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Justin Kirkwood was convicted of robbing a craft store in New Castle of $130.  Two clerks identified him as the robber despite discrepancies between Kirkwood and the initial descriptions the clerks gave of the robber.  At trial, Kirkwood had seven alibi witnesses, including one, Bill Fitts, the owner of the largest car dealership in New Castle.  Fitts said he called the Kirkwood household at 7 p.m., which was the time of the robbery.  He called to inform the Kirkwoods that he had arranged for them the use of a Lincoln Town Car for an upcoming wedding.  Fitts said Justin Kirkwood answered the phone when he called.  Fitts knew Justin, because he employed Justin's father.  He also knew it was 7 p.m. because as soon as he hung up, he watched the lottery picks on television.

On cross-examination, the prosecutor, DA Birgitta Tolvanen, displayed a copy of Fitts' phone records and brought out the fact that there was no listing of the phone call on them.  Fitts had no explanation for the apparent discrepancy.  The defense attorney complained that the records were not made available in pretrial discovery, but did not ask for a mistrial or otherwise object.  The DA did not introduce the records into evidence.  On closing, the DA referred to the records as undermining Fitts' credibility.  Thinking the alibi witnesses were probable liars, the jury convicted Kirkwood of armed robbery and he was sentenced to 3 1/2 to 7 years in jail.

Following the conviction, a copy of the phone records was obtained along with evidence that another suspect committed the crime.  Fitts' phone call to the Kirkwood residence was not listed, because it was a local call and no local calls were listed in the records as they were free.  During appeals, the DA admitted she tricked Fitts with the phone records and knew they did not contain local calls and that she had misled the jury.  Kirkwood's conviction was then overturned.  Charges against Kirkwood were dismissed in 2006.  (JD29 p7) (FJDB)  [2/07]

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