Advocate Sues To Release Fratto/Boatman Letter

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Citing the United States Constitution as well as common law the High Desert Advocate formally petition district Judge Dan Papez this week to release a letter written in support of convicted murderer Toni Fratto by West Wendover Justice of the Peace Candidate Brian Boatman.

“Since we learned of the letter’s existence we have made informal requests to the court, to the Parole and Probation department and to Mr. Boatman himself for a copy of the letter,” said Advocate Publisher Howard Copelan. “The court and the parole department refused. Mr. Boatman said he didn’t keep a copy. So now we are doing it the hard way.”

Boatman’s letter along over two dozen others with were submitted by Fratto’s lawyers to District Court Judge Dan Papez as part of Fratto’s pre-sentence report.

In a plea deal this January Fratto agreed to plea guilty to the charge of second degree murder with the use of a deadly weapon and to testify against her boyfriend Kody Patten. Fratto like Patten had been charged with first degree murder for the march 3, 2011 killing of 16 year old Mickie Costanzo and also like her accomplice was facing the death penalty.

The letters were solicited by her parents Claud and Cassie Fratto and were delivered to the court in advance of her sentencing.

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“It wasn’t a leniency letter like a lot of people are saying,” Boatman said in a interview with the Advocate earlier this year. “I just recounted how I knew her by her baby sitting my kids and through church camps. I believe I also wrote she wasn’t a throwaway kid and that I believed she was salvageable.”

“Hopefully, if the court rules in our and the public’s favor we will know if Mr. Boatman was telling the truth concerning the contents of the letter,” Copelan added. “For some voters he crossed the line simply by writing a character reference for a confessed killer others are withholding judgment until the see its contents.”

“I don’t believe he (Boatman) ever used the word leniency,” said a source close to the case who read the letter. “On the other hand these types of letters are sent to the court before sentencing hopefully to influence sentencing. You don’t have to be a genius to know that only the supportive letters are going to forwarded to the judge.”

Of the 26 letters supporting Fratto the vast majority are authored by relatives or long time friends of the Fratto family. Boatman who is now the Juvenile Probation Officer at West Wendover High School is the sole law enforcement officer on the list and as a candidate of Justice of the Peace the only person on the list that can be classified as a “public” person.

It will be the editorial position of the High Desert Advocate not to release the names of the other authors at least for the time being.

Ironically if Boatman overcomes the letter issue and wins the race for judge he would be violating a major judicial canon if he wrote a similar letter.

According to the Nevada Code of Judicial Conduct judges are expressly forbidden to be character witnesses in another judges court.

“R u l e   3 . 3 .     T e s t i f y i n g   a s   a   C h a r a c t e r   W i t n e s s .     A   j u d g e   s h a l l   n o t   t e s t i f y   a s   a   c h a r a c t e r   w i t n e s s   i n   a   j u d i c i a l ,   a d m i n i s t r a t i v e ,   o r   o t h e r   a d j u d i c a t o r y   p r o c e e d i n g   o r   o t h e r w i s e   v o u c h   f o r   t h e   c h a r a c t e r   o f   a   p e r s o n   i n   a   l e g a l   p r o c e e d i n g ,   e x c e p t   w h e n   d u l y   s u m m o n e d .

C O M M E N T

[ 1 ]   A   j u d g e   w h o ,   w i t h o u t   b e i n g   s u b p o e n a e d ,   t e s t i f i e s   a s   a   c h a r a c t e r   w i t n e s s   a b u s e s   t h e   p r e s t i g e   o f   j u d i c i a l   o f f i c e   t o   a d v a n c e   t h e   i n t e r e s t s   o f   a n o t h e r .   S e e   R u l e   1 . 3 .   E x c e p t   i n   u n u s u a l   c i r c u m s t a n c e s   w h e r e   t h e   d e m a n d s   o f   j u s t i c e   r e q u i r e ,   a   j u d g e   s h o u l d   d i s c o u r a g e   a   p a r t y   f r o m   r e q u i r i n g   t h e   j u d g e   t o   t e s t i f y   a s   a   c h a r a c t e r   w i t n e s s .”

“Yes I know that I would be breaking a judicial ethic if I was a judge,” Boatman continued. “But I am not the judge yet.”

COMPLETE TEXT OF ADVOCATE’S MOTION PUBLISHED BELOW

Howard Copelan moves to unseal the character letter (“Boatman Letter”) concerning Ms. Fratto (“Defendant”), written by Mr. Brian Boatman, on the basis of the following points and authorities.

POINTS AND AUTHORITIES

Access to the Letter should be permitted under the First Amendment and Common-Law Rights of Access.

A presumption of public access exists in criminal courts under the First Amendment of the United States Constitution and a common-law right of public access to judicial materials, and therefore the Boatman Letter should be accessible to the public.

In Press-Enter. Co. v. Superior Court of California for Riverside County, the Supreme court of the United States stated, “[O]pen criminal proceedings give assurances of fairness to both the public and the accused . . . .” Press-Enter. Co. v. Superior Court of California for Riverside County, 478 U.S. 1, 9-10 (1986).  The Court goes onto reiterate a statement from Press-Enterprise I, which states that the presumption of open criminal proceedings “may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” Id. (Citing 464 U.S., at 510).  Thus, criminal trials and their materials should be open to the public, unless specific findings can be articulated that preserve higher values in keeping the trial documents sealed.

In United States v. Kott, an  “investigation [was] completed” in a criminal case and documents relating to the case were sealed. United States v. Kott, 135 F. App’x 69, 70-71 (9th Cir. 2005).  Later, an “indictment [was] issued, and [the defendant] entered a guilty plea.” Id.  A member of the media then moved to have some of the sealed documents unsealed on the basis that the public could not evaluate the government’s investigation of the defendant without the documents. Id.  The trial court found that this was a legitimate need, and ruled that the documents should be unsealed under the First Amendment right to access. Id.  

The issue was then appealed to the Ninth Circuit. Id.  There, the defendant argued that there were “overriding interests to his reputation and privacy, as well as to the reputation and privacy of third-parties named in the sealed documents.”  Id.  In response, the court stated, “Our circuit has ‘long recognized the public’s and the media’s common-law right to inspect and copy judicial records and documents.’” Id. (citing Valley Broad. Co. v. U.S. Dist. Ct., 798 F.2d 1289, 1293 (9th Cir.1986)).  “[C]ase law supports the district court’s favoring of the public’s common law right of access to search warrant materials and the indictment over [defendant]’s reputational concerns.” Id.  The court also noted that “reputational concerns typically do not provide sufficient reason ‘for suppressing speech that would otherwise be free.’” Id. (citing McClatchy Newspapers, Inc. v. U.S. Dist. Ct., 288 F.3d 369, 374 (9th Cir.2002)).  Thus, the court “conclude[d] that a common law right of access applie[d] to” the documents, and that it was not necessary for the court to even consider the First Amendment right to access because the common-law right applied. Id.

Further, under Nevada Supreme Court adopted Rule 6 “evidence [is] presumed to be public . . . subject to public disclosure.” NV ST S CT REV Rule 6.  Again, this presumption can only be overcome “if a Judge finds and articulates with specificity, upon performing a balancing test, that there exists a countervailing interest in limiting public access. The order sealing or redacting must be as narrowly tailored as possible.” Id.

Here, the presumption that the Boatman Letter should be accessible to the public exists, and therefore the Boatman Letter should be unsealed.  It is unlikely that there is an “overriding interest” based on “higher values,” which would give this Court the authority to override the First Amendment and common-law presumptions of public access to seal the Boatman Letter.  The Boatman Letter is only a character letter, and is unlikely to contain any information that, if made public, would prejudice any of the parties.

Moreover, Mr. Boatman is running for an elected public office in the state of Nevada, and consequently voters should have access to information about Mr. Boatman in considering whom they should vote.  It is important that voters have an opportunity to weigh and assess Mr. Boatman’s actions and character.  A document such as the Boatman Letter, which is already presumed to be publicly accessible, should not be sealed from public access under a general seal of all documents in this case.  Any arguments of “reputation concerns” on the part of any individuals concerning the release of the Boatman Letter should not override the common-law right of public access. Kott, 135 F. App’x at 70-71.  Thus, the Boatman Letter should be accessible to the general public, and specifically to voters considering Mr. Boatman as a candidate.

Additionally, members of the media have a duty to investigate issues of public concern, and make all available, pertinent information available to the public.  An election is of public concern, and as such, information related to the candidates involved should be thoroughly investigated by members of the media and reported to the public.  The Boatman Letter is likely to contain information that would help voters determine for whom they should cast their votes.  Thus, this motion should be granted, and the Boatman Letter should likewise be unsealed.

Lastly, a general seal cannot be made over all court documents.  If documents are sealed, they must undergo “a balancing test” before sealing, and then the order sealing any documents must be as “narrowly tailored as possible.” NV ST S CT REV Rule 6.  No narrowly tailored grounds exist upon which the Boatman Letter should be sealed.  Consequently, the seal should be removed from the Boatman Letter under the presumption of public access under the United States Constitution and the common-law principle of right to access.

WHEREFORE, Howard Copelan requests that;

The Court unseal the Boatman Letter;

If the Court finds that the Boatman Letter should be sealed, articulate with specificity, upon performing a balancing test, that there exists a countervailing interest—as narrowly tailored as possible—in limiting public access;

The Court order such further relief as the Court deems just and proper under the circumstances.

Dated:  [DATE], 2012 Respectfully submitted,

HOWARD COPELAN

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Howard Copelan