By MIKE DONOGHUE
The trial for a man accused of killing five teenagers in a wrong-way crash on Interstate 89 in Williston in October 2016 is staying in Burlington.
Lawyers for Stephen D. Bourgoin, 37, filed a motion to move the trial out of Chittenden County because heavy news coverage will make it difficult to find an unbiased jury.
Judge Kevin Griffin rejected the motion, saying the lawyers failed to meet a four-prong test for moving trials elsewhere.
“Based on its consideration of all four factors, the Court concludes the defendant has not met his burden to show ‘so great a prejudice’ against him that he cannot receive a fair trial in this county,” Griffin wrote.
He said courts have established provisions for questioning jurors in high profile cases before moving a trial. He said he wants to give the lawyers a shot at finding an impartial jury within Chittenden County.
Griffin noted Chittenden County is Vermont’s most populous county, with the largest potential jury pool. In a smaller county, there would be fewer potential jurors, and bias might be a bigger factor there.
If the trial court is unable to find 12 impartial jurors, he is willing to later reconsider the motion.
Prosecutors had argued that pretrial publicity in the Bourgoin case “is not so pervasive, so negative, so inflammatory, or so prejudicial to the defendant that he is precluded from receiving a fair trial in Chittenden County.”
Griffin attached a 13-page chart to his decision, showing a partial list of the news stories in some Vermont newspapers and four TV stations. Griffin said people throughout Vermont were exposed to the coverage and could find news reports on the Internet.
While the Bourgoin case has generated considerable news coverage, Griffin noted a change of venue was rejected in another high-profile criminal case in Vermont. In 2011, a federal judge in Burlington refused to move Michael Jacques’ trial to New York. In one of the most publicized cases in Vermont history, Jacques was charged with sexual assault and murder in the death of his 12-year-old niece, Brooke Bennett.
Bourgoin has pleaded not guilty to five counts of second-degree murder in the death of the teens. He has been in custody since the accident. If convicted, he faces 20 years to life in prison on each second-degree murder count.
His lead defense lawyer, Robert Katims, has said he plans to use an insanity defense.
No trial date has been set. It could be bumped into early next year because of the insanity defense and the number of depositions from witnesses and pretrial motions.
The crash killed Eli Brookens, 16, of Waterbury; Janie Chase Cozzi, 15, of Fayston; Liam Hale, 16, of Fayston; Mary Harris, 16, of Moretown; and Cyrus Zschau, 16, of Moretown. They were headed home after a concert at Higher Ground in South Burlington. Four attended Harwood Union High School in Duxbury; Cozzi went to Kimball Union Academy in New Hampshire.
Bourgoin was driving the wrong way on I-89 in Williston, speeding, and had high levels of THC — the active ingredient in marijuana — in his blood system when he crashed into the teens at about 11:50 p.m. Oct. 8, 2016. His speed was estimated at 79 miles per hour. The Volkswagen carrying the teens burst into flames.
Bourgoin then stole a Williston police cruiser, made a U-turn on I-89, and raced back to the crash site, slamming into the wreckage from the first accident at 107 mph.
Griffin noted some news coverage centered on the drugs found in Bourgoin’s system when he was transported to the hospital after the crash.
“Several advocacy groups and commentators tried using the result of the toxicology report to bolster their arguments against marijuana legalization, but these reports were limited,” Griffin said.
Some legislators cited the five dead in the Williston crash and four people killed in an Addison County crash also with a marijuana impaired driver as one of the reasons to keep marijuana illegal in Vermont.
Six hours after the crash Bourgoin still had 10 nanograms of active THC level in his blood, according to the drug report first released to the Times Argus in November 2017. A judge had agreed to the blood draw because of his level of impairment at the scene.
Any level of THC in a driver in Vermont is against the law.
He also had lower amounts of other drugs, including fentanyl, norfentanyl and midazolam, the report said.
The drug report said Bourgoin was impaired.
Bourgoin remains jailed without bail at the Northwest State Correctional Facility in St. Albans awaiting trial. If convicted, he faces 20 years to life in prison on each second-degree murder count.
Bourgoin also has denied charges of operating a Williston Police cruiser without proper consent and gross negligent operation of his personal car.