• BREAKING NEWS Shelter in place lifted after prisoner captured

Wrongly convicted man ordered released

May 24, 2011 3:10:34 PM PDT
A man in prison for 5 years and facing many more because of a DA blunder is now one-step closer to getting out.

An appellate judge ordered the man released.

The appellate judge said he has never heard of a case like this, someone convicted and sent to prison on criminal charges that were dismissed months before the trial, and yet prosecutors still presented those charges to a jury.

The judge agreed that you just can't keep someone in prison on charges that don't legally exist.

"I feel like I'm getting a second chance, like I've won the lottery," said Oswind David.

Oswind David was hoping he'd get out of prison soon when we spoke with him in Sing Sing prison last week, and Tuesday he got his winning ticket to freedom.

An Appellate Judge in Brooklyn ordered David released on bail.

Eyewitness News uncovered documentation that first degree assault charges against David had actually been dismissed six months before his jury trial in 2006.

And yet, the Brooklyn DA's office still presented those charges to a jury, David was convicted and sentenced to a total of 23 years.

Lawyers for the Brooklyn DA's office tried today to keep David behind bars, arguing he is still technically guilty of the lesser charge of second degree assault, no matter the jury was specifically instructed not to consider that charge if they convicted on first degree assault.

David's brother, a Marine just back from two overseas tours, is helping post the $75,000 bond saying this is a legal fight the family is ready for.

"If they DA wants to fight, let's fight," said Osbert David, Oswind's brother.

"The bottom line is I am being unlawfully detained, that's the bottom line," Oswind David said.

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