Having avoided facing a murder charge, Patrick Bourgeois and his girlfriend, Tracy Lynn Bratton, sent word through their defense attorneys to Franklin County prosecutors that they would be willing to plead guilty to the lower count of involuntary manslaughter that they faced.
They appeared to have little choice. The evidence of their roles in the killing of Bourgeois’ son, P.J., who was 3 years old, was overwhelming. P.J. had been beaten, bitten, tied up and left to choke on his own blood. The child was dead, and Bourgeois and Bratton had killed him — but prosecutors, uncertain that they would be able to prove the intent to kill the boy, had decided to go with the lower involuntary manslaughter charge.
A murder conviction could have sent Bourgeois and Bratton to prison for life. Involuntary manslaughter would give them significantly less time. They were willing to plead guilty, and face a sentence from Franklin County Common Pleas Court Judge Nodine Miller. Prosecutors agreed to drop the other charges — felonious assault, endangering a child, and kidnapping (which referred to the restraint of the boy when his legs and wrists were bound with tape).
There was one more thing that Bourgeois and Bratton wanted:
They wanted Franklin County prosecutors to agree to take no position if, after Bourgeois and Bratton had been in prison for a year, the killers asked Judge Miller for supershock probation.
If you have never heard of supershock probation, you are probably in the majority of the American public.
“It started in the mid-1970s as something called shock probation,” Franklin County Prosecuting Atty. Ron O’Brien told us. “It allowed a judge to put someone in prison, but then, if the judge chose, to allow the person out before 90 days had passed. It was designed to give someone a taste of prison life — and to let that serve as a deterrent, and to free the person, in the hopes that the person would stay out of trouble.”
Sort of a scared-straight program, but real. It seldom was used for prisoners serving long sentences for serious crimes, O’Brien said, because such prisoners did not belong on the streets 90 days after they were convicted.
“But then something was added — something called supershock probation,” O’Brien said. “Supershock probation gave a judge the discretion to let prisoners out who had been in for more than 90 days. The prisoners could be let out at any time — again, on the judge’s own discretion.”
No parole board hearing was necessary. Even if the criminals had not served enough time in prison to ask for a parole hearing, a judge had the power to grant supershock probation.
And Bourgeois and Bratton, in exchange for their willingness to plead guilty, wanted that from Franklin County prosecutors: They wanted a promise that, after a year in prison, they could ask Judge Miller for supershock probation, and the prosecutors would not object.
The prosecutors said “yes.”
“They said that we should give them something in exchange for the guilty plea,” assistant prosecutor Ed Morgan, who was assigned to the case, told us.
There is some disagreement on exactly what the prosecution said “yes” to. O’Brien told us that prosecution notes show that his office agreed not to object to supershock probation for Tracy Lynn Bratton, but that there is no notation of such an agreement about Patrick Bourgeois. Ed Morgan told us he can’t specifically recall. Patrick Bourgeois’ defense attorney, Kirk McVay, and Judge Miller herself told us that they are certain Bourgeois was included in the agreement.
Morgan told us that he agreed not to object because he believed it was a meaningless concession: “I’m certain that I thought no judge would ever grant [Bourgeois and Bratton] supershock probation. Our not objecting didn’t mean they were going to get out — the judge could keep them in prison whether we objected or not. It’s not up to us — it’s up to the judge.”
All of this legal maneuvering began almost as soon as P.J. Bourgeois was killed. The wheels were put in motion to carefully protect every right of his killers.
Meanwhile, the boy faced his final, obscene indignity even after his death. For five entire months — as Bourgeois and Bratton worked on their defense — that child went unburied. He was given no funeral; he had no visitors. His body remained stored in a bag in a cooling compartment at the Franklin County morgue.
On Wednesday we will report on how this was allowed to happen.