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Jewish World Review Oct. 30, 2000 / 1 Mar-Cheshvan 5761

Bob Greene

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THE KILLER LEARNS 'ANGER MANAGEMENT' AND IS FREED -- COLUMBUS, Ohio | Ohio Franklin County Common Pleas Court Judge Nodine Miller might as well have used a Xerox machine as she ordered Patrick Bourgeois released early from the prison sentence he was serving for torturing and killing his 3-year-old son.

Judge Miller, in ordering Bourgeois released, used almost exactly the same words she had used eight months earlier to release the other killer, Bourgeois' girlfriend, Tracy Lynn Bratton.

Bourgeois was being released from prison, the judge wrote, because "[the] public does not need to be protected from [him]." The "dramatic event in February, 1996" (that is how the judge referred to the killing of P.J. Bourgeois) was "fraught with ignorance, immaturity and inexperience, more than malevolence."

Once again, as she had done in releasing Tracy Bratton, the judge reasoned that the very nature of what Bourgeois did to the child, who weighed 34 pounds -- the beating, the biting into the boy's flesh, the taping of his legs together and his wrists behind his back before leaving him to choke to death on his own blood -- was in her opinion a good argument in favor of Bourgeois' release: "These particular circumstances were so aberrant, it is hard to conceive of such a replay in Bourgeois' lifetime."

Thus, what Bourgeois did, the judge concluded, was so terrible that she could not imagine him doing it again.

Judge Miller also -- as she had done in releasing Bratton -- appeared to place blame on the dead child for somehow helping to bring about his own killing.

Although she had heard not a word of sworn testimony in the case, the judge described P.J. as "a difficult child whom [Bourgeois' girlfriend] could not control." She wrote that P.J. "began misbehaving on Feb. 27, 1996," which led to the events that would result in his death.

Judge Miller relied only on the killers' own accounts of the child's behavior (as if any behavior by a 3-year-old could justify his being tortured and killed). Relatives of the boy in Lewistown, Pa., have said that P.J. was a quiet and friendly child, but his killers' descriptions of him are what were relied on in the Franklin County courts. Judge Miller also, without hearing any testimony or having any witnesses cross-examined, accepted Bourgeois' claim that he had attempted to get help for P.J.'s alleged behavior problems, but could not until he could secure authorization from an unnamed insurance company (as if that, too, would constitute mitigating circumstances for the torture and killing of the boy).

The judge praised Bourgeois for doing well in school courses while in prison, for completing courses in "anger management, victims awareness [and] stress management," and for being "sincerely remorseful."

What did the opposing side have to say about this -- how did the prosecutors respond to the judge's acceptance of Bourgeois' request to be let out of prison before he even would have been eligible to appear before a parole board?

They didn't -- the prosecutors made it easy for Bourgeois to walk free, because, as we have reported, they did not respond to his motion in any way. Franklin County prosecutors told us that they never saw Bourgeois' motion asking to be released -- evidently they misplaced it in their office.

The "supershock probation" law that allowed a judge to release a prisoner early on the judge's own authority, without a parole board hearing, contained a clause intended to protect victims of crime. Yes, a criminal could apply from prison for supershock, the law said -- but only once. If a criminal applied and was turned down by a judge, the entire sentence must be served.

But, as we have reported, in the Franklin County courthouse that clause (which has since been eliminated from the law) was routinely winked at. Lawyers would ask judges informally whether it was a good time to apply for supershock for a client; if a judge indicated "not now," the attorney would wait. Only when the attorney got a signal from a judge that the proper time had come would the formal application for supershock be filed. The result was that, in practice, some prisoners got virtually unlimited attempts at supershock, not the one formal attempt the law had intended.

That's what happened with Tracy Bratton, and that's what happened with Patrick Bourgeois. Bourgeois' attorney, Kirk McVay, told us that he repeatedly tested the waters with Judge Miller in an effort to get his client released. Judge Miller told us that Bourgeois' attorney "was really bent out of shape when I let [Bratton] out and not [Bourgeois]."

But, 3 years and 10 months after being sent to prison, Bourgeois was released.

We requested, through attorney McVay, to speak with Bourgeois. McVay told us that Bourgeois declined.

About the torture of P.J. Bourgeois, McVay said: "I would submit that there was no intent to kill."

Was justice done?

"That's a tough question," McVay said. "Do I think Judge Miller made the right decision? Yes."

Those who were on the scene and at Children's Hospital on the day P.J. died disagree strongly with McVay. We will report tomorrow.

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


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