[B]URLINGTON — A Vermont judge has rejected a bid for a new trial for the man convicted in May of five counts of second-degree murder in a wrong-way crash that killed five teenagers.
In issuing his ruling, Judge Kevin Griffin also unsealed court filings in the case that showed he had two “off-the record” meetings related to the case, one with jurors after they reached their verdict, and another with the attorneys where he reported what jurors told him.
According to the documents made public Monday, which included filings by lawyers for both the prosecution and defense in the case of Steven Bourgoin, some jurors cried during the meeting with the judge and talked about the witnesses they liked and those they didn’t.
Griffin issued his 37-page decision Monday in Chittenden County Superior criminal court in Burlington denying all arguments raised by Bourgoin’s attorneys for a new trial, including rejecting their contention Griffin’s closed door meeting with the jurors was improper.
The case against Bourgoin, formerly of Williston, now moves to a sentencing hearing set for Aug. 26.
“We are obviously disappointed with the decision and plan on raising many of these same issues on appeal after sentencing,” Robert Katims, Bourgoin’s attorney, said in a statement about the judge’s ruling denying the request for a new trial.
Chittenden County State’s Attorney Sarah George could not immediately be reached Monday for comment.
Bourgoin faces up to 20 years to life in prison on each of the five counts of second-degree murder in the deaths of the teenagers in the crash that took place late on the night of Oct. 8, 2016, on Interstate 89 in Williston.
In returning its guilty verdicts in May, the jury did not accept the defense’s contention that Bourgoin was insane at the time of the crash.
Katims had raised several points in his motion for a new trial, including that the prosecution presented “sparse evidence” about Bourgoin’s mental state in the hours leading up to the crash.
George, the prosecutor, countered that the evidence “sufficiently and fairly” supported the jury’s guilty verdicts.
Griffin rejected all of the defense arguments in his Monday ruling.
Griffin wrote that “taking the evidence in the light most favorable to the State and excluding modifying evidence, a reasonable jury would be justified in finding Defendant guilty beyond a reasonable doubt.”
Griffin wrote that Bourgoin’s defense did not meet his burden as to the insanity defense by a preponderance of the evidence.
During the trial, Katims argued to the jury that his client was insane at the time of the crash, pointing to defense witnesses who testified the 38-year-old believed he was on a top-secret government mission, getting messages through devices, such as his computer and his pickup truck’s radio.
“He’s confused, he’s psychotic, he’s delusional,” Katims said of Bourgoin in his closing argument to the jury.
Prosecutors argued that Bourgoin’s actions were intentional, fueled by anger over his financial struggles and a child custody dispute with his ex-girlfriend.
Killed in the crash were Eli Brookens, 16, of Waterbury; Janie Chase Cozzi, 15, of Fayston; Liam Hale, 16, of Fayston; and Mary Harris and Cyrus Zschau, both 16, and both from Moretown.
No longer under seal
In addition to denying the motion for a new trial Monday, Griffin said a motion filed by the defense under seal, as well as the prosecution’s response, also filed under seal, would be unsealed and become part of the case file.
Those records, which had been kept under wraps until Monday, included a separate motion for a new trial filed by Bourgoin’s attorneys, Katims and co-counsel Sara Puls, and a response submitted by Chittenden County Deputy State’s Attorney Susan Hardin for the prosecution.
In an 18-page defense filing, Bourgoin’s attorneys wrote that on May 22, after the jury returned the guilty verdicts, the judge met with jurors “outside the presence of the parties and off the record” at the courthouse to “debrief” them about the case.
Katims and Puls wrote they weren’t notified of that meeting. A week later, on May 29, Hardin emailed the defense counsel stating, “Judge Griffin told me he would be happy to tell us about the debriefing he had with the jurors if we’d like to meet,” the defense motion stated.
The defense attorneys agreed to the meeting, according to their motion, and on June 5 it took place in the conference room at the courthouse. That “off the record” meeting included the judge and attorneys for both the prosecution and defense. Bourgoin did not take part, the filing stated.
The defense wrote in the filing that at the meeting Griffin said he had “debriefed” the jurors after the verdict.
“He was clear that he did not ask them specific questions, but did ask them to share their thoughts with him about the case, in general,” the defense filing stated. “In turn, the jurors shared with him their thoughts, not only generally about their experiences as jurors, but also what they thought about the evidence in the case.”
The defense filing added that Griffin reported that the jurors shared their opinions of various witnesses, what evidence they gave the most weight to, and what ultimately led to their verdict.
Bourgoin’s attorneys wrote that the judge told them that jurors told him they “hated,” or “did not like,” one of the defense’s key witnesses, Dr. David Rosmarin, a forensic psychiatrist from Harvard who testified he found Bourgoin had been insane at the crash.
“They ultimately did not give much weight to his opinion that Mr. Bourgoin was suffering from Bipolar Disease and that due to the disease he was floridly psychotic at the time of the offenses and legally insane,” the defense filing stated Griffin reported jurors told him.
“One of the jurors remarked that, in the middle of his testimony, he wished he could get Dr. Rosmarin to stop talking,” according to the filing.
The jurors also talked about defense witnesses they “loved,” including Dr. Reena Kapoor of the Yale School of Medicine, who also said she believed that Bourgoin was insane at the time of the crash.
“They thought Dr. Kapoor’s testimony ‘cut both ways,’” the defense attorneys wrote Griffin told them. “They thought State’s Attorney Sarah George did a great job of cross examining her and undercutting her reasons for deciding on insanity.”
As for the prosecution’s expert, jurors told Griffin they thought that the testimony of Dr. Paul Cotton, a Burlington-based forensic psychiatrist who testified he did not determine that Bourgoin was insane at the time of the crash, “made sense,” according to the defense motion.
In addition, Griffin reported, according to the defense motion, that jurors put a “lot of weight” on testimony from doctors who treated Bourgoin at the University of Vermont Medical Center in Burlington after the crash.
“The judge also relayed that the jurors thought if Mr. Bourgoin was ‘really’ psychotic, the UVMMC doctors would have seen evidence of this in the week after the crash,” the defense motion stated.
Also, Bourgoin’s attorneys wrote, according to Griffin the jurors believed the accident reconstruction testimony was “somewhat irrelevant.”
“To them,” the defense motion stated Griffin reported, “the fact of the matter was he was driving the wrong way, on the interstate, at high speeds.”
Griffin also told the attorneys that when he met with the jurors some of them were crying, “and not just a little bit,” according to the defense filing, with the judge adding, “the jurors told him to ‘have compassion’ for Mr. Bourgoin in sentencing.”
Bourgoin’s attorneys argued in their filing that a new trial was warranted based on Griffin’s meeting with jurors.
That’s because, the filing stated, such “off the record” conversations outside the presence of the attorneys raise questions of a judge’s impartiality “and whether the jury’s statements and opinions of the evidence permanently taint” the rulings on post-verdict motions and sentencing.
“Without a knowing and voluntary waiver of his right to be present during this critical stage of his proceeding,” the defense motion stated, “the court’s meeting with the jurors off the record and outside of Steven’s presence was fundamentally flawed and constitutes basis to reverse the convictions.”
The defense motion cites the Vermont Code of Judicial Conduct, which states, “A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding, but may express appreciation to jurors for their service to the judicial system and the community.”
Hardin, for the prosecution, countered in her response that the defense had not demonstrated the judge had shown any prejudice as a result of his conversation with the jurors.
“The Court was not on a fact-finding mission when the conversation took place, and no new facts came to life that could be used in deciding post-trial motions and sentencing,” Hardin wrote. “The Jurors simply stated their opinions in that meeting.”
Hardin added that when the attorneys met with Griffin “off the record” without Bourgoin present to discuss what the jurors had told the judge, the defense attorneys did not object or call for the meeting to take place in the courtroom on the record with their client present.
“Near the end of the meeting, defense counsel made a point of complimenting the Court on its handling of the trial, and the State added its compliments as well,” Hardin wrote.
“The State, and presumably the Court, never expected that that chambers meetings — a meeting that was both collegial and educational for the parties — was going to then serve as the basis for a Motion for a New Trial.”
Hardin added the Vermont Code of Judicial Conduct prohibits a judge from meeting with jurors, “ex parte,” or without other parties present, after a verdict.
“Here, the Jurors had already arrived at their verdict,” Hardin wrote. “There was no ‘discussion’ of the merits of the case. The Jurors talked, and the Court listened.”
Hardin added, “It has been a long-standing practice for Vermont judges to meet with jurors post-verdict, and the Defendant has not cited any Vermont cases that prohibit these meetings.”
Griffin, in his ruling, wrote that he rejected that argument that a new trial should be granted based on his post-verdict meeting with jurors, who he added, had already been excused from jury service when that meeting took place.
“Here, the Court did not investigate any evidence about Defendant, nor is the Court adjudicating Defendant’s guilt based on its own investigations,” Griffin wrote. “Defendant’s guilt was decided at a jury trial based on evidence developed independent of this Court,”
He then added, “To the extent the information inadvertently shared by the jurors after they rendered their verdict and were excused from service bears on any matter before the Court, the Court will ignore that information in coming to its ruling, as it is presumed to so do.”
