FARGO – Gene Kirkpatrick, an Oklahoma grandfather convicted of conspiring to hire a hitman to orphan his granddaughter in Fargo, has revealed in a new lawsuit seeking post-conviction relief that Cass County State’s Attorney Birch Burdick offered him a plea deal before his jury trial in 2011.
As grounds for his suit, Kirkpatrick claims that one of his attorneys, Steven Light, gave him bad advice when deciding whether to accept the plea deal. Consequently, Kirkpatrick believes the process that led to him receiving a life sentence with no chance of parole was unfair, and he’s seeking a shorter prison term.
The plea deal would have called for Kirkpatrick to be given a 28-year sentence. Light, who killed himself in 2012, advised Kirkpatrick that state law would require him to serve 85 percent – or close to 24 years – of that sentence, Kirkpatrick wrote in his application for post-conviction relief, which was filed last week in Cass County District Court.
Kirkpatrick, who was 64 years old when convicted, calculated that a prison term of nearly 24 years “would be the functional equivalent of a life sentence. Therefore based upon that analysis, we rejected the plea offer and went to trial,” Kirkpatrick wrote.
However, this reading of the state’s 85 percent rule was incorrect.
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The rule applies to certain violent offenses, like murder or burglary involving the use of a weapon. But Kirkpatrick was charged with conspiracy to commit murder and conspiracy to commit burglary. And in such conspiracy cases, the 85 percent rule does not apply, said Patrick Bohn, clerk of the North Dakota Parole Board.
Kirkpatrick, now 68, wrote that had he known the 85 percent rule was not in play, “I would have pleaded guilty for a 28-year term because I would have been eligible for parole within a reasonable time considering my age.”
Parole eligibility?
When Kirkpatrick would have been eligible for parole is unclear. Nothing mandates that an inmate be considered for parole after serving a certain amount of time, Bohn said.
The parole board has wide discretion as to when it decides to review an inmate’s case. In doing so, the board takes into account factors such as the length of sentence, prior criminal record and severity of the offense, Bohn said.
In 2011, a jury convicted Kirkpatrick of hiring his handyman, Michael Nakvinda, to kill Kirkpatrick’s son-in-law, Phillip Gattuso, a Fargo dentist. Nakvinda was convicted of beating Gattuso to death with a hammer in Gattuso’s south Fargo condominium. Like Kirkpatrick, Nakvinda was sentenced to life without the possibility of parole.
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.
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‘Always a risk’
This is Kirkpatrick’s second application for post-conviction relief. In his first application, he sought a new trial or acquittal, claiming that his main trial attorney, Mack Martin, gave him bad advice by urging him not to testify.
District Judge Steven Marquart denied the first application in August, and Kirkpatrick is appealing the judge’s decision. Monty Mertz, the attorney representing Kirkpatrick in that appeal, declined to comment.
Burdick said Tuesday that he had not yet read Kirkpatrick’s most-recent application for post-conviction relief, and he declined to discuss its details. As for offering Kirkpatrick a plea deal, Burdick said that in most cases, prosecutors and defense attorneys discuss whether there’s a resolution that’s acceptable to the two parties.
“The reason for that is there’s always a risk to both sides to going to trial,” he said, adding that in the Kirkpatrick case, a resolution could not be reached, so the case went to trial.
Separate from Kirkpatrick’s applications for post-conviction relief, the North Dakota Supreme Court rejected his appeal for a new trial in 2012.
