Reasonable Doubt For The Girl Who Isn’t There

If it was not for an innocent girl’s murder it might  be considered ironic that the same phrase teachers and classmates describe Toni Fratto: “The girl who wasn’t there.” Is the same that could save her from the death penalty if not an acquittal for the killing of Micaela Costanzo.

[media id=13 width=320 height=240]

This weeks DNA test results were just the latest in a ten month investigation that failed to prove or even suggest that Toni Fratto was anyway involved in the actual killing of Mickie Costanzo.

[media id=1 width=320 height=240]

“Imagine yourself on a jury,” said a lawyer familiar with the case. “For about two weeks you have been sitting in the trial listening to the evidence and hearing witnesses about how bad Toni Fratto is. But when you get to the deliberation room what really do you have? There are no witness who saw her with the victim, there is no forensic evidence that ties her to the crime or to the vehicle. Are you going to send that girl to die or even to prison for the rest of her life based solely on her confession? A confession that by the way has been totally discredited?”

“Usually in a death penalty case the issue of guilt is a forgone conclusion and a defense team spends its time doing mitigation,” he continued. “Getting your client life in prison or guilty of a lesser charge is considered winning. In this case they have a really good chance of an out right acquittal. Stuff like that doesn’t happen.”

Despite appeals from her parents and being confronted with evidence that make her  confession improbable, Fratto has consistently stuck to her story that not only was she present at the murder of 16 year old Mickie Costanzo but she dealt the killing blow.

But while Fratto’s defense team has run into a stonewall with their client, sources indicate they have made great strides in subverting the testimony and perhaps the character of the chief witness against Fratto, Kody Patten’s father Kip.

According to his own testimony during Fratto’s preliminary hearing this summer, Kip Patten was the first person his son Kody told that Fratto was in on the murder and it was Kip Patten to whom Toni Fratto originally confessed. It was also Kip Patten who first contacted his son’s lawyers, John Ohlson and Jeffrey Kump about Fratto’s confession and it was Kip patten who actually drove Fratto to their offices to make her formal confession.

The fact that Fratto confessed not to law enforcement but to her boyfriends lawyers was legally significant first and foremost because it effectively prevented her questioning by police.

Once the confession was released in court Fratto had already ‘lawyered up’ and became more or less off limits to police detectives.

According to sources Kip Patten’s account on the witness stand as to just how Fratto’s confession came about has been seriously undermined.

Fratto and boyfriend Kody Patten confessed to the murder of Mickie Costanzo but at different times and their statements were at least partially contradictory.

Patten confessed first, three days after the murder and just hours after the Costanzo’s body was found in a ravel pit about three miles west of Wendover.

Patten did not mention Fratto being involved in the crime at all and in fact in a throw away line to detectives interviewing him said he left the crime scene “to go pick up, Toni”. Fratto had been attending a meeting of the West Wendover Recreation District where her mother Cassie is a member of the board.

Patten may have told police that he committed the murder within 30 minutes of abducting Micaela “Mickie” Costanzo.

Patten’s time line of the killing is at least superficially at odds with Fratto. In her confession the 19 year old Wendover girl said Costanzo was alive and with Patten  when Patten picked up after the meeting at around 7 pm.

Neither of the two confessed killers admitted that Mickie Costanzo was at any time restrained or bound before they killed her.

Where the two confessions agree is in their portrayal of a panic murder when a verbal argument progressed into a physical shoving match that lead to the actual killing.

In Patten’s confession, the young man instead he dealt the killing blow, shovel blade across the neck after Costanzo went into a seizure after striking her head against a rock. In Fratto’s confession, it is she who kills Costanzo by cutting the unconscious girl’s throat with a folding knife.

The reason for the difference in time lines is quite simple until Fratto’s where abouts are known from 5 pm to 7 pm and she was not with Patten and thus could not have been murdering Costanzo.

From 5 pm to a little before 6 pm Fratto’s alibi is her mother who has insisted on the witness stand that her daughter was with her at their home. According to one of Fratto’s lawyers David Lockie of Elko there may be even more evidence corroborating his clients presence between 5 pm and 6 pm.

According to the minutes of a March 3rd Recreation District meeting Fratto’s whereabouts from 6 pm to 6:53 pm were documented as being in the audience during the meeting.

Fratto explains away the narrow window of opportunity in her confession by claiming that the murder occurred after Patten picked her up around 7 pm after the meeting was adjourned.

She also claimed that Costanzo was in the car with Patten and that the girl was unrestrained. However by 6 pm Mickie Costanzo mother Celia had already begun panicking about her missing daughter. Frighten when her daughter did not answer her cel phone Celia Costanzo began calling Mickie friends and by 6:30 had already notified police. By the time Toni Fratto said her boyfriend was picking her up to commit murder with the victim in the car a full blown search for Mickie Costanzo had already begun by West Wendover Police and dozens of volunteers.

There is also however a curious mention in Fratto’s confession where she mentions a train passing by. The gravel pit where the murder occurred is less than 500 yards north of the Central Pacific rail road tracks and any locomotive passing by would be easily scene. However according to rail road logs there was no train on the tracks when Fratto claims to have been killing Micaela Costanzo.

According to the log of Central Pacific there was no train anywhere near Wendover at the time Fratto claim to have seen it reported a Central Pacific engineer in a subpoena to Fratto’s attorneys.

According to the same source there was a train passing when Kody Patten said the murder took place at around 5 pm.

But despite the obvious holes in Fratto’s confession, if it is allowed in court, jurors may voice the obvious question: Why would she confess to something so horrible if she didn’t do it?

To overcome that resistance Fratto’s defense team may have to attack the sanity of their client.

“Obviously no one in their right mind would confess to a crime they didn’t commit,” said an attorney following the case. “But maybe she isn’t. Let’s say the defense can prove she isn’t or at least that she has an incredibly weak personality and no self esteem. That coupled with the fact that she is a small very plain looking girl who could pass as a 13 year old and not 19 going on 20 could work in her favor.”