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Kirkpatrick wants murder conviction thrown out

David Samson / Forum News Service Gene Kirkpatrick, convicted of conspiring to have his dentist son-in-law killed for custody of his 3-year-old granddaughter, asked for a new trial on Thursday at the Cass County Courthouse in Fargo.

FARGO — An Oklahoma grandfather convicted of hiring his handyman to kill a Fargo dentist five years ago is asking a judge to throw out his conviction, claiming he got bad advice from an attorney he sold all his possessions to be able to afford.

Gene Kirkpatrick, 67, argued in Cass County District Court on Thursday that his attorney at his murder conspiracy trial in 2011 failed to provide him effective counsel by urging him not to testify.

Kirkpatrick said his attorney, Mack Martin, told him not to take the witness stand because at the time, the lawyer thought he was winning the case and being cross-examined by prosecutors would come with potential “pitfalls.”

Martin’s assessment of how the case was going was proved incorrect. A jury took just four hours to convict Kirkpatrick of conspiring with Michael Nakvinda in the murder of Philip Gattuso, who Nakvinda beat to death with a hammer in Gattuso’s south Fargo condominium.

Kirkpatrick told Fargo detectives he gave $3,000 to Nakvinda for “expenses” in the murder-for-hire, though he later argued that his statement was involuntary and he never hatched an agreement with Nakvinda.

Nakvinda and Kirkpatrick are both serving life sentences with no chance for parole — Nakvinda at a North Dakota prison and Kirkpatrick at a South Dakota prison.

Prosecutors say Kirkpatrick wanted Gattuso dead to get custody of Gattuso’s then 3-year-old daughter. Gattuso fathered the girl with Kirkpatrick’s daughter, Valerie, who died of a heart condition seven months before the murder.

Kirkpatrick was represented at Thursday’s post-conviction relief hearing by a court-appointed attorney. The retired telecommunications salesman said he had to sell everything he owned to pay Martin’s fees in the murder conspiracy case.

His public defender, Ryan Thompson, told the court the best defense technique for Kirkpatrick would have been to allow him to say to the jury, in his own words, why some incriminating things he’d said and done had been “twisted” by police investigators.

Kirkpatrick had testified in the earlier, separate trial for Nakvinda, agreeing to cooperate with prosecutors in that case.

On the stand in court Thursday, Kirkpatrick maintained, as he did throughout his and Nakvinda’s trials, that he had no formal agreement with Nakvinda to kill Gattuso.

“In my understanding a formal agreement would be — ha ha — when, like selling a house,” he said. “That clearly did not happen.”

Martin prepared him to testify on his own behalf up until two days before the trial ended, Kirkpatrick testified Thursday. Martin even promised in his opening statement in the trial that Kirkpatrick would take the stand.

Then, the lawyer changed his mind.

“Mack is an effective, trained attorney,” Kirkpatrick said Thursday, which was why he followed Martin’s advice.

Martin testified via phone that he had enjoyed a good working relationship with Kirkpatrick and had considered him a friend.

He had believed two days before the trial ended that they were winning the case, he testified, so he explained to Kirkpatrick there were potential problems that could arise with him on the stand, faced with cross-examination.

“It became my belief that if he testified it would be more damaging to us,” said Martin, “based on my obviously incorrect belief the trial was going better than it did.”

The family of Gattuso’s brother now has custody of the dentist’s daughter, after a custody fight in court with Kirkpatrick’s still-living daughter. The dentist’s brother also sued Kirkpatrick for wrongful death, winning a judgment of nearly $10 million.

Judge Steven Marquart took the civil lawsuit for post-conviction relief under advisement and will rule on the case at a later date.

The North Dakota Supreme Court in 2012 rejected Kirkpatrick’s direct appeal for a new trial.

A direct appeal contests rulings and issues that came up before and during a trial and in the sentencing process. Post-conviction relief is a lawsuit filed in civil court that seeks to raise new claims to challenge a conviction.