Jewish World Review Oct. 18, 2000 / 19 Tishrei 5761
A courthouse game in
which the boy was not
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
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
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
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
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
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
JWR contributor Bob Greene is a novelist and columnist. Send your comments to him by clicking here.
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