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December 5, 2006

Family celebrates dropped charges

By NCNews Staff

Justin Kirkwood's family talks about the ordeal they endured when he was convicted of a robbery they say he did not commit.





BY DEBBIE WACHTER MORRIS DMORRIS@NCNEWSONLINE.COM





Justin Kirkwood embraced his mother, father and kid sister Thursday afternoon, his eyes brimming with tears. His family blames a former assistant district attorney for what they believe was a wrongful conviction on robbery-related charges against him. It was a day of raw emotions for all of the Kirkwoods after Judge Dominick Motto dismissed the case against the 26-year-old Shenango Township man. He had spent 23 month in a state prison for a crime he claims he did not commit. His family maintains he had viable alibis for the night of Aug. 14, 2002, when the Family Craft Center on Wilmington Road was robbed of $170 at knifepoint. Despite a guilty verdict by a jury, his family insisted he could not have been the man who had held up the store. "It's finally out, and it's the truth," his mother, Debbie, said Thursday after a court hearing. "He really didn't do it. He was at home with me." Helplessness was how she described the feeling of a mother at home with her child who couldn't protect, but "we stood behind him." Kirkwood was told in prison that if he didn't admit to the crime, he would spend all seven years of his sentence incarcerated, his mother said. He was prepared to do that time, she continued, because he had nothing to confess. "We wouldn't plea bargain because we had the truth to tell," she said. Kirkwood was arrested by New Castle police after store employees picked his pictures out of an album containing a lineup. However, a family friend, businessman William Fitts, testified he had called the home the night of the robbery, and Kirkwood had answered. Former assistant district attorney Birgitta Tolvanen's questioning led the jury to believe there was no phone record to back up his statement, when in fact, there were no local calls on the phone records. In August 2005, Motto vacated Kirkwood's conviction and revoked his prison sentence, granting a new trial based the phone record issue. That issue came back to haunt the prosecution Thursday when Motto concluded that Tolvanen had misled the jury about the phone records. That resulted in the case being dismissed, on a motion by District Attorney John Bongivengo. When Bongivengo took office in January, he fired Tolvanen. Two weeks ago, he filed a motion to have the case dropped, claiming she had committed prosecutorial misconduct. Kirkwood's father is bitter about his son's trial process, which he described as nerve-shattering. He said the family spent close to $65,000 -- most of their life savings -- in fighting the case. He is grateful to Bongivengo for righting what he saw as a wrong in the criminal justice system. "Thank God also for (attorney) Jonathan Solomon, who saw the wrong and tried to correct it," David Kirkwood said. In May 2005, Solomon filed a complaint with the state Supreme Court contending Tolvanen had committed fraud. The outcome, according to Solomon, is confidential. Kirkwood said he is grateful to assistant public defender Ken Kasenter, who appealed his son's conviction to the Superior Court. Since his release from state prison, Kirkwood has been working at Ferguson Perforating in Shenango Township. With cameras and lights focused on him after the judge's ruling, Kirkwood was overcome with emotion and had few words. "I didn't do it," he said. "I was at my house." He swore he has never set foot in the Family Craft Center in his life. "I'm sorry they got robbed," he added, "but I didn't do it."

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