An attorney for a Vermont man convicted of five counts of murder contends the trial was flawed and a new one should be ordered because the prosecution did not properly disclose key evidence to the defense.
As a result, says Joshua O’Hara, an appellate public defender representing Steven Bourgoin, his client’s defense team was subject to an “ambushing” when it came to critical testimony.
It could be several months before the court issues a ruling on the appeal.
During the trial in May 2019, Bourgoin’s attorneys claimed he was insane the night of Oct. 8, 2016, when he drove his Toyota Tacoma the wrong way on Interstate 89 in Williston and crashed head-on into a Volkswagen Jetta, killing the five teenagers inside.
Prosecutors disputed the insanity defense, and a jury convicted him on five courts of second-degree murder, plus other charges. He was sentenced to 30 years to life in prison.
O’Hara told the court Thursday that the insanity argument was undermined by the testimony of his former girlfriend, Anila Lawrence.
Lawrence was asked by the prosecutor, Susan Hardin, “Is it correct that the only thing he ever really told you about what happened on Oct. 8 was that there were no wrong-way signs on the highway?”
“Correct,” Lawrence replied.
O’Hara said that testimony aided the prosecution’s theory that Bourgoin was aware of happenings leading up to the crash, though he had contended he did not remember.
“This went directly to the heart of the prosecution’s case,” O’Hara said, “which is that Mr. Bourgoin had been somehow making this up and this undercut his idea or the notion that he lacked a memory of what happened.”
‘The jury was left to marinate’
Robert Katims, Bourgoin’s lead attorney during the trial, had argued for a mistrial at the time of Lawrence’s testimony. Katims told Judge Kevin Griffin that Lawrence’s statement about the signs was the first time he was aware that she had information about a conversation she had with Bourgoin about the crash and the wrong-way signs.
Chittenden County State’s Attorney Sarah George, the lead prosecutor during the trial, disputed that a mistrial was warranted. The prosecutors told the judge that a CD of their pretrial interview with Lawrence had been sent to the defense, and the statement had also been conveyed verbally. Katims said he never received the CD and didn’t recall a conversation with the prosecution.
Griffin rejected the motion for a mistrial, but did grant Katims’ motion that the statement be stricken from the record. The judge told jurors, “That statement will not be part of the evidence.”
In his appeal, O’Hara argued Thursday that ordering the statement stricken from the record was not sufficient.
“Certainly the jury was left to marinate on it,” O’Hara said. “I think this is of that nature where a jury is not going to be able to put that out of its mind and the limiting instruction is not going to cure the prejudice.”
Deputy State’s Attorney Andrew Gilbertson, who argued the case Thursday for the prosecution, told the high court justices that Griffin did the right thing in denying the mistrial and striking the statement.
He said Lawrence continued to testify after the ruling, including answering other questions from the defense on other subjects.
“And there were other witnesses that day, so the jury wasn’t left with it for the weekend,” Gilbertson said of the statement at issue. “And not only that, the testimony in question was consistent with the other piecemeal evidence of Mr. Bourgoin’s memory of that night, so it certainly wasn’t devastating.”
Justice Beth Robinson then jumped in with a question about the statement.
“I thought the suggestion was that it played into the prosecution’s theory that this defendant looked to blame others rather than taking responsibility, and the emphasis on the wrong-way sign was sort of another piece of that,” Robinson said.
“Was that an accurate description of the state’s theory?” the justice asked Gilbertson.
“I think the evidence could be used that way,” Gilbertson responded.
A tragedy for the communities
Bourgoin’s attorneys, in arguing at trial that he was insane at the time of the crash, pointed to defense witnesses who testified the 38-year-old believed he was on a top-secret government mission and getting messages through devices such as his computer and his pickup truck’s radio.
Prosecutors countered that Bourgoin was in a rage, and possibly suicidal. The prosecution told the jurors that Bourgoin was upset over his finances and a child-custody dispute with his ex-girlfriend, and after the crash had been feigning symptoms of a mental disease.
The teenagers killed in the crash were on their way home from a concert at Higher Ground in South Burlington at about 11:50 that night.
The five friends in the Volkswagen were Mary Harris, 16, and Cyrus Zschau, 16, both of Moretown; Liam Hale, 16, of Fayston; Eli Brookens, 16, of Waterbury; and Janie Chase Cozzi, 15, of Fayston. Four were juniors at Harwood Union High School, and Cozzi attended Kimball Academy in Meriden, New Hampshire.
After his pickup slammed into the teenagers’ car, Bourgoin stole a police cruiser — left empty by a Williston police officer who was trying to help the teenagers — and drove south on the interstate, then turned around and raced back to the wreckage, slamming at more than 100 mph into several stopped vehicles, including his heavily damaged pickup that had remained on the highway.
The teenagers’ deaths rocked their Central Vermont communities. Days later, nearly 1,000 people attended a vigil for them at Harwood Union High School. Then-Gov. Peter Shumlin spoke at the event, calling it the “saddest” day of his six years as governor.
Classmates raised nearly $20,000 and dedicated a gazebo at the high school as a memorial to the teens.
Throughout the trial, which took place more than two years after the crash, the issue wasn’t so much about what Bourgoin did, but about why he did it, with the jury hearing from different experts on his state of mind and mental condition.
In his appeal Thursday, O’Hara raised concerns over the testimony of Dr. Paul Cotton, a Burlington-based psychiatrist, and what he termed a late disclosure in violation of his client’s due process rights.
Cotton was brought on as a prosecution witness after the prosecutors dropped Dr. Reena Kapoor, a forensic psychiatrist at the Yale School of Medicine in New Haven, Connecticut, as their expert. The defense called Kapoor as a witness at the trial; Kapoor testified that Bourgoin was insane at the time of the crash. Cotton, who took the stand later in the trial, testified that Bourgoin was sane at the time.
O’Hara stated Thursday, and in a written appeal brief, that between the ninth and 10th day of the trial and ahead of Cotton’s testimony, the prosecution provided “new” information to the defense. The prosecution informed the defense that, in Cotton’s opinion, Kapoor’s diagnosis of Bourgoin as having an “unspecified personality disorder” did not meet the definition of a mental illness.
O’Hara added in the filing, “Had the defense known of Dr. Cotton’s opinion, it would have asked more of its experts.”
Gilbertson, in his brief and in speaking Thursday, disputed that there was reason to toss out Bourgoin’s convictions.
“The defense argued that the email from the state revealed a new opinion and constituted a late disclosure in violation of the discovery rules,” Gilbertson wrote in his filing. “The state explained that it had provided what the defense characterized as a ‘new opinion’ within a summary of a meeting between the state and Dr. Cotton which occurred the day before.”