[media id=13 width=320 height=240]
[media id=2 width=320 height=240]
Kody Patten could likely face the death penalty for the murder of Micaela Costanzo according to his court appointed Attorney Robert Ohlson of Reno.
“It does appear that (District Attorney) Mark Torvinen is headed in that direction,” Ohlson said in a telephone interview with the High Desert Advocate Wednesday.
A major signpost indicating that direction is the appointment of Ohlson himself. One of the most experienced death penalty trial lawyers in the state, Ohlson was appointed Tuesday by Elko Justice of the Peace Al Kacin. In addition to the Reno death penalty expert Kacin also appointed Elko Attorney Jeffrey Kump, the only local attorney in Elko certified to try death penalty cases.
In addition to appointing the two certified death penalty attorneys Kacin also removed the Elko Public defender Alina Kilpatrick over her and her supervisor’s objections from the case even as a second assistant attorney.
By his own admission Patten, 18, killed Micaela Costanzo March 11 after driving the 16 year old West Wendover girl five miles out of town.
When first interviewed the morning after her disappearance Kody Patten told Police he had no knowledge of the whereabouts of Micaela “Mickie” Costanzo.
Two days later Patten confessed to killing the young girl but only “accidentally”.
According to the report Patten in a borrowed SUV somehow got Costanzo into the vehicle shortly after she emerged from the girls locker room after practice. Instead of driving her home, Patten drove out to the gravel pits about five miles west of town. There he told Police Detective Donald Burnham they fought. At just under 6 feet and weighing 190 lbs, Patten towered over the barely 5 foot tall Costanzo and outweighed by over 80 pounds.
Ignoring his claim of accident and panic, Patten’s statement to police could put him on death row by itself. Capitol punishment in Nevada is reserved for premeditated murder with extenuating circumstances which include:
Murder perpetrated by means of poison, lying in wait or torture, or by any other kind of willful, deliberate and premeditated killing.
Murder committed in the perpetration or attempted perpetration of sexual assault, kidnapping, arson, robbery, burglary, invasion of the home, sexual abuse of a child, sexual molestation of a child under the age of 14 years or child abuse.
Murder committed to avoid or prevent the lawful arrest of any person by a peace officer or to effect the escape of any person from legal custody.
Murder committed on the property of a public or private school, at an activity sponsored by a public or private school or on a school bus while the bus was engaged in its official duties by a person who intended to create a great risk of death or substantial bodily harm to more than one person by means of a weapon, device or course of action that would normally be hazardous to the lives of more than one person.
Patten own statements qualifies him for at least three of those special circumstances and if the autopsy of his victims body reveals a sexual assault it will be four.
But while Patten could qualify as a candidate for the death penalty, Torvinen must weigh the considerations of whether Elko County should seek his execution. First and foremost is whether an Elko County jury would impose it.
“He is young and there is a man/woman element in this case,” Ohlson said. “That usually mitigates it among jurors.”
Patten turned 18 on December 31, 2010 and the man’s relative youth at the time of the crime could be used by the defense to play on the sympathies any future jury should the case go to trial.
“Finding someone guilty of a heinous crime is one thing sentencing them to die is quite another,” said one attorney who declined to be identified. “In this case a jury could very well convict him of first degree murder without any reservation but one or two of the panel could have major problems about sentencing him to die especially if there is the life without the possibility of parole option.”
Another consideration is cost. The price tag to Elko County of a trial with the death penalty in consideration could be as much as ten times that of a regular felony case. And while Torvinen would bristle at the notion of putting a price tag on justice in a cash strapped county the unexpected cost of a death penalty trial would raise eyebrows.
Perhaps the most pragmatic argument against seeking the death penalty for Patten is how capitol punishment is or rather is not administered in the state of Nevada.
Of the 85 inmates on Nevada death row more than half have been there for over a decade and at least a dozen have been there 20 years or more.
And since the death penalty was reinstated only one death row inmate was executed after exhausting all appeals. The other 12 men simply opted out of the appeals process in a kind of suicide by the state.
While most critics place the blame of the lengthy appeals process on the Ninth Federal Circuit Court blame must also be shared by the Nevada Supreme Court.
In fact it is the interplay between appealing to the state then appealing to the federal level that has been perfected by long serving death row inmates.
“The way the system is set up you can send an appeal to the state and then appeal the decision to the feds.” Said one defense attorney who declined to be identified. “It can be virtually endless.”
Apart from staving off death by lethal injection which is reward in itself many death row inmates also hold out hope that the death penalty itself will be abolished as it was in 1974.
While support for it especially in Nevada and other western states has never fallen below 60 percent there are signs that on the federal level could well indeed abolish the death penalty. Last year the US high court ruled that executing minors and mental defectives was cruel and unusual punishment.
Literally hundreds of appeals either directly or indirectly related to the federal ruling.
“Every time there is a federal ruling it opens another door for other death row inmates.” The attorney continued. “They are probably not going to win but winning isn’t the only objective the real point is to gain more time.”
More time for the high court for the court to abolish the death penalty altogether and/or more for the public to grow disgusted with the system and scrap the death penalty as unworkable.
While the death penalty is still supported by an overwhelming percentage of the population support is waning even in Nevada when the sentence takes decades to carry out.
And if one had to serve time one could do worse than Ely’s Death row. Although conditions are Spartan they are considered the most comfortable in the whole prison.
“Even the guards will tell you that death row has the least amount of tension,” said chief Attorney for the ACLU of Nevada Allen Liechtenstein.