Tuesday, May 24, 2005
By Bill Moushey, Pittsburgh Post-Gazette
The president of the Lawrence County Bar Association has accused a county prosecutor of committing fraud to help convict a man of robbery in 2003.
Jonathan Solomon has filed a complaint with the Disciplinary Board of the state Supreme Court, contending that Assistant District Attorney Birgitta Tolvanen improperly cross-examined a key witness in the trial that resulted in Justin Kirkwood’s armed robbery conviction.
Kirkwood, who has appealed his conviction, remains imprisoned.
At the trial, Kirkwood’s lawyer presented several alibi witnesses, including Bill Fitts, owner of a local Ford dealership, who testified he spoke with Kirkwood on the phone at the same time the robbery was being committed on the other side of town.
During cross-examination, Tolvanen produced Fitts’ telephone records and asked him: “Would you be surprised, sir, that it shows … no record of a telephone call being made to the Kirkwood residence on that day?”
“I would be very surprised, because … I did make the phone call,” he responded.
Later examination of the phone records showed that not all local calls were recorded on the dealership’s statements and that Tolvanen knew that at the time.
She has contended that her actions were a permissible maneuver during the trial, but Solomon wrote in his complaint that “the testimony of the witness impeached by Ms. Tolvanen was crucial to the defense, in light of the weakness of [other] evidence connecting the defendant to the crime.
“The district attorney’s office has committed a fraud, not only upon the accused but also upon the court and upon the cause of justice. It is also an embarrassment to the legal profession.”
Kirkwood was convicted of stealing $170 from the Family Craft Center in New Castle. The women working in the store testified he was the robber, even though he has blue eyes and one of the witnesses said the robber had brown eyes, and even though Kirkwood’s arms and legs have several tattoos, but the witnesses never mentioned any markings when identifying the robber, who wore shorts and a short-sleeved shirt.
In an appeal hearing before state Superior Court earlier this year, Tolvanen admitted trying to deceive the jury about the phone records. But later, at a post-trial hearing, she said her actions were legal and ethical.
Solomon also asked the disciplinary board to investigate the Lawrence County district attorney’s office for failing to disclose that the New Castle police officer who showed the suspect’s photo to the victims was under suspension for misconduct at the time he testified at trial.
He also asked the disciplinary board and Lawrence County District Attorney Matthew Mangino to investigate allegations that a man who bore a resemblance to Kirkwood and committed other robberies near the craft store before he killed himself in the Lawrence County Jail may have confessed to the crime for which Kirkwood is serving time.
Neither Tolvanen nor an official from the disciplinary board could be reached for comment. Mangino said it wouldn’t be appropriate for him to comment.
If it finds a lawyer guilty of misconduct, the board can levy penalties ranging from a verbal reprimand to disbarment.