Sunday 19 September 2010

Bad Prosecutors (part I)

The role of a prosecutor in a trial is not to convict the accused at all costs but to determine the truth as to what really occurred with respect to the crime the accused is believed to have committed. If he really believes that the accused in actual fact committed the crime and in conducting the prosecution of the accused, the prosecutor has acted honestly and with due diligence, then he has done his job properly if he brings about a conviction.

Unfortunately, there have been many instances in which the prosecutors have been either careless and negligent in their work, or worse yet, outright dishonest with respect to the prosecution of the accused. Let me give a minor case in point in which I was personally involved.

Many years ago, I was serving a court document on a woman who was being sued for over a million dollars. Her husband who was a retired boxer and was present when I served her the document, insisted that I take the document back. I refused and while I was in the foyer of the apartment building, he grabbed me from behind and tried to drag me back to his apartment. I managed to turn around and punched him in the face and knocked him down and as such, I was later able to leave the building.

A month later, a police detective called me and asked me to meet him. He arrested me for allegedly striking the man I knocked down with a 14-inch flashlight which he found in my car. I told him I didn’t have the flashlight with me when I was in the building. He told me to tell it to the judge.

At my trial, the assistant crown attorney (prosecutor) approached my lawyer and told him that she would withdraw the charge of assault with a weapon if I pleaded guilty to the lessor charge of common assault. I refused and the matter then went to trial. The flashlight was on his table he was sitting at and the man I knocked down and his wife and adult daughter when giving evidence, were asked if they had ever seen that flashlight before. They all said that they didn’t see it before the day of the trial. In fact the man said that all he saw when I struck him was my fist hitting him in the face and his family said the same thing. The charge was dismissed and then the judge chastised the man for trying to drag me back to his apartment.

Now before a prosecutor proceeds with a trial, he discusses the evidence with the victim and the witnesses. In my case, she would have asked them if they saw that flashlight in my hand when I struck the so-called victim. They would have told the prosecutor that they didn’t see the flashlight in my hand and that they saw me hit the man only with my fist.

So why did the prosecutor go ahead with the charge of assault with a weapon rather than common assault? The answer is quite obvious. She wasn’t interested in searching for the truth. She wanted a conviction at my expense even though she knew that I was innocent. That is the actions of a dishonest prosecutor which is a plague on justice.

Now I will tell you of another Canadian prosecutor whose actions as a prosecutor brought misery to some of those he prosecuted because they were really innocent and they had, (for want of a better phrase) been railroaded into prison by this prosecutor. The prosecutor’s name was 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 years of age. 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 who was 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. They wouldn’t talk to him. 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 his sister made the hour-long round trip to Stony Mountain Penitentiary to visit their dad.

In October 2009, after 23 years behind bars, his father—who always vigorously maintained his innocence—applied for bail pending an inquiry into his conviction because a federal investigation had determined there was a reasonable basis to conclude that a miscarriage of justice had likely occurred at his trial.

Grave allegations had come to light that the police and George Dangerfield, had both concealed the fact that a witness who perjured himself at Ostrowski’s trial had been given a deal in return for his testimony. The case was reopened, and a scathing brief filed by Toronto lawyer, James Lockyer further alleged that tainted evidence by the witness was used to convict his client.

In 1986, Ostrowski—who turned to selling drugs 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 included a damning police report, not disclosed to the defence, that directly contradicted crucial Crown evidence, and a new witness who not only contradicted Crown testimony but named a new, more plausible suspect in Nieman’s slaying.

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 winnipeg, and played a bit part in the film Capote. He was a courthouse favourite, deeply admired by police, the judiciary and yes, even the defence. That’s because his antics were for the most part, unknown by most people at that time when he was acting as a prosecutor.

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.

Convicted of the 1981 murder of waitress Barbara Stoppel, Sophonow was exonerated in 2000 and compensated following a judicial inquiry into his case in 2001. Evidence at the inquiry showed that George Dangerfield and other Crown attorneys failed to disclose evidence that would have attacked the credibility of Crown witnesses.

Detectives focused on Sophonow instead of another man, Terry Arnold, who was known to have hung around the murder scene and who had a crush on Stoppel. He has since committed suicide.Sophonow was awarded $2.6 million in compensation for being wrongfully convicted.

George Dangerfield who prosecuted James Driskell in 1991 for murder expressed remorse August 16, 2006 about Driskell's 12 years in jail. He was testifying at the the Winnipeg inquiry into Driskell's wrongful conviction for the 1990 murder of Perry Dean Harder. Dangerfield admitted to knowing a key Crown witness had lied several times on the stand while testifying against Driskell.

When James Lockyer, who was representing Driskell at the inquiry, asked Dangerfield if he had anything to say to Driskell about the time he spent in prison, Dangerfield expressed remorse."I haven't spent my entire life mulling over this case." Dangerfield told the inquiry. "Yes, I'm sorry he put all that time in prison. But I didn't intentionally try to get him into prison, I didn't intentionally do things to damage his chance to acquit himself."

Dangerfield further tempered his apology by saying Driskell may have been acquitted if he had testified at his own trial. He also said, (get ready for this) "And I honestly think today as I sit here remembering him as he was 15 years ago: a good looking young man … good appearance, good way with him … that had he gone in the box he might very well have been acquitted. Driskell wasn’t obligated to give testimony in his trial. Driskell had no way of knowing that Dangerfield was not conducting his trial honestly.

Kyle Unger was prosecuted by Dangerfield in the 1990s for the satanic-like murder of teenager Brigitte Grenier. The show was critical in part because some physical evidence has been discredited since trial and claims that the undercover RCMP sting unfairly induced a confession from Unger, a confession that wasn’t truthful to begin with. It's too bad Dangerfield didn't speak to key Mounties. He might have learned about the strict laws that govern sting-confessions and of the RCMP being ready and willing to take the case back to the courtroom.

These innocent men had joined a growing list of wrongful convictions tied to George Dangerfield, the prosecutor who prosecuted them and who was once the most storied Crown attorney in Manitoba. If all of the convictions Dangerfield brought about are 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, would be the Crown with the most quashed murder convictions to his name. A pattern linked these cases. They were: failure to disclose exculpatory evidence, secret deals to drop charges in return for testimony, and reliance on bad witnesses.

But while Dangerfield might have been in murky ethical territory, when it came to non-disclosure he likely didn’t break the law at that time because three of the four cases took place before a 1991 Supreme Court ruling established that all relevant evidence in the hands of the Crown was to 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.

Manitoba's NDP government has not exonerated Driskell and it has refused to pay Unger one red cent. As for Ostrowski, he's just passed the application stage and technically may have to return to prison. I think that's unlikely.

Was there a case where Dangerfield deliberately tried to convict someone he believed to be innocent? I ask that rhetorical question because of the fact that a number of innocent people were needlessly convicted when he prosecuted them. “Was George Dangerfield a bad prosecutor? Yes. Did he cause incredible damage to innocent accused persons and their families? Absolutely.

Bad prosecutors are just as dangerous as the criminals they prosecute. Not only should they be removed as prosecutors, they should be prohibited from even practicing law as lawyers. Society has a right to be protected from these kinds of people. Even criminals are entitled to that protection no matter how bad they may be. Justice cannot be so blind that innocent people should suffer. Think about this for a moment. If Canada had capital punishment still in force and these men were hanged for crimes they didn’t commit, would George Dangerfield be any better a person than those who were hanged many years ago? I think not.

When I think of bad prosecutors, my mind wanders to the beautiful statutes where there is a blindfold over the eyes of the face of justice. My interpretation of the blindfold covering the eyes is that because prosecutors like Dangerfield and his ilk had poked out the eyes of justice, they don’t want us to see what they did to the face of justice, hence the blindfold.

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