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Jewish World Review Oct. 12, 2000 / 13 Tishrei 5761

Bob Greene

Bob Greene
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The prosecutors decide it doesn't qualify as murder -- COLUMBUS, Ohio | It appeared to be, if not an open-and-shut case, at least one in which prosecutors would have absolutely no trouble proving how the victim was killed, and who the killers were.

As we have been reporting, P.J. Bourgeois, 3, had been found dead in the mobile home on the south side of Columbus where he had lived with his father, Patrick Bourgeois, and the father's girlfriend, Tracy Lynn Bratton. The Franklin County Coroner's office had determined that the child had been beaten, had been bitten, then had been tied up and, unable to move, had swallowed his own blood and had choked to death -- had drowned on the blood.

The boy's father had admitted striking and biting him; the girlfriend had admitted biting the boy and helping tape his ankles together and his wrists behind his back.

So how could this have gone so wrong in court? How could, before they even became eligible for a parole board hearing, Bourgeois and Bratton be free and out on the streets, as they are this morning?

Two key decisions -- made by the Franklin County Prosecuting Attorney's office -- made possible what would happen later: the freeing of Bourgeois and Bratton by Franklin County Common Pleas Court Judge Nodine Miller who, saying what Bourgeois and Bratton did in killing the boy was "fraught with ignorance, immaturity and inexperience, more than malevolence," ordered them released from prison.

The first decision came when prosecutors had to determine what crimes with which to charge the suspects. Bourgeois and Bratton could have been charged with aggravated murder, the most serious charge; they could have been charged with murder, next most serious; with voluntary manslaughter, one more step down; or with involuntary manslaughter, the least serious of the four.

They were each charged with involuntary manslaughter.

Franklin County Prosecuting Atty. Ron O'Brien, who was not in office at the time of the crime, said the decision was made because of language in Ohio law that said "intent" had to be proven in cases of murder. There were only three witnesses to the killing of P.J. Bourgeois, and one was dead. To prove Bourgeois and Bratton intended to kill the child, O'Brien said, they would have to testify against each other. And there was no indication they would do that.

So involuntary manslaughter it was. Ed Morgan, head of the criminal division in the prosecutor's office, was confident he could make involuntary manslaughter stick in court. And there were additional charges: felonious assault, endangering a child, kidnapping (because of the restraint of P.J.). Kirk McVay, Patrick Bourgeois' defense attorney, told us, "You could have been talking about a century or more in prison, had they been convicted of everything they were charged with," although he conceded that such a lengthy sentence would have been highly unlikely.

The prosecutors were confident that, even with the relatively low involuntary manslaughter charge they decided upon, they could put Bourgeois and Bratton in prison for a significant number of years -- long enough to be appropriate for what the two had done to that 3-year-old boy. "Proving that they intended to kill [P.J.] might have been very difficult," O'Brien told us. "They did what they did. We know that. But was it their intention for him to die?"

Now, in light of what has happened, O'Brien said he has asked himself whether he wishes prosecutors had taken their chances with a murder charge in front of a jury.

"I don't know," he told us. "I have thought about it quite a bit, and the answer is, I don't know."

The second key decision by prosecutors would come during negotiations with defense attorneys. The defense attorneys -- saying Bourgeois and Bratton were willing to plead guilty to involuntary manslaughter -- asked one thing from the prosecutors:

They asked the prosecutors to agree not to take a position on something called "supershock probation" after Bourgeois and Bratton had been in prison for one year.

"[The defense attorneys] said, `Give us something,'" assistant prosecutor Morgan told us.

"I'm certain that I thought no judge would ever grant those two supershock probation, so at the time it didn't seem to mean a lot, agreeing not to object."

It meant more than a lot. We will explain in tomorrow's column.

JWR contributor Bob Greene is a novelist and columnist. Send your comments to him by clicking here.


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