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[I]t took jurors 12 hours to decide that Steven Bourgoin was guilty of second-degree murder in the deaths of five teenagers in a wrong-way crash on I-89.
After deliberation, the 12 members rejected the defense’s case that Bourgoin was experiencing a psychotic episode at the time of the crash. Their decision followed 12 days of arguments about the driver’s mental state, along with two and a half years of pre-trial maneuvering.
Friends and family of the five victims attended every day of the trial. After the verdict, they said they were relieved it had come to an end.
“We’d like it to be about the kids now and no more about Steven Bourgoin,” said Sarah Zschau, the mother of Cyrus Zschau, who was 16 when he was killed in the crash.
Bourgoin was disappointed with the outcome of the trial and plans to return to court, according to his defense attorney, Robert Katims. The appeal will likely go before the Vermont Supreme Court.
On this week’s podcast, VTDigger’s Alan Keays and Aidan Quigley recap the proceedings and discuss what happens next.
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On Wednesday, our reporter Aidan Quigley was at the Chittenden County Superior Courthouse in Burlington, waiting for a verdict in one of the most high profile cases in Vermont’s history.
Aidan Quigley: I was actually about to go downstairs and get some snacks because I was anticipating a later night of jury deliberation. So right when I reach the elevator to hit the down button, I hear a little bit of a commotion back where all the media was waiting outside of the courtroom. I looked down the hallway, and I see an attorney or someone running down the hallway in the other direction. I’m not sure who it was. But things got really tense after that, and all the media rushed into the courtroom. The families came up. We were all sitting outside waiting, and then we were all sitting inside the courtroom, waiting for the verdict.
Judge Kevin Griffin: OK, please be seated.
Quigley: I got the sense that people really didn’t know which it was going to go. Especially since it was a day and a half of deliberations. I think the fact that it took as long as it did to come to a conclusion means that the jury had some very serious questions to work through in the deliberations, which makes sense on a trial of this nature and stature.
Judge Kevin Griffin: So, Mr. Burnett, I did receive your note that the jury has reached a verdict.
Quigley: Eventually the jury comes in and the judge asks, on the count of second degree murder…
Judge Kevin Griffin: The charge involving the second degree murder of Cyrus Zschau. How did the jury find?
Quigley: And then the jury foreman stood up and said ‘guilty.’
Foreman: Charged guilty of second degree murder.
Judge Kevin Griffin: Was that verdict unanimous?
Foreman: Yes.
Quigley: That was kind of the moment when if one of the counts was going to be guilty, all of the second degree murder was going to be guilty.
They read each of the victims names individually?
Quigley: Yeah. On the count of murder of Mary Harris, what do you find? And then the follow-up question would be on the insanity defense that the defense raised.
Judge Kevin Griffin: Did the jury conclude that the defendant had failed to meet his burden of proof with regard to insanity?
Foreman: Yes.
Judge: And was that decision unanimous?
Foreman: Yes.
Judge Kevin Griffin: So say you all?
Jury: Yes.
Quigley: Basically, did you find that he was not able to prove this defense, that Steven Bourgoin was not insane at the time of this crash? And they said that he was not able to prove it. The rest of charges came out, and it was clear that it was going to be what the prosecution was looking for.
Our reporter Alan Keays covered the proceedings. Alan said that even though there are still some unanswered questions, we know much more today than we did at the time of the accident that killed Mary Harris, Liam Hale, Cyrus Zschau, Eli Brookens and Janie Cozzi, and led to the five second-degree murder charges against Steven Bourgoin.
Keays: We knew that there was a wrong way crash that happened on the interstate late at night on October 8 of 2016. Steven Bourgoin, according to police, had been driving the wrong way at the interstate at a high rate of speed when he slammed into a Volkswagen Jetta, a 2004 Volkswagen Jetta, with the five teenagers inside, who were returning from a concert in South Burlington at Higher Ground. We knew that the five teenagers inside the vehicle had been killed, and that Steven Bourgoin had been taken to the hospital with extensive injuries as well.
We also know that he had, at the scene, stolen the police cruiser of the first responding officer, a Williston Police Department member who got out of his cruiser at the scene to try and help the teens in their car that had overturned and was on fire. And then Bourgoin took that cruiser, fled southbound on the interstate going the right way, the correct way, and then turned around and came back after going a very short distance, driving at over 100 miles an hour, and slamming back into his pickup truck that he had been driving earlier, that was in the earlier crash, as well as several other vehicles, injuring other people who had kind of come upon the scene and had pulled over to the side of the road, and injuring some of those folks as well.
And can you describe what the scale of this event was? I mean, it sounds like the kind of thing that was fairly unusual for Vermont.
Keays: I think it’s the the highest number of murder counts in one case in the history of Vermont.
That was about two and a half years ago. How did we get to this trial that started a couple weeks ago?
Keays: There’s been many motions and court filings over the last two and a half years. Some of the most significant have included, there was a motion for a change of venue, because the case had received so much media attention in Vermont that the defense had moved for a change of venue to move it out of Chittenden County, which — the crash took place in Williston. Ultimately the judge decided that the case had received so much media attention statewide that it would make not all that much difference. Because the coverage had been pretty extensive. So the trial did take place in in Chittenden County.
They had set aside quite a long time for jury selection in the case. That took place at the end of April and into the beginning of May. And it only took three days to empanel the jury, which is I think was quicker than a lot of people thought.
Why did they think it was going to take a long time?
Keays: Just because of the extensive coverage that the case had received. That to get a fair and impartial jury who hadn’t either heard about the case and formed opinions about it, or would be fair and impartial on the matter.
Judge Kevin Griffin: We’re here on the record in the cases involving Steven Bourgoin, specifically Dockets 3814-1016 and 3798-1016.
What general cases did the prosecution and the defense lay out at the beginning of the trial?
Keays: The prosecution case, the opening days, was kind of setting the scene about what happened the night of the crash.
Chittenden County Deputy State’s Attorney Susan Hardin: The defendant stayed in the passing lane for over 2.2 miles and as he sped North, the wrong way, there was a VW Jetta coming South on 89 in the travel lane, carrying five young people.
Keays: The defense case was pretty much that Steven Bourgoin was insane at the time. That was their argument. They did not contest that it was him behind the wheel of the pickup truck that crashed into the teen’s car driving the wrong way. And they did not contest that it was him who took the Williston Police officer’s vehicle.
Robert Katims, defense attorney: This trial, however, it’s not about whether or not Steven Bourgoin drove his truck the wrong way on 89 and hit the Jetta and killed them. He did. That’s the hard truth. This trial is about why it happened. What was going on in Steven Bourgoin’s head on that tragic night back in October 2016? Why in the world would he do such a thing?
Keays: They said that he was insane at the time. And they had an expert, a defense expert, that they had hired who had issued that opinion, concluded that. And they also had the prosecution’s former expert, who had also determined or concluded that Mr. Bourgoin was insane at the time of the crash.
Robert Katims: The evidence will be that Steven Bourgoin was totally psychotic, delusional at the time of the crash. The evidence will be that he was, in every sense, insane at the time of the crash. All the evidence points to that conclusion.
Keays: The prosecution countered that they believed he was not insane at the time, and they had their own expert who said that he was sane. And they pointed to the fact that their expert had examined Steven Bourgoin about six weeks after the incident, as opposed to the two other experts who examined Bourgoin several months after the incident.
Susan Hardin: Dr. Cotton will tell you that in his opinion, the defendant was sane at the time of the events.
Keays: So they argued to the jury that his was more of a contemporaneous review of, or examination of, Bourgoin in that it was more relevant.
What’s the significance of this insanity question? Why was that the main topic of discussion in those statements?
Keays: Well, I think it was because the defense did not challenge the facts of the case about who was behind the wheel of the car at the time. And they did not argue that there was a problem with the vehicle or anything to that effect. So it just came down to his state of mind.
So if the jury were to find him insane, then he wouldn’t be guilty of these second degree murder charges?
Keays: Correct. He would be found not guilty by reason of insanity, or not criminally responsible for the charges that he faced. And then there would have been a process where the court would have determined what type of care he would have needed in the future, which could range anything from being released to needing care for a substantial period of time at a psychiatric facility.
So tell me about the opening days of the trial.
Keays: It was the people who had come upon the crash who were the first witnesses to testify, the motorists who are on the interstate that night, traveling south on Interstate 89 in Williston. And they described a scene that — they turned to words like a “war zone” or “Armageddon” to describe what they had seen.
Keith Porter: It was horrible. I felt like there were many things on fire. There were people screaming. I assume that there were many people injured or killed. It was — it was like a war zone. I mean, I say that not actually having gone to one, I’m not trying to say that lightly, but it was incredibly disturbing.
Keays: Both in the the wreckage of the initial crash, as well as the scene of Bourgoin driving back to the crash site in the cruiser and slamming into his pickup truck that had been left behind, as well as the other vehicles.
Keith Porter: I can hear the engine, the loud whack of metal hitting metal, and I see a car going up in the air towards me. That’s all I could, and then from there, I just remember diving and I didn’t see, I wasn’t able to watch it as it came closer to me.
Keays: There was a gentleman from Montpelier who was, I believe, the first person on the scene. He talked about getting out of his car and using his cell phone flashlight to help warn other cars of the crash. And he also talked about seeing Steven Bourgoin at the crash scene. And he mentioned that the one thing that Steven Bourgoin told him at the crash scene was that he had just simply lost control. And that was one of the few statements we had from Bourgoin, from a witness at the scene who he talked to at the crash site.
Some of the witnesses talked about being in their cars and seeing Bourgoin driving up on the scene and just leaning over into the passenger seat from the driver’s seat and not thinking they were going to survive. At least one person talked about bailing out of her car and going up into the woods on the side and thinking that she had actually been killed.
Witness: After a long time of sitting there holding on that tree and crying, I went down quickly once. I didn’t look I just wanted to get my coat, I was getting cold. And then I went back up, and then I heard some more noises and more people screaming. And I could see people running and screaming and ducking in front of my car. They were hiding from whatever was exploding on the cruiser.
Can you tell me a little bit more about what some of the first responders talked about?
Keays: The police officers who responded to the scene, I mean, it was very late at night, so that the first officer who responded, a Williston police officer, Eric Shepard, talked about trying to open the door of the Jetta that had the teens inside. He frantically tried to open the door, was knocking on the windows to try to get the teens’ attention, but they had been too severely injured and the vehicles was on fire. And he talked about trying to open the doors and handles, and the vehicle was just so hot from the fire that he could not open them.
State’s Attorney Sarah George: And did you attempt to extinguish the fire?
Shepard: I did. I started right at the engine, the source, trying to knock everything out with a fire extinguisher.
George: And were you successful?
Shepard: No, it’s very tough to knock out a vehicle fire with a smallish fire extinguisher unfortunately.
Keays: There were other responders who talked about coming upon the scene and like the other people, they talked about it being a war zone with so many cars being damaged and the fires that they were seeing.
George: Now what did you observe?
Williston Police Sgt. Brian Claffy: There was a lot more debris, quite honestly it looked like a bomb went off, or a war zone. I was kind of in shock at what happened, but there was more victims now that we had injured, there was a car on its side in the ditch off this low passing lane, but it was in the ditch on that side with somebody inside of it.
Keays: They had dash cam videos of Bourgoin driving the Williston police cruiser after he took it.
George: So when you saw that your blue lights changed indicating that your vehicle was moving, what did you do?
Shepard: I asked ‘who has my car?’
George: OK, and again, how did you know that somebody had your car?
Shepard: Because it was creeping slowly and the lights had changed. And I kind of made a sound like ‘hah’ thinking, oh, man, I left my car in Drive for a second, and this is not the time for that.
George: Right. And did anybody respond to you asking who had your car?
Shepard: No, and I said it again, and no response.
George: And so what happened next?
Shepard: The vehicle picked up pace, at which point I realized somebody had stolen my vehicle.
Shepard [on recording]: Who has my car? Who has my car?
Keays: It was kind of an eerie scene because it was very quiet and there’s no other cars on the road. It was just driving down the road for a couple miles with no sound except the engine. As he got up to the next exit in Richmond, there was a police officer in the turnaround area and had flashing blue lights waiting to intercept him, and right around that point is where Bourgoin turned around on the interstate and started heading north in the southbound lane back to the crash.
And you’re seeing all this happen.
Keays: Yeah. You’re seeing all of this happen. As he gets back to the crash site, as he’s driving back north in the southbound lane on the interstate headed back to the crash scene, you can see him dodging cars, or at least passing cars, who had been pulled over on the side of the road, seeing him coming at them. And you also see as he approaches the crash site, the engine of the car, really, the cruiser, really starts to thunder and picks up speed as he gets over 100 miles an hour. And you see the glow of the scene. It’s like all these lights going on from emergency lights to car vehicles. And it gets up to like, the 0.3 seconds of the crash, where he slams into his pickup truck, and then the car video stops.
So you don’t actually see the impact of the crash, but you see to the very last moment almost. And you see the car on fire on the side. The Jetta on fire inside of the median and people racing to help.
What was it like watching that video?
Keays: It was very quiet in the courtroom. Even Steven Bourgoin was watching it. He didn’t show any emotion when he was watching it. He seemed to be just taking it all in, as everybody in the courtroom was. There were some members of the families who couldn’t watch it, they were looking down. There were other family members of the victims who were holding hands and hugging each other as the video was playing.
The defense comes up and makes their case. Who do they bring?
Keays: Their case rested largely on the on the two experts, their initial defense psychiatrist Dr. David Rosmarin, who testified that when he examined he did an extensive examination over several days of Mr. Bourgoin, and he found that he wasn’t sane at the time of the crash.
Dr. David Rosmarin: He had bipolar disorder with psychotic features, rapid cycling, meaning a certain number of episodes per year, that was his diagnosis.
Katims: You believe that he lacked adequate capacity to appreciate the criminality of his havoc?
Rosmarin: No.
Keays: The defense had argued that he believed he was on a government mission and over the days leading up to the incident, that he had been receiving signals on his electronic devices like computers, and iPads and cell phone, and even the radio in his car that had been directing him to carry out this top secret mission.
Rosmarin: He did not intend to go the wrong direction and kill people or kill himself. He did not intend that. He was doing the same thing he had been doing for two days, which is driving around frantically, trying to preserve his life, trying to understand what he had to do next to be safe.
The last day was primarily about his safety, were they going to kill him, were they going to kill Izzy? Were they going to burn down his house? He was trying to be safe. And he was in such a state of psychotic frenzy and confusion. And listening to the directions, his inferences from the radio and lights in the environment that this is a simple psychotic error, not an intentional act.
Keays: The other witness who was called after Rosmarin was Dr. Reena Kapoor. She was the expert who was the forensic psychiatrist originally hired by the prosecution to determine that Bourgoin was insane at the time, and when the prosecution dropped her as a result of that, the defense called her as a witness to bolster their case and also bolster Rosmarin’s opinion that Mr. Bourgoin was insane at the time. But she actually had a different diagnosis.
How was it different?
Keays: Her diagnosis was that Bourgoin had a personality disorder. She used the terms “with traits of borderline personality disorder and paranoid disorder.” She said that condition makes a person “predisposed” to becoming psychotic under stress. And the stress in this case was that Mr. Bourgoin, around the time of the incident, had very serious financial troubles, as well as an ongoing custody dispute with his ex-girlfriend and the mother of his child.
Kapoor: Those stressors then triggered a psychotic episode including paranoid ideations.
Keays: The prosecution, to rebut that, called their own defense expert who said that he was sane, and there was lots of testimony about that and how his testimony differed from the previous two from the defense.
Hardin: Was this man in an acute psychotic episode?
Dr. Paul Cotton: Absolutely not.
Hardin: Was he out of touch with reality?
Cotton: Absolutely, not.
Hardin: Was he hallucinating?
Cotton: He was not hallucinating.
Hardin: Was he delusional?
Cotton: He was not delusional.
Tell me about how things wrapped up. How did they come around to closing their arguments before the court?
Keays: There were the closing arguments where the two sides — the prosecution said that, as they had in their opening argument, that he was sane at the time. He knew what he was doing, and he was just upset or in a rage or even suicidal at the time of the crash over the financial difficulties and the custody dispute.
George: The state has proven in each of these charges that Mr. Bourgoin was aware of every decision he made and he ignored the risks of each of those decisions.
Keays: The defense really hit on the insanity defense, and really using the fact that the prosecution’s own expert had determined that Mr. Bourgoin was insane at the time.
Katims: They reviewed all the statements that were sent to them, where people were saying things about Mr. Bourgoin, and they continued to look at that. And in particular, Dr. Kapoor really challenged herself, challenged Mr. Bourgoin with that evidence, and found that the evidence was that he was psychotic at the time. And if he was psychotic at the time, he couldn’t appreciate the criminality of his conduct, and he couldn’t conform his conduct to the requirements of law.
Keays: The jury deliberated for about 11 hours over parts of three days before returning their verdict on Wednesday.
Foreman: We find Steven Bourgoin guilty.
Judge: And was that verdict unanimous?
Foreman: Yes.
Judge: Do the attorneys wish any other polling of the jury?
George: No your honor.
Katims: No your honor.
Aidan, what happens in the moments after the verdict comes down?
Quigley: People file out of the courtroom. The media — the most media that I’ve seen at an event in Vermont, I think it’s safe to say, tons of cameras, tons of print reporters, just waiting outside the courtroom. Sarah George was the first one to come and speak with us.
The prosecutor.
Quigley: The prosecutor, yep. She said, you know, that she felt fantastic about the verdict, and that the jury got it right.
George: The state really did prove beyond a reasonable doubt that this was second degree murder and it was nothing less than that.
Quigley: The defense attorney Robert Katims came over and said that, you know, his his client was disappointed in the result.
Katims: Obviously, we think we presented the overwhelming medical evidence with regard to the sanity issue. And we’re disappointed that the jury found otherwise.
Quigley: And that he was a very different person now, in 2019, than he was at the time of the crash in 2016.
Family members also came over and spoke to the media and really stressed that they were hoping that the focus kind of shifts from Steven Bourgoin to the teenagers themselves who lost their lives.
Sarah Zschau: We’d like it to be about the kids now and no more about Steven Bourgoin. They were beautiful kids.
Mark Johnson, VTDigger: Does the verdict make a difference?
Zschau: It makes me feel that, I mean, you can speak to that too, but what I think is that, at least he’s not going to hurt anybody else’s kids now. And that makes a difference to me.
Susan Hale: At this time, we would ask you to refocus the energy towards the incredible young people whose lives were needlessly, tragically taken from us.
Quigley: This is the end result of an extremely long-term process to get here. The crash was in October 2016. And now it’s May 2019. So it’s been it’s been three years. And Sarah George, the prosecutor, kind of touched on this when afterwards, she thanked the family for their working through this long, drawn out process and getting to a day where, you know, in her eyes, justice was finally served.
Alan, where do we go from here? What are the possible next outcomes?
Keays: Well, there’ll be a series of post-trial motions filed, such as a motion to set aside the verdict or a motion for a judgement or acquittal, basically saying that it’s a miscarriage of justice, there wasn’t enough to sustain the charges that the jury convicted Mr. Bourgoin on. Those motions, I’ve just talked to some experts, they say are rarely, rarely granted, and then it will follow on to sentencing.
Each of the murder counts, there are five murder counts in this case, second degree murder, carry a possible sentence of 20 years to life. So a big issue will be will the judge impose and will the prosecutors seek consecutive sentences, basically stalking one of those on top of the other to get to a sentence as much as 100 years to life? Or will the sentences sought by the prosecution and imposed by the judge be concurrent, which could knock it down to I guess as little as 20 years to life. Following that process, there would be an appeal to the Vermont Supreme Court. And again, talking to the experts today, they say that process could take anywhere from two to three years from today to getting an opinion issued by the Vermont Supreme Court regarding the convictions.
I wonder, just kind of from your own perspective, was this trial in any way different from other trials that you’ve covered in Vermont?
Keays: Well it was certainly much longer than most trials in Vermont. And also the use of, you know, there was dash cam videos that were ready, that really brought people to the scene of what happened. That I think that has a big impact on the on the jury actually seeing Mr. Bourgoin driving their own way, and then returning to the site and seeing the actual crash aftermath. In almost real time.
I just think there was, I mean, there were five teenagers who died in this case. And I just think that the impact of losing five lives in one crash, I think, was obviously very significant.
Thanks, Alan.
Keays: Thanks.
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