Robbery charges to be withdrawn

Some Pittsburgh college students took the case on as a project.
By LAURE CIOFFI
VINDICATOR PENNSYLVANIA BUREAU
NEW CASTLE, Pa. -- It should be a very thankful Thanksgiving for Justin Kirkwood.
The 26-year-old New Castle man is expected in court next week to have armed robbery charges -- for which he spent two years in state prison -- withdrawn by the Lawrence County District Attorney's office.
District Attorney John Bongivengo filed a request earlier this month to have charges against Kirkwood withdrawn after reviewing the case.
"I think it's a clear case of prosecutorial misconduct, and I think double jeopardy applies," Bongivengo said Wednesday.
Kirkwood will appear Dec. 1 before Judge Dominick Motto of common pleas court to determine if the district attorney's request will be granted.
Kirkwood was arrested in 2002 after clerks at the Family Craft Center in New Castle's North Hill picked out his photograph and claimed he robbed the store at 7 p.m. Aug. 14, 2002.
A man with a large knife came in, threatened the clerks and took off with about 170.
But at Kirkwood's subsequent trial, seven family members and friends, including Bill Fitts, a local car dealer, testified Kirkwood was home at the time of the robbery. Fitts testified in court that he called the Kirkwood house just after viewing the Pennsylvania Lottery number results -- which airs on television each night at 7 p.m. -- and Kirkwood answered the telephone.
Prosecutor's misconduct
Assistant District Attorney Birgitta Tolvanen cast doubt on Fitts' story when she claimed telephone records did not show the call, but what she failed to explain to jurors is that local calls were not itemized on the telephone records she had.
Kirkwood was found guilty and sentenced to 31/2 to seven years in state prison.
His conviction subsequently was vacated by Judge Motto and Kirkwood was granted a new trial in August 2005 based on Tolvanen's actions. Kirkwood had already spent two years in state prison.
Judge Motto issued a 25-page opinion on the matter contending that Tolvanen created "a ruse designed to confuse" the witness.
"Although it is entirely proper to test the credibility of a witness, it is not proper to test the credibility of a witness by misrepresenting evidence," the judge wrote.
Tolvanen no longer works for the district attorney's office. Kirkwood has been out of prison on bail while awaiting his new trial.
National attention
Kirkwood's case garnered regional attention after the Pittsburgh Post-Gazette and students at Point State Park College in Pittsburgh took it on as part of their Innocence Institute, a group formed in 2001 to investigate cases of wrongful conviction in western Pennsylvania and nearby areas.
The institute investigates claims of wrongful convictions, raises awareness of the frailties associated with the criminal justice system, acts as a resource to those working to reverse injustice, and provides educational training in investigative reporting to college students and professionals, according to its Web site. It is one of 30 innocence projects in the United States.
Kirkwood, who has an unlisted telephone number, and his lawyer, Ken Kasenter of the county public defender's office, both could not be reached for comment.
Bongivengo said the victims were notified of his request to withdraw the charges, and they are not happy, but he believes withdrawing the charges is the best solution.
"There are rules, and prosecutors have to abide by them," he said.
cioffi@vindy.com