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Gattuso murder trial will pit familiar foes

A murder trial begins Tuesday for a man accused of beating to death a Fargo dentist, Philip Gattuso, for a $3,000 payoff from Gattuso's former father-in-law.

A murder trial begins Tuesday for a man accused of beating to death a Fargo dentist, Philip Gattuso, for a $3,000 payoff from Gattuso's former father-in-law.

It's a high-profile trial a year in the making that's set to last through the end of next week. The lawyers trying the case are bound to be at odds on a variety of legal issues throughout the nearly two-week trial.

But Steve Mottinger, the attorney for alleged hitman Michael Nakvinda, and one of the three prosecutors on the case, Mark Boening, agree on at least one point.

Both have said there is more evidence to sift through in the investigation of Nakvinda and Gene Kirkpatrick -- Gattuso's father-in-law, who is scheduled to stand trial in March -- than in any state case either of them has handled. That's saying a lot given the history both attorneys have with big trials, often squaring off in some of the city's most infamous trials in recent history. In an area where a homicide is a rarity, Boening and Mottinger are about to start the sixth murder trial in which they have been on opposite sides of the aisle.

"It is remarkable to have that many murder trials against one attorney," said Adam Hamm, a former assistant Cass County state's attorney who co-prosecuted one of the five prior trials.


Part of the reason the two attorneys have such a long history is they're veteran lawyers who've been in the same roles for two decades plus. Mottinger first began public defense work in 1983. Boening, an assistant Cass County state's attorney, started there in 1985.

"They go back the farthest," said Monty Mertz, supervising attorney for Fargo's public defenders. "That's the nature of the beast. It's just logical that's the way it would play out."

Given the unwillingness for younger lawyers to stay in one post for such lengths of time, that sort of past on big cases is unlikely to be repeated, said Hamm, who is now the North Dakota insurance commissioner.

"I'd be surprised if you ever saw it again," he said.

Does past matter?

Neither attorney wanted to comment in depth about their murder-trial history dating back to 1992, but both had positive things to say about one another.

Boening said though they rarely see eye-to-eye, there is a level of trust springing from years of facing off versus Mottinger in court.

"If he tells me something, I tend to believe it," said Boening. "I think he would feel the same way."


Mottinger said he thinks Boening "plays fair," along with the rest of the prosecuting attorneys who work for State's Attorney Birch Burdick. That knowledge makes trying a case easier in one sense, he said.

"On the other hand, Mark's a damn good lawyer," Mottinger said.

Burdick declined to comment for this story. He and Ryan Younggren, an assistant state's attorney, are also prosecuting Nakvinda and Kirkpatrick.

Other attorneys had differing takes on whether a history of facing a particular in-court adversary had much of an effect on a trial.

Mertz said past dealings are far more important in cutting plea agreements.

"It doesn't have a huge bearing on it. It's more in the negotiation, the behind-the-scenes things," he said.

John Goff, a Fargo attorney who was the Cass County state's attorney when Boening was hired, said he sees it as a potential but minor factor.

"It might affect, a little bit, your expectations and your presentations of the case," Goff said. "Some lawyers I trust more than others, I guess it boils down to."


But Hamm said he expects the past of the two lawyers is something that will play into preparations for the Nakvinda trial.

"It's kind of like two sport teams that have an intra-division rivalry. You know the others' strengths and weaknesses," he said. "I guarantee that analysis is going on for both sides."

Boening protested to a sports analogy, saying that focusing on attorneys does not adequately recognize how many people are involved in a criminal case.

What experience brings

Attorneys who've worked with both the trial veterans say their experience will no doubt prove valuable.

"He's been there, done that," Mertz said of Mottinger. "I think it's extremely important."

Mertz said Mottinger - a private attorney who does public defender work on contract -- is designated as one of the state's "major case" contractors.

The major case system is patterned after a similar program in Minnesota and began about a year ago, he said. It's designed to give public defenders the time to mount an effective defense in cases where long prison terms are possible, such as a murder case.


"When you have the highest stakes, you have to pull out all the stops," Mertz said. "That's all you do, every waking moment."

Hamm said the trial history Boening has was clear in their successful prosecution of Kyle Bell, convicted in 1999 for the murder of Jeanna North, 11, Fargo. He said presenting a complex case such as that goes beyond the nuts and bolts of the evidence and the elements of the crime.

Much of their time prepping for the Bell trial was spent crafting three main themes that made the case easy for the jury to grasp, Hamm said.

"You can't just think in a trial of this magnitude that you're just going to throw witnesses on the stand and that's going to be enough. You've got to connect with people," he said.

Hamm has also been impressed by Mottinger, who he said was good at hammering away at holes in the state's evidence.

"If you had some flaws in your case, Steve was going to find them," he said.

Goff also credited both men as sharp trial lawyers. He said Boening was one of his top assistants in part because he had the out-of-court decision-making that death cases require.

"It's more than just the facts and the law," he said. "You've got family members. You've got the community interest."


A glance at the history

Here are the five Cass County murder trials that previously pitted Boening for the state against Mottinger for the defense:

David Sumner, 1992

A jury took four hours to find David Sumner not guilty of murder, a trial Mottinger had successfully gotten moved to Bismarck because of concerns about the effects of pretrial publicity.

Sumner was one of two men who had been accused of beating Terry Dorff to death with a rock. Reginald Tweed, the first man tried in the case, was convicted but then refused to testify against Sumner.

Without the testimony of Tweed, Mottinger argued in closing that the state's case had devolved to mere "smoke and mirrors."

Dale Burke, 1998

A defiant Dale Burke was found guilty of killing two of his roommates before he burned down their north Fargo house. He was found with the blood of one of the victims on his jeans and was seen exiting the house just before the fire started.


Burke is serving two sentences of life in prison with no chance of parole. Mottinger had argued possible parole would have given Burke incentive to change.

Kyle Bell, 1999

Though long thought to be responsible for the 1993 death of 11-year-old Jeanna North, Kyle Bell -- who lived across the street from the North family -- didn't stand trial for her murder until six years later.

Though Mottinger did get confessions Bell made to police thrown out pretrial, the convicted child molester was found guilty and sentenced to life in prison.

North's body still hasn't been found. In his confession to police, Bell said he tied her to a concrete block and dropped her in the Sheyenne River.

Kenneth Jacob, 2006

Accused of murder after running over a man who'd passed out drunk behind his gravel truck, a jury acquitted Kenneth Jacob of both murder and a lesser negligent homicide charge.

Boening had argued that witnesses made clear Jacob knew Stephen Nelson was behind his truck.

Jacob was convicted of leaving the scene of a fatal accident and was sentenced to five years in prison.

- Dennis Gaede, 2006

Cass County jurors found Dennis Gaede guilty of murder in the 2001 killing of Timothy Wicks, a man whose identity Gaede had been stealing. Wicks' body was hacked into pieces and scattered along the Wisconsin-Michigan border.

The prosecution team of Boening and Burdick relied heavily on the testimony of Gaede's ex-wife in getting a conviction that led to a sentence of life in prison without parole.

-The Forum of Fargo-Moorhead and the Herald are owned by Forum Communications Co.

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