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Published January 07 2011

Kirkpatrick trial: Venue change sought

Attorneys for Gene Kirkpatrick want a Cass County judge to move the Oklahoma man’s trial to Bismarck or Minot and throw out statements he made to authorities investigating the death of Fargo dentist Philip Gattuso, arguing Kirkpatrick was “psychologically coerced.”

Cass County State’s Attorney Birch Burdick said through one of his assistant attorneys that his office anticipated the defense motions and will prepare a written response by Jan. 18 to resist them.

Kirkpatrick, whose daughter was married to Gattuso until her death in March 2009, is accused of paying Oklahoma City handyman Michael Nakvinda to kill Gattuso, who was found beaten to death in his south Fargo condo on Oct. 26, 2009.

In a motion filed Wednesday, Kirkpatrick’s attorneys seek to suppress statements he made to detectives five days after Gattuso’s murder, arguing Kirkpatrick was “illegally and unlawfully interrogated” at the Jones, Okla., police station.

Fargo Police Detective Paul Lies and an agent from the Oklahoma State Bureau of Investigation, along with other law enforcement officers, “psychologically coerced Mr. Kirkpatrick by questioning him at length when they knew him to be extremely fatigued,” states the motion signed by defense attorney Steven M. Light.

“The officers preyed unmercifully on the extreme sorrow and anger that they knew to understandably be embroiled within the heart of Mr. Kirkpatrick due to the tragic emotional loss of his daughter, Valerie, which culminated over a nineteen (19) month period of time,” the motion states.

Light and co-counsel Mack Martin contend officers “repeatedly lied” to Kirkpatrick about information regarding Gattuso’s murder, including telling Kirkpatrick that Nakvinda had already confessed and implicated him. Lying to suspects is a legal and common police interview tactic.

The attorneys also claim officers “spoon fed” reasons to kill Gattuso that they knew would “further enrage Mr. Kirkpatrick and cause him further emotional instability.”

Kirkpatrick had arrived in Oklahoma less than 30 minutes before the interrogation after making a 14-hour drive from North Dakota, the motion states.

“Understandably, he was sleep deprived and unable to completely and correctly process his surroundings,” it states.

Voluntary or not?

Kirkpatrick was arrested two days after the interrogation and charged with conspiracy to commit murder.

Prosecutors played a recording of the interrogation as evidence during Nakvinda’s jury trial.

Kirkpatrick also voluntarily took the stand as a prosecution witness in the trial, testifying that he was tired and stressed during the interrogation and that investigators “were putting words in my mouth.”

He testified his discussions about having Gattuso murdered were mere “locker-room talk” and that the $3,000 he paid Nakvinda was for work Nakvinda did for his daughter and for work he was going to do on his own acreage outside of Oklahoma City.

West Fargo defense attorney Robert Hoy said it’s common practice to try to suppress police interviews, but the Kirkpatrick case is unusual in that he voluntarily took the stand and testified about the interrogation his lawyers now want tossed out.

“And so there would be a good argument, I think, by (prosecutors) that even if the statement were illegally obtained and the judge suppresses it and suppresses the video, that they may still be able to … basically read into evidence here his testimony in the Nakvinda case, because that was voluntary,” Hoy said.

On the other hand, Kirkpatrick’s attorneys could argue that if his statements hadn’t been obtained illegally, there would have been no statements for Kirkpatrick to testify about, Hoy said.

The judge will look at the entirety of the circumstances surrounding Kirkpatrick’s statements, including his age, prior experience with law enforcement, education and whether he was advised his statements could be used against him, said Mark Friese, a former police officer who is now a criminal defense attorney at Vogel Law Firm in Fargo.

“Most often, challenges to the voluntariness of a confession are successful only if law enforcement overbears the will of a person,” Friese said. “More bluntly, it occurs most often when law enforcement exacts a confession out of somebody that’s uneducated and unable to understand the circumstances in which they’re providing the statement.”

“My thoughts are that based on the limited things that I’ve seen from the Nakvinda trial, Mr. Kirkpatrick is an educated, bright, articulate person who is fully capable of understanding the implications of providing a statement to law enforcement,” Friese said. “And therefore I suspect it’s unlikely that the judge would conclude that those statements are inadmissible.”

When asked at the end of the interrogation if he’d felt he was in custody – relevant because he wasn’t given the Miranda warning that must preface custodial interrogations – Kirkpatrick waved off concerns and said he hadn’t been entrapped.

“You’re all doing your job. You’re supposed to do this,” he told his interrogators. “I like you two.”

Venue change sought

In the change-of-venue motion filed Wednesday, Kirkpatrick’s attorneys argue that extensive media coverage of the case within Cass County has created “so great a prejudice against the defendant” that he can’t receive a fair and impartial trial here.

They note that The Forum alone has published more than 100 articles in the past year about Kirkpatrick’s alleged involvement in Gattuso’s death and the custody battle that ensued over Gattuso’s daughter.

“Coverage of such cases typically calms down following the arrest of suspects and the passage of time. This case has presented a quite different dynamic,” the motion states.

The recent trial of Nakvinda, who was found guilty of murder, robbery, burglary and theft by a Cass County jury on Dec. 10, further heightened public interest in the case, the attorneys argue.

The North Dakota Supreme Court has expressed a preference for judges to delay making a change-of-venue determination until after they try to seat a jury, Friese and Hoy said. If the judge finds that prospective jurors know too much about the case or have already formed opinions about it, they may then decide to move the trial.

The fact that a jury was able to be seated for the Nakvinda trial in Fargo doesn’t mean the same thing will happen with Kirkpatrick, Hoy said.

“Clearly, everybody knows more about it now than they did before the Nakvinda trial,” he said. “So I think that the jury pool is different now.”

Judge Steven Marquart is scheduled to hear the motions on Jan. 27.

If he denies the change-of-venue motion, Kirkpatrick’s attorneys are asking that his Feb. 28 jury trial be continued to a later date to avoid any possible jury bias created by the proximity to Nakvinda’s Jan. 28 sentencing.


Readers can reach Forum reporter Mike Nowatzki at (701) 241-5528