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The change of plea hearing that would have made admitted killer Kody Patten the star witness for the prosecution against girlfriend Toni Fratto was canceled at the 11th hour Wednesday morning.
Both Patten and Fratto have confessed to the brutal murder of 16 year old Micaela “Mickie” Costanzo last March.
Despite the confessions both have pled not guilty to the crime after Elko District Attorney announced that he would be seeking the death penalty for both West Wendover teens. Fratto’s trial is scheduled to begin in late February with Patten’s following a month later.
The announcement of Patten’s change of plea came late Friday morning with the tentative acceptance of the District Attorney’s plea bargain by Patten and his attorneys John Ohlson of Reno of Jeffrey Kump of Elko.
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While most details of the deal are not known it most certainly included the dropping of the death penalty and Patten’s promise to testify against his girl friend. Just what else the deal contained depended largely on Torvinen’s generosity and on his desire to convict Toni Fratto and possibly put her on death row.
Torvinen also probably offered Patten the possibility of parole if he accepted the deal and perhaps dropping the charge of first degree to second degree murder. According to statistics most convicted murderers served between 15 and 25 years behind bars before they are paroled, meaning that if the now 19 year old Kody Patten kept his nose more or less clean while in prison he would leave a still relatively young man.
The announcement of the change in plea came perhaps coincidentally with the filing of the motion by Fratto’s attorneys to throw her confession out.
The motion filed last Wednesday in Elko District Court expands on points originally made in response to a motion in limine made by Elko District Attorney Marc Torvinen last summer before Fratto’s preliminary hearing in Elko Justice Court.
Torvinen’s motion was a successful 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 on April 22, 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.
While the confession was allowed for the purposes of the preliminary hearing, its admissibility on the District Court level is a whole new ball game.
Where the outcome of a preliminary hearing is heavily weighted to the prosecution the playing field is much more level at the trial stage, and it is not unusual that some evidence presented during the hearing is thrown out before trial.
Fratto’s attorneys stress two major points in their motion. The first being that Fratto confession was protected by attorney client privilege and as such cannot be used against her. The second that without the confession the state has literally no other evidence linking her to the crime.
If the confession is thrown out for whatever reason the only evidence the state has against Fratto is the testimony of Patten’s father Kip which could be excluded or at least diminished as hearsay.
According to sources close to the case Kip Patten credibility is expected to be shattered by Fratto’s lawyers should he make it to the witness stand. Those sources add that Fratto’s defense team have assembled volumes of interviews and records that strongly suggest that Kip Patten has engaged in dishonest and violent or potentially violent behavior in the past.
“If Kip testifies, I don’t think anyone will have a problem in at least entertaining the idea that he coerced Toni to confess.” Said a source close to the investigation “We aren’t worried about Kip at all. No one will find him credible after the defense is done with him.”
That opinion of Kip Patten is also shared in the DA’s office sources contend and that may explain why the plea bargain was offered to Kody Patten in the first place.
If Toni Fratto’s confession is tossed, Kody Patten’s testimony against his girlfriend may be the strongest piece of evidence against the girl.
Ever since Fratto’s bombshell confession, Patten’s lawyers have contended the girl was some sort of criminal master mind who meticulously planned the brutal killing of Mickie Costanzo down to the minute and also enthralled Kody Patten to not only help her but also take the rap and face lethal injection all by himself.
And there is little doubt that had Patten taken the plea bargain he would have portrayed his girlfriend as just that kind of fiend.
Friends, teachers and other people who know the girl paint a vastly different picture. Far from an evil genius Toni Fratto is described as a mouse of a girl who if not for mandatory attendance being taken no one would know whether she was in school or not.
She was so completely dominated by Patten, friends say, that even when her boyfriend was caught on tape strangling her just two months before the Costanzo murder, fratto successfully persuaded school officials, her parents, and law enforcement not to bring charges against her lover by adamantly refusing to testify.
Instead Patten was put on in school probation, a probation he was still on when he killed Mickie Costanzo.
In addition to supporting her lover after he tried to strangle her, Fratto, according to sources has steadfastly refused to recant her confession even though there is very real doubt it is completely made up.
“There are enough holes in that thing to drive a semi through,” said a source close to the case. “There is simply no physical way she could have killed Mickie Costanzo when she said she did and walk away from the crime seen without leaving a drop of blood a follicle of hair or a foot print.”
Just why did Patten first a agreed to and then change his mind about testifying against the girl who literally put her life on the line for him is unknown.
“Perhaps he thinks he can get an even better deal if her confession is thrown out,” speculated one attorney familiar with the case. “Or maybe he doesn’t want to be labeled a snitch even before he gets to prison. He is young and strong and probably has a real good chance of being recruited into a prison gang as a soldier. But if he goes in as a snitch that might be a little different.”
Glad to know he will still be facing the possibility of death!!!