Former emergency room physician Richard Conte, serving up to 15 years for kidnapping and drugging his ex-wife, wants his conviction overturned, claiming ineffective representation and other issues.
His former lawyer, William Cole, was cross-examined for more than five hours over two days this week as to his defense of the 56-year-old Conte, now incarcerated at the Lovelock Correctional Center.
Conte is eligible for parole June 18, 2008, according to Nevada Department of Corrections records.
According to Conte's petition for post-conviction relief, Cole allowed his client to plead guilty to an improper charge, failed to advise him after conviction of his right to appeal, didn't conduct a thorough investigation of the case or attempt to suppress statements and evidence against Conte.
Through his court-appointed lawyer Terri Roeser, Conte also stated that he has been diagnosed with multiple sclerosis and early onset of the disease contributed to his aberrant behavior and might have offered "heart-breaking mitigation" had the information been used in his defense.
He pleaded guilty to kidnapping Lark Gaithright-Elliott from Salt Lake City, drugging her, and bringing her back to his home in northern Douglas County on June 21, 2002.
The couple had been married in December, 2001, but Gaithright-Elliott filed for divorce 90 days later.
According to Gaithright-Elliott, she found Conte inside her Salt Lake City home on June 19, 2002, holding a gun with a silencer and scope in one hand and a stun gun in the other.
She said he forced her to drink a "cocktail" of the tranquilizer Ativan, cough syrup and vodka. She said she was unconscious for much of the 300-mile trip to Nevada and awoke handcuffed to his bed.
He released her just as deputies - alerted by her family members - arrived at his door.
"The trial counsel did nothing to explore why a normally law-abiding professional individual would suddenly engage in such poor judgment and participate in the offenses he was charged with," Roeser wrote in her motion.
"The result would have been different if it had been known that the petitioner was suffering from multiple sclerosis which normally has an impact on one's cognitive function including reasoning, judgment, memory and problem-solving."
Conte filed his petition a year ago, and Roeser was appointed to represent him after he said he was indigent.
The matter was heard Monday and Tuesday before District Judge Dave Gamble.
Cole testified that he was retained by Conte in August 2002, taking the case over from Carson City lawyer Patrick Walsh.
When Roeser brought up the lack of a record of Cole's billable hours, the Stateline lawyer said Conte agreed to a flat fee of $15,000 for 75 hours at $200 an hour.
Cole said he knew early in the case that it would not go to trial because of Conte's statements to police and the evidence against him.
"It appeared to me this was not a triable case," Cole testified. "From his own mouth, he (Conte) had made statements that incriminated him."
Cole said a plea negotiated with prosecutor Mark Jackson was in the defendant's best interest.
In exchange for Conte's guilty plea to second-degree kidnapping and administering a drug in commission of a felony, the state would drop a deadly weapon enhancement that could have doubled the penalty and additional drug and stolen property charges.
Cole said Jackson was adamant he wouldn't budge on the terms.
"Mr. Jackson told me, 'If I have to lift a finger on this case or call a witness, I am going to re-evaluate how I charged it,'" Cole testified.
Cole also said he was trying to satisfy federal officials who could have added charges that would put Conte in prison for up to 30 years.
Roeser challenged Cole over how he and lawyer Loren Graham set fees for Conte's defense on a federal indictment.
Cole said he told Conte he didn't have experience in federal court and recommended Graham who worked in the same building at Stateline.
Cole said he and Graham split a $10,000 retainer which Roeser claimed violated Supreme Court rules.
Cole testified he couldn't remember some conversations with his client or details of memos in the 4-1/2 years since the sentencing.
According to Cole, the only aspect of the plea bargain Conte disliked was the forfeiture of numerous guns, ammunition and surveillance equipment.
On Dec. 17, 2002, when Conte pleaded guilty, he told Judge Dave Gamble he understood the charges against him and the possible penalties and that he wasn't forced into the agreement or promised anything other than the terms of the negotiated settlement.
The day of the plea, Conte told Gamble he was pleading guilty "to avoid going through a trial and confronting the people that I've had - that I've dealt with."
Cole said he was aware that the drug administration charge was a lower category of felony, but he assumed Conte would serve consecutive sentences, so it didn't matter.
He admitted he told Conte "it wasn't worth fighting for," because he believed the higher penalty would have no effect on the sentence.
At his sentencing in February 2003, Gamble ordered the terms be served together.
"Much of the issue of ineffective assistance depends on the likely outcome with better representation," Gamble interjected Monday. "Don't we come down to the issue of 'no harm, no foul?'"
Roeser said Conte made his decision based on Cole's advice.
"Would this individual have pleaded if he had been represented by somebody else?" she asked.
"If you look at the totality of the circumstances and look at the other issues, our position is there wouldn't have been a plea at all," Roeser said.
Gamble also pointed to his extensive questioning of Conte when he accepted the plea, saying the defendant seemed to be "cognitively conscious of what he was doing."
Cole said he didn't conduct an independent investigation into the federal indictment because he didn't believe any challenges could be made.
"Considering the offer made, considering what he (Conte) told me, considering the statements to police, I didn't think there was much to investigate," Cole said. "I was satisfied I wasn't going to find any secrets."
Cole said he made no effort to interview the victim and preferred to keep her off the witness stand so "she wouldn't stir things up."
"I didn't have any reason to believe she changed her statement. I talked to Dr. Conte and there wasn't that much conflict in their stories. There was no need to investigate her background because of the charge we were pleading to," he said.
"What if she was a two-time felon?" he asked hypothetically. "She still started out in Salt Lake City and ended up in handcuffs in Carson City."
Cole said he never met with Conte after his sentencing in February, 2003, even though his retainer agreement states appellate issues shall be discussed with the client. He also said Conte made no effort to contact him.
"I did not advise him he had rights of appeal. I didn't advise him of the timeframe to appeal. There was nothing to appeal as far as I was concerned," Cole said. "We got what we needed to stay out of the clutches of the feds and that was it as far as I was concerned."
Dr. Timothy Doyle, a Carson City neurologist, testified that he examined Conte in Nevada State Prison in May, 2004, and that he had multiple sclerosis and impaired vision.
Doyle said common symptoms include numbness or tingling, problems with vision and walking, depression and cognitive abnormalities.
Based on Conte's medical history, Doyle said it was possible he could have had the disease at the time the crime was committed, but he couldn't say for sure.
Under questioning by prosecutor Kris Brown, Doyle said a lay person wouldn't be expected to suspect multiple sclerosis when confronted with Conte's symptoms.
Cole said in his earliest meetings with Conte, the defendant seemed embarrassed.
"His attitude was he was embarrassed and didn't want to drag Lark and other people into court either out of embarrassment or whatever," Cole said.
"I think he realized we had real problems with the federal case," Cole said. "The punishment was tremendous. If they could prove a silencer was used, 30 years was the sentencing guideline. That was enough to scare me and I think him.
"He was depressed, but understood the position he was in. I don't think he was confused. He knew what he was doing and had no problem understanding," Cole said.
Gamble continued the hearing to June 22 when Graham is to testify.
Conte, who was housed at Douglas County Jail on Monday and Tuesday, was returned to the Lovelock Correctional Center.
