In August 2002, a craft store in New Castle, Pennsylvania was robbed at gunpoint. The two clerks in the store at the time provided police with an initial description of the robber. A few days after the crime, the clerks identified Justin Kirkwood as the robber from a mug book, even though Kirkwood was taller than the man they described, his eyes were a different color, and he was heavily tattooed, something the clerks had not mentioned in their description. Kirkwood said he was home with his family at the time of the crime, and had been on the phone with someone from the local car dealership. The car dealer testified that he had called Kirkwood at that time, but during his cross-examination, the prosecutor waived telephone records around and asked him why the call wasn’t in the records. In July 2003, a jury convicted Kirkwood of armed robbery, and he was sentenced to 3.5-to-7 years in prison.
In 2005, the Innocence Institute at Park Point University took Kirkwood’s case, and determined that the phone call from the dealership would have been a local call, and thus would not have been in the phone records. The Institute petitioned for a retrial, and the prosecutor admitted that she knew that local calls would not have been in the phone record, and said she was just trying to trick the witness. In August 2005, a Pennsylvania Superior Court judge vacated Kirkwood’s conviction on the basis of the prosecutorial misconduct, and Kirkwood was released. The prosecution dismissed the charges in December 2006.
- Stephanie Denzel