By John Vincent
ENTERPRISE CORRESPONDENT
LAKEVILLE — After seeing one of the killers of their son, Jason Burgeson, acquitted in federal court, family members are lobbying for a change in the federal carjacking law to make sure that future criminals get the penalty they deserve.
Kenneth Day was sentenced to four life sentences in state court, but Burgeson’s mother says if he had only been sentenced to one life sentence, he could be out on the street in 20 years, far too lenient a sentence for the brutal execution-style killing of her son and his friend, Amy Shute, on a Rhode Island golf course in June 2000. She said not only do the federal courts allow for the death penalty, but they also make people serve out the full sentence. That’s why they have placed letters in several local stores for people to sign and send to Howard Coble, chairman of the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security, urging a change in the law, so that the prosecution would not have to prove the criminal intended to kill the person at the moment when they car-jacked them.
According to published reports, Shute, 21, of Coventry, R.I., and Burgeson, 20, of Lakeville, were carjacked in downtown Providence on June 9, 2000, and driven in Burgeson’s Ford Explorer to the Button Hole golf course, where Gregory J. Floyd shot them in the head with a .40-caliber handgun. The five men involved split $18 in change taken from the couple, and Floyd and Harry Burdick spent the rest of the night riding around in Burgeson’s SUV.
“The way the carjacking law is now, if you were carjacked and murdered they would have to prove that they intended to kill you at the time they took you and that’s pretty hard to prove because you don’t know what anybody’s thinking when they take you,” said Nadine Burgeson, Jason’s mother.
Of the 20 to 25 years a person receives from the state, “I don’t think that’s sufficient for murder,” Burgeson said. “But under federal law, if they got life, they’d have to serve life.”
When Jason’s cousin, Justine Kingsley, started contacting congressmen to force a change in the federal carjacking sentencing law two years ago, the Burgesons were behind her all the way.
While Kingsley was successful in getting Rep. Barney Frank, D-Mass., to sponsor legislation to change the law, Jason’s sister, Kelly Surdis, recently took up the mantle and circulated letters for people to send to the Judiciary Committee when it looked like it wouldn’t be voted on this year. It must be voted on by November or the bill will expire and have to be reintroduced next year.
The letters have been in Savas, Starr’s Nature’s Pantry and the LeBaron Hills Country Club, and ask that the bill be voted on rather than left to die in committee.
Frank says that’s just what he thinks is going to happen this year, but he will not give up the fight if that is the case.
“It’s still in Judiciary Committee,” Frank said. “It’s basically too late … I’m going to bring it up next year. Nothing’s happening to it at all.”
“I pushed and at first I had some indication that people would support it,” Frank said, adding that unfortunately it hasn’t come up for a vote yet.
“I agree with the Burgesons, or else I wouldn’t sponsor it,” Frank said.
“It often takes a couple of years to go through,” he said, noting that the Judiciary Committee was tied up for most of the year dealing with Homeland Security issues. He said he had hoped to attach it to another crime bill, but there wasn’t one to attach it to, noting bills don’t usually go through on their own but get packaged with other ones.
“I’ll reintroduce it and keep pushing.”
According to published reports, all five defendants were charged in federal court to try them under the death penalty, which Rhode Island doesn’t have. All but Day pleaded guilty to avoid a death sentence. Floyd, Samuel Sanchez and Burdick are serving life sentences, and Raymond Anderson is serving a 30-year sentence.
Day went to trial in federal court and was acquitted in February 2002.
Day was later convicted in state court and got four consecutive life sentences.
Burgeson said she will keep pushing for the change, but she feels that even with the intent section of the law, Day should have been convicted in federal court.
“If you went out with a gun, what are you going to do with that gun? If a man goes out and he goes hunting and he takes a gun with him, wouldn’t you think he’s going to kill something? He’s not going to just shoot in the air.”
“If a person goes out with a gun and they say they are going to jack someone, what are they going to do with the gun?” she asked.
She also said with the testimony given in court that Day had urged Floyd to kill Jason and Amy, the intent was clear. Never-the-less, she feels it proper to remove the intent standard, saying justice should come to murderers whether they intended to kill their victims at the outset of the crime or merely decided to do so during the course of the carjacking.
“We’re trying, but who knows because it’s an election year, so everyone’s tied up. But if you don’t try, nothing will change.”
Kingsley said she just felt she couldn’t sit by and do nothing.
“After (Day) was acquitted, I was just a little bit upset. I decided to research the carjacking law,” Kingsley said.
She said she found out that the carjacking case that prompted the law would not have even been able to be successfully prosecuted under federal law. She said that case involved a person who drove off in the car without making sure they left the driver behind.
“They took off and dragged her to her death. Soon after that, the federal carjacking law was instituted,” she said, but she noted they wouldn’t have been able to prove intent to kill in that case, either.
The law that’s on the books does not do what it was intended to do, she said.
“How can you prove the intent if Jason and Amy are dead and they can’t tell you? … I don’t understand why there should be an intent requirement.”
She said the bill Frank is sponsoring, H2565, merely states that a person can be convicted in federal court for “carjacking, death resulting.”
The point was “to remove the intent to cause death,” she said, which she felt shouldn’t make any difference.
“It shouldn’t matter when they decided for it to happen, it should only matter that it happened” Kingsley said. “With Day’s case, he basically had his federal charges thrown out because of the intent requirement … and with the federal government, whatever the sentence the federal government gives is what you serve … in the state sentence, life can just be 20 years.”
She said she’s worked for two years to effect a change and is still hoping to see some action soon.
“Marc Pacheco was a big help, he got in touch with Barney Frank and Kerry. Kerry wasn’t running for president yet, but once he was, I figured he wouldn’t have the time.”
She said Rhode Island Senators Jack Reed and Lincoln Chaffee both declined to sponsor the bill in the Senate. “They said it was really good, but they wouldn’t initiate it. It didn’t make sense.”
“If it doesn’t pass, I’m going to try again in Rhode Island, the crime occurred there,” Kingsley said. “It’s just frustrating.”
This article originally appeared in the Brockton Enterprise.