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Could Kody Patten escape a death sentence because he did not rape his victim before he killed her?
Preliminary autopsy results reveal that a 16 year old West Wendover girl was not raped by her confessed killer Kody Patten said a source close to the investigation.
Juries are much more likely to give a death sentence if rape is involved according to even a cursory survey of Nevada death row inmates. Sexual assault or torture is key element of crime committed by the most 78 men now on Nevada death row. While for inmates serving even life without the possibility of parole for premeditated murder a sexual assault element is much rarer according to prison estimates.
Rape by itself used to be punishable by the death penalty in Nevada until capital punishment was first declared unconstitutional in 1972.
When the state reinstated capitol punishment in 1976 only those convicted of murder with special circumstances became eligible for the death sentence.
However the source also said there was enough evidence in both Patten’s still un-released confession and the autopsy to “easily support” a death penalty for Patten.
The source also revealed that there were major inconstancies between the autopsy and the confession most of which point to a brutal premeditated murder rather than a tragic accidental death Patten claimed it was.
The soonest date the autopsy could be released will be at Patten’s preliminary hearing scheduled for May 5th to May 6th, however that could be very unlikely.
According to Nevada law the prosecution must only prove it stands a reasonable chance of conviction of any felony listed in a complaint to bind a suspect over to trial. The definition of “reasonable” can be extremely broad.
In addition to being charged with open murder that qualifies for the death penalty, patten could and probably will also be charged with second degree murder, manslaughter and perhaps involuntary manslaughter.
More likely to be release to the court and the public will be Elko Detective Kevin McKinney’s synopsis of Patten’s confession and perhaps testimony from the lead detective on the case Donald Burnham of the West Wendover Police Department.
Behind the scenes the Advocate has confirmed that even before the preliminary hearing Patten’s high powered defense team is working to get all or part of Patten’s confession suppressed.
Speaking on the condition of anonymity, the lawyer said that anything Patten said after he was formally arrested by West Wendover Detective Donald Burnham may be deemed inadmissible.
“The first thing I would do,” an attorney familiar with death penalty defenses said. “ Would be to move that the confession be surprised and I think I would have more than a fair chance of winning.”
After several hours of interrogation that began three days after Costanzo’s body was found and went into the early morning hours of the following morning Patten finally admitted that he had driven Mickie Costanzo to the location where her body was found. According to the report prepared by Elko County lead detective Kevin McKinney, Patten was then immediately given his Miranda Rights and placed under arrest by West Wendover Police Detective Donald Burnham.
According to McKinney’s report, instead of asking for a lawyer Patten asked to call his father and a short time later confessed to the killing even while insisting it was an accident.
“Patten’s lawyer could well argue that no matter how well intentioned his father’s advice was it was inherently bad from a legal perspective,” the attorney said. “There is no way any attorney would tell his client to confess to this crime especially to most of the elements that warrant a death penalty.”
Even without the confession the case against Patten is still strong and getting stronger. Police have the digital recording of Patten waiting outside the West Wendover High School girls locker room waiting for Costanzo, they may also have the murder weapon, a shovel along with Patten’s finger prints on it.
“From what I have read the confession is just the icing on the cake,” the attorney said. “Sure it would be nice to have but taken with everything else it may not be necessary. Of course the autopsy report may make it irrelevant altogether.”
The complete report as well as the autopsy could contain much more damning evidence against Kody Patten, perhaps enough to compel a death penalty.
“It does appear that (District Attorney) Mark Torvinen is headed in that direction (death penalty),” said his court appointed Attorney John Ohlson of Reno
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 last 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.
The appointment of the team also signals that the most important part of the trial will not be to established Patten’s guilt but rather to save his own life.
If the case does go to trial it could be expected that the defense will take every opportunity to cast their client as worthy of the jury’s mercy.
“If this case does goes to trial that will probably be the major issue.” Said a lawyer. “And you can pretty much bet that every thing the defense does will be one way or another an attempt to put Patten in a positive light. They could also try to denigrate the victim. Not outright but subtly. Maybe try to portray this as a boyfriend/girl friend fight that got out of hand.”
“He is young and there is a man/woman element in this case,” Ohlson said earlier this month. “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 also be used by the defense to play on the sympathies any future jury should the case go to trial.
Patten’s age could also figure into the case in another way, his juvenile criminal record. While release of that record is forbidden by law, confidential sources have confirmed to the Advocate that Kody Patten what could be an extensive history of violence toward others while a minor.
According to one well place source Patten was just one infraction away from being expelled from West Wendover High School at the time of Costanzo’s murder while another said that his last run in with the law as a minor concluded just a few weeks before he turned 18.