Milwaukee Journal-Sentinel

Minister's conviction overturned
Tape in solicitation case was altered, appeals court finds
Posted: Oct. 2, 2007

The state Court of Appeals on Tuesday overturned a 2001 solicitation for prostitution conviction that sent a Lutheran minister to jail after finding that key evidence - a taped conversation - had been altered by the alleged victims, male Panamanian students who wanted to stay in the United States.

The ruling was another victory for the Wisconsin Innocence Project, a University of Wisconsin Law School program that had taken the case. The project has had success in freeing others wrongly convicted of crimes.

The 3rd District Court of Appeals, after hearing arguments that evidence in the minister's case had been faked, reversed the lower court's decision without considering several other issues raised by the minister's lawyers. The case was sent back to the lower court for a new trial.

"We exercise our discretionary power of reversal in the interest of justice," the court ruled.

Eau Claire County District Attorney Rich White said Tuesday he is hopeful that the state attorney general's office will appeal the decision to the state Supreme Court. If the case is not taken to the high court or if the high court agrees with Tuesday's decision, White said, he would consider retrying the case.

"My confidence in the outcome of the jury trial is not changed by this court of appeals' decision," White said. "I vigorously maintain that the defendant got a fair trial."

The minister, Richard L. Kittilstad, had been sentenced to 10 years in prison in 2001.

John Dipko, a spokesman for the state Department of Corrections, said Kittilstad will be eligible for release in May after serving two-thirds of his sentence. He said Kittilstad waived consideration for parole in 2005.

Kittilstad, 60, is a prisoner at Stanley Correctional Institution and was unaware of the decision Tuesday morning, said his lawyer, Keith Findley, the law school professor who supervised the Wisconsin Innocence Project's work on the case.

"It will be 30 days before the decision is final," Findley said. "That allows the state time to petition the Supreme Court for review. I don't know how long he will remain in jail."

Kittilstad was the pastor of St. Paul's Lutheran Church in Augusta and St. Luke's in Foster, both communities in Eau Claire County. One congregation stood by Kittilstad; the other fired him, according to a church spokesman. The alleged solicitations occurred in 1996 and 1997.

Kittilstad brought four or five Panamanians to the Eau Claire area to attend Chippewa Valley Technical College, Findley said. He would pay tuition for the young men and provide room and board. In exchange, they had to follow his house rules and work on his farm, Findley said.

"In part his motivation was service to people and in part to get workers for his farm," Findley said.

A jury convicted Kittilstad of four counts of soliciting prostitution. The Panamanians contended that the minister offered them money in exchange for them having sex with women while he watched through a ceiling vent. Their testimony was supported by an audiotape recording of a conversation between one student, Francisco Sanjur, and Kittilstad in which the minister discusses money and sexual matters.

White, the district attorney, argued at trial that the arrangement left the students afraid they would be forced to comply with Kittilstad or return to Panama.

Before the trial, Kittilstad's lawyer appealed a narrow issue - whether the accusation amounted to solicitation - and the Supreme Court issued a decision siding with prosecutors.

Recently, two sets of experts - one for the state and one for the defense - examined the audiotape, and the experts agreed that the tape had been edited mid-conversation and could not have been the result of one continuous, unedited recording, according to the Appeals Court decision. The two different audio experts were able to see mechanical signs on the tape that five different tape recorders were used, and it had been dubbed, erased and spliced, Findley said.

The prosecution had explained the poor quality of the tape by saying the recorder was under Sanjur's coat, Findley said.

Students from the Innocence Project tracked down a fifth student, Gabriel Morales, who lived on the farm with the other four. Morales testified that the other four had asked him to participate in a conspiracy to fabricate allegations of maltreatment as a ploy to obtain hardship visas that would allow them to remain in the U.S. They waited until after Morales left the country before they came forward with their allegations.

"That is, in fact, exactly what happened," Findley said. "They are still here, working in the Eau Claire area."

White, the prosecutor, said the evidence of the tape recording having been altered and the testimony of Morales had been presented to the trial judge, Benjamin Proctor, who ruled that it was not sufficient cause for a new trial.

The appeals court disagreed.

John Brooks, a spokesman for the Evangelical Lutheran Church in America, said Kittilstad is no longer on the roster of ministers. If he wants to serve in a pastoral capacity, he would have to petition his bishop and perhaps the conference of bishops.

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