in the 1980s and the 1990s and the fact that no other Crown prosecutor has been responsible for prosecuting two wrongful convictions.
In response to criticisms, Manitoba has retained a retired Ontario judge to review some of Dangerfield’s cases.
The key issue seems to be whether evidence was disclosed by the prosecution which could have worked to the advantage of the defense.
Given that the test in a criminal court is “beyond a reasonable doubt,” evidence that might sway a jury to acquit the accused is highly important.
Given the large number of cases prosecutors handle and the fact that there is a lot of pressure to win, and a work culture which rewards individual success, there are situational inducements to deviate. The nature of the trust relationship puts prosecutors in a special position with both responsibility and yet the power to abuse.
There is no evidence yet of wrongdoing, but it is instructive that the focus of the judicial review is going to be disclosure. At the time of Ostrowski’s trial, there was no legal requirement to disclose evidence which might have helped his defense.
No legal requirement perhaps, but there certainly was a moral one.

This article originally appeared in the Daily Gleaner, Sept 24, 2009. http://dailygleaner.canadaeast.com/opinion/article/801901