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Jewish World Review Oct. 18, 2000 / 19 Tishrei 5761

Bob Greene

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A courthouse game in which the boy was not included -- COLUMBUS, Ohio | There was a legal game going on in the Franklin County courthouse -- one that virtually all of the prosecutors, criminal defense attorneys and judges apparently knew about.

From what we are told, it was a game that was routinely played on behalf of people serving time in prison. It was a game that had the effect of circumventing the intent of Ohio law -- of accomplishing things on behalf of criminals serving prison terms, things that might not have been possible had the intention of the law been lived up to.

There was no one playing the game on behalf of P.J. Bourgeois, the 3-year-old boy who was tortured and killed by his father, Patrick Bourgeois, and the father's girlfriend, Tracy Lynn Bratton.

In death, as in life, the little boy had no one to speak up for him. So as the courthouse game was played on behalf of his killers -- the game that would result in Bourgeois and Bratton being released from prison early -- no one objected on behalf of the child who had been killed. No one spoke up to say that this was an injustice.

As we have been reporting, Bourgeois and Bratton pleaded guilty to involuntary manslaughter, after prosecutors declined to bring murder charges. Franklin County Common Pleas Court Judge Nodine Miller sentenced them each to 7 to 25 years.

But the prosecutors had made an agreement with Bourgeois and Bratton: They agreed not to oppose "supershock probation" for the killers after one year in prison had been served.

Supershock, under Ohio law, permitted a judge to free a prisoner at any time, without a parole board hearing.

Assistant prosecutor Ed Morgan told us that he agreed not to oppose supershock probation because he thought it was a meaningless concession -- he thought Judge Miller would never grant it to Bourgeois and Bratton. Kirk McVay, Bourgeois' defense attorney, scoffs at that contention; he told us that of course the killers' attorneys planned to try to get their clients out, and of course they hoped to prevail.

Under Ohio law, there was one provision that seemed designed to offer at least some protection for the victims of criminals:

The criminals were allowed to ask a judge for supershock probation -- but they could only ask once.

If a judge turned them down -- if a judge said that a criminal belonged in prison, as sentenced -- then that was it. No more motions for supershock probation were allowed -- the prison sentence would stand.

Which is where the courthouse game came in.

Even though the law said that a prisoner was permitted only one application for supershock probation, lawyers and judges had, over time, worked out a way to get around that part of the law.

Defense lawyers would say to judges -- off the record, in chambers, in conference rooms, in hallways -- something along the lines of: "I'm thinking of filing for supershock for [name of prisoner]."

And a judge might say: "I don't think it's time for you to file that one."

The lawyer would know that his or her client would be turned down by the judge. So the motion would not be filed -- until such time as the judge gave another off-the-record signal, such as: "I think that's a good idea." Then the lawyer would know that his or her client was almost certain to be granted supershock probation.

This practice, we are told, smoothed the operations of the courthouse -- it avoided unnecessary hearings.

It also served to give prisoners a virtually unlimited number of attempts to get out -- not just the one official attempt the law specified, but infinite informal queries between attorneys and judges.

If only P.J. Bourgeois, in life, had been given so many chances to plead for mercy.

Judge Miller told us that attorneys for Patrick Bourgeois and Tracy Bratton did, indeed, regularly approach her about the advisability of filing for supershock: "Every six months for 3 1/2 years," Judge Miller told us. Because these were always informal conversations, they did not count as the one attempt the killers were allowed by law.

Judge Miller said that, for three years, her position was: "They need to do more time."

But then she was ready to entertain a formal motion for supershock probation on behalf of Tracy Lynn Bratton. The little courthouse game had been played out; the killer was about to win.

On the day Tracy Bratton would end up being released from prison, someone showed up in Judge Miller's courtroom hoping to say something on behalf of the boy. But, as we will report on tomorrow, the judge would not allow that person to speak.

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


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