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The fate of accused killer Toni Fratto could hang with a decision by Elko Judge al Kacin who is expected to rule on whether or not Fratto’s confession to the murder of Micaela Costanzo to the lawyers of her boyfriend Kody patten is admissible in court.
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In six hour hearing featuring attorneys the Elko District Attorney’s office, Patten’s lawyers John Ohlson and Jeffrey Kump and fratto’s attorney John Springgate of Reno, Kacin heard arguments whether or not Fratto’s confession was protected under attorney client privilege and therefore inadmissible as evidence in a future trial.
Until a very partial transcript was released in Torvinen’s motion details of Fratto’s confession were not released to the press or the public. While that portion details only the first few minutes of the interview it does confirm the general belief that whether lying or not Fratto confessed not because of any overwhelming guilt to the crime but rather to “help” her boyfriend.
It is also clear that Fratto is under the impression that she, her boyfriend Patten and Patten’s attorneys are on the same team and even if they cannot officially represent her, they will take care of her.
In their response to Torvinen’s motion in limine, Fratto’s attorneys John Springgate and David Lockie allege that Fratto was lied to and manipulated by Ohlson and Jeff Kump to put herself possibly on death row while giving her vague assurances that anything she said would be more or less confidential.
Portions of the Fratto’s confession were released last week as part of motion in limine by Elko County District Attorney Marc Torvinen. In this case Torvinen’s motion is an attempt to preempt a defense move that would seek to throw out Fratto’s confession on the grounds of attorney/client privileged conversation and therefore inadmissible in court.
Patten was arrested for the March 3rd murder of Micaela Costanzo three days after she had gone missing and within a few hours after her body was discovered in a shallow grave some 5 miles west of Wendover.
Patten cracked and admitted to killing the young girl after an all night interrogation session and a phone call to his father Kip. According to police reports at no time during the intense 8 hours of so of questioning did Patten implicate his live in girlfriend Fratto in the crime and indeed may have even used her as his alibi.
For the first six weeks after his arrest, it was the position of the Elko District Attorney’s office and the Elko Sheriff’s Department that Kody Patten was the sole suspect in the case and would alone stand trial for the murder of Micaela Costanzo.
All that changed early last month when John Ohlson, Patten’s lead attorney released the bombshell confession from Toni Fratto in which she claims it was she and not her lover who killed Costanzo. Within 24 hours of Ohlson’s release of the taped confession to the court, Fratto was arrested and charged with the death penalty eligible open murder of her classmate.
If the confession is thrown out there is serious doubt that enough evidence would remain to convict Fratto at least on the murder charge. According to sources close to the investigation there is very little if any forensic evidence that implicates Fratto or that cannot be explained away.
Also there is the fact that the prosecution was ready to prosecute Patten alone and that Fratto was not even a suspect or a person of interest in the crime until she said what she said to her boyfriends attorneys.
At least in the battle over the DA’s motion, it appears the prosecution and Patten’s lawyers have the mutual goal of seeing Fratto’s confession placed in evidence and Toni Fratto be tried for the murder of Micaela.
Time and time again Ohlson is mentioned in support of the DA’s assertion that Fratto’s confession is not protected by the attorney/client privilege. And for their part Fratto’s lawyers accused Ohlson of blatantly misleading their client and perhaps even violating the attorney rules of conduct.
Ohlson is not the only one to come harsh criticism from Springgate and Lockie. Kip Patten, Kody’s father also comes under the gun for unduly influencing Fratto. According to the response Kip Patten took the opportunity the absence of Toni Fratto’s parents Cassie and Claud, from town to drive their daughter from Wendover 110 miles to Elko for that fateful meeting in Kump’s office.
Sources close to the investigation also doubted the former Wendover Junior Miss’ tale, simply because Fratto may simply not have had enough time to do what she claimed to have done.
While the girl’s whereabouts is not known from 5 pm, she and her mother were recorded as being in attendance at a West Wendover Recreation District meeting at 6 pm and witnesses report they arrived a few minutes before the meeting was gaveled to begin.
However even if Fratto’s confession is thrown out or she publicly recants and is absolved of the crime her confession and the District Attorney’s resulting charging may have severely weakened the case against Patten. A jury might be very well asked how could anyone believe the police or the prosecution when they contradict each other on a weekly basis?
Editors note: the District attorney’s motion in liminen as well as the response are available for down load in the entirety at www.coyote-tv.com.