DA To Deal On Fratto?

Despite his “victory” in the courtroom Thursday, Elko District Attorney Marc Torvinen may be reaching out to attorneys representing Toni Fratto on a possible deal to reduce the “Murder One” charge against the Wendover teen for the killing of 16 year old Micaela Costanzo, according to sources close to the case.

As expected Elko Justice of the Peace Al Kacin bond Fratto over to trial Thursday after a two-day preliminary hearing.

Unlike trials preliminary hearings are weighted for the prosecution. The rules of evidence are much looser, most hearsay evidence is allowed and the burden for the prosecution is not to prove guilt but to convince the judge there is enough evidence against the accused to warrant a trial.

Torvinen met those admittedly low standards very easily by present Fratto’s audio confession to the crime.

But apart from that confession given not to police but rather to attorneys representing her lover and codefendant Kody Patten, there was very little if any evidence linking Fratto to the murder and not a small amount of circumstantial evidence that contradicted Fratto’s assertion that she cut the throat of Mickey Costanzo.

Instead it was her lover, Kody Patten who was linked again and again and again to the killing of West Wendover High student Mickey Costanzo.

Patten was implicated by witness after witness and one of the few mentions of Fratto came only from Wendy Murphy the owner of the White SUV used to transport Costanzo to the murder scene.

Murphy testified that she loaned her vehicle to Patten earlier that day because he said he needed to move some wood and metal from school. He was supposed to return the vehicle by 5 p.m. But by 5:45 p.m., Murphy, who needed to get to her son’s basketball game, texted Patten to ask where he was.

“He said he was not finished,” Murphy recalled. “He said, ‘I’m still moving things.’”

It wasn’t until 8:45 p.m. that Patten returned with Murphy’s vehicle. By that time, he had Fratto with him.

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.

“This was almost the perfect murder case, really cut and dried,” said a source close to the investigation. “There was a mountain of evidence against Patten; forensic and digital recordings, there was his confession and all the supporting facts. Then Toni Fratto walks in and everything blows up.”

The hearing did shed more light on just how the confession was achieved and on the crucial role Kip Patten played.

A Tangled Web?

Already a key player in getting his son to confess to the crime the elder Patten played if anything an even larger role in Fratto’s confession.

From the witness stand the elder Patten recounted how Fratto accompanied him and his wife at least once a week for six weeks on the four hour round trip to the Elko County Jail to visit Kody.

Patten also related that he and his son, aware that conversations could be recorded, communicated by either writing notes and holding them up to separation window or by the elder Patten holding up texts on his cel phone.

In that manner the elder Patten said his son first implicated Fratto on April 13, more than a month after the murder.

When confronted Patten testified Fratto confessed, but instead of going to the police the elder Patten waited three days and then drove Fratto to the offices of Jeffrey Kump one of his son’s attorney where her confession was recorded.

While Kacin three weeks earlier ruled that the confession could be presented as evidence in Fratto’s prelim, legal sources close to the case question if a jury will ever hear it.

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.

It is clear from the confession played during the preliminary hearing that whether lying or not Fratto motive in making it was 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.

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.

Springgate and Lockie also allege that Kip Patten played a much larger role than the chauffeur in taking Fratto to visit his son or in making the infamous audio tape.

Fratto’s confession had huge implications not only for the defense but also for the prosecution. By admitting to the planning and the killing of her schoolmate Fratto not only became a codefendant in the crime but also the lead defendant.

Kody Patten had been looking at a possible death sentence if he and he alone was found guilty of the crime. Now with both his girl friend and his own protestations that he was simply following orders the odds of him winding up on death row have diminished considerably.

In fact Fratto may have saved Patten from a Murder #1 conviction altogether. If she maintains her insistence that she was the black widow in the crime, Patten could reasonably charged with second degree murder. The difference between facing the death penalty or life in prison without parole to a 25 year sentence with the possibility of parole after 10 years served.

But while her lover’s future was made brighter by her confession, Fratto herself could be looking at a death sentence herself or much more probable a life sentence in prison. Never in Nevada history has a jury sentenced an 18 year old girl to die.

Whether Patten gets a much lighter sentence or Fratto spends the rest of her life in prison depends largely on if Fratto sticks to her confession.

Although her attorneys refuse to comment on just what she is telling them, their efforts in at least establishing her alibi could indicate she is not as ready to sacrifice herself for Paten as she was on April 22.

“The longer she is kept away from him the less and less, she will stick to that ridiculous story,” said a friend of the girl.

Before she made her confession Fratto was in almost daily contact with Patten. Fratto visited him as often as twice a week making the four hour round trip to Elko on Wednesdays and Sunday ever since Patten was arrested March 7th.

She also talked to him at least once a day. The frequent and continued contact the girl had with Patten also undermines the police report that claims Fratto knew details about the case that were not released to the public. Her attorneys can easily make the case that she knew those details not because she participated in the killing but because Patten told her.

Far from the black widow who directed Patten to kill a romantic or social rival, friends and acquaintances of both Fratto and Patten describe her as a mouse of a girl who was “barely there”.

Even with the confession several observers in the courtroom expressed doubt that a jury would convict the girl for the murder.

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Investigators admitted that there was not a scintilla of evidence putting her at the scene of the crime at the time it was said to have occurred.

“There isn’t a foot print, there isn’t a finger print, there isn’t any trace of her at the murder scene,” said one investigator. “This is the damnedest case I have ever seen.”

The lack of any physical, forensic or even circumstantial evidence linking fratto to the murder could be behind Torvinen’s alleged reaching out to Fratto’s lawyers.

“Marc isn’t stupid and he is a man of integrity,” said a source close to the case. “If he doesn’t think there is enough here to convict then he won’t go forward.”

In a related development sources inform the Advocate that Fratto’s attorneys will petition the court for a complete psychiatric evaluation of the girl.

Such a move is not unexpected in murder trials, Kody Patten also underwent an evaluation. But a psychiatric evaluation of Fratto is it finds that the girls has an especially malleable personality could also be used by her defense to explain why she made the confession, if it allowed to be heard by the jury.

The Advocate has also learned that her defense team is considering taking the extremely unusual step of having Fratto testify if the case goes to trial.

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“It really doesn’t matter what she says,” said a source close to the case. “Just five minutes on the stand and no one will believe her. Normally that wouldn’t be a good thing but in this case where the only thing against her is her own statements then attacking her credibility might be a good strategy for the defense. If they can suggest that she is mentally unbalanced that might be even better.”