- Associated Press - Thursday, August 7, 2014

FARGO, N.D. (AP) - The former attorney for an Oklahoma man convicted of hiring a hit man to kill his son-in-law in North Dakota said he didn’t want his client on the stand during the 2011 trial because he thought he would talk too much, citing the man’s testimony Thursday in which he mentioned the Super Bowl, Colin Powell, the Middle East and TV lawyer Perry Mason.

Gene Kirkpatrick, of Jones, Oklahoma, is serving life in prison without parole for paying a man $3,000 to kill Fargo dentist Philip Gattuso in 2009 because Kirkpatrick thought Gattuso was a poor parent to his granddaughter. Kirkpatrick’s daughter, Valerie, died of a long illness seven months before Gattuso was killed.

Kirkpatrick wants his conviction overturned because he believes his trial lawyer, Mack Martin, made a mistake by not allowing him to testify, and a hearing was held Thursday in East Central District Court.

Kirkpatrick, 67, made the trip from the South Dakota State Penitentiary in Sioux Falls to testify Thursday. He said it was “extremely to my disadvantage” to be kept off the stand.

“He was very convincing and very convinced that I shouldn’t do that,” Kirkpatrick said of Martin. “If I did it, it would be against his will and his advice and his desire. At the time, I had a lot of confidence in Mack.”

Martin, who testified via telephone, said he decided near the end of the trial to keep Kirkpatrick off the stand because Martin thought the proceedings were going better than anticipated and allowing prosecutors to drill Kirkpatrick could turn the tide.

“I would think Gene would have a hard time, as today, not answering the question directly,” Martin said.

Both Martin and Kirkpatrick said during questioning by Cass County State’s Attorney Birch Burdick that Kirkpatrick did not protest about the decision to keep quiet. Kirkpatrick added that Martin had outlined the pitfalls that come with testimony and cross-examination.

“Mr. Burdick, Perry Mason does that,” Kirkpatrick said.

Investigators said that Michael Nakvinda, an Oklahoma City handyman who used to do odd jobs for Kirkpatrick, beat Gattuso to death with a hammer. Nakvinda was sentenced in January 2011 to life in prison for murder and three other counts.

The centerpiece of the trial against Kirkpatrick was a nearly three-hour interview he gave to police investigators in which Kirkpatrick admitted he asked Nakvinda how much it would take to kill Gattuso and said he thought his granddaughter’s welfare was more important than Gattuso’s life. Kirkpatrick said the interview exonerated him because he never agreed to close the deal and said so many times. There was no formal agreement, Kirkpatrick reiterated Thursday.

Kirkpatrick should have been allowed to elaborate and provide context to the interrogation by police, who twisted his client’s words, said Ryan Thompson, Kirkpatrick’s lawyer in the civil case. Thompson said it would be a “dicey gamble” but one that should have been up to Kirkpatrick.

“It falls below the standard of acceptable defense because it’s the only defense,” Thompson said of Kirkpatrick taking the stand. “There is no substitute.”

Burdick said Kirkpatrick cannot prove his lawyer did a poor job or was prejudiced by other factors. Martin gave Kirkpatrick “the value of his 35 years as a criminal prosecutor,” Burdick said, and Kirkpatrick chose to accept it.

“There’s no one here who can say whether another defense attorney would have done it differently nor really whether the result would have been any different,” the prosecutor said.

East Central District Judge Steven Marquart said he would take the case under advisement.

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