BY JULIE MANGANIS
---- — SALEM — It started out as a child endangerment case in district court, not unlike many of the misdemeanor criminal cases lawyer Kevin James had tried earlier in his career.
He agreed to represent Kristen LaBrie pro bono, he testified yesterday, because he knew her boyfriend at the time.
But when LaBrie’s 9-year-old autistic son, Jeremy, died of cancer — cancer that had been in remission before she began withholding his medications — she was indicted for attempted murder. James stayed with the case, even though he had never tried a criminal case in Superior Court before.
LaBrie was convicted and is serving an eight- to 10-year prison term at MCI Framingham.
Now, LaBrie’s new attorneys want a judge to grant the Salem woman a new trial, based in part on James’ “ineffective” work on the case. Prosecutors are opposing the motion and were put in the unusual position yesterday of defending the work of a lawyer with whom they had a somewhat tense relationship throughout the proceedings — including accusations that James hung up on prosecutor Kate MacDougall at one point.
During a hearing in Lawrence Superior Court yesterday, where a pale LaBrie sat taking notes, James defended his decision to pursue a so-called “diminished capacity” defense for LaBrie — a type of defense he had never handled before.
“I believe that was the only viable defense,” James testified during the hearing before Judge Richard Welch III. “The theory was that Ms. LaBrie had experienced diminished mental capacity as a result of the emotional trauma of caring for an 8-year-old child with cancer, coupled with the fact Ms. LaBrie had a minimal support group.”
LaBrie’s new attorney, Michelle Menken, has contended that James should have known the defense would fail, because he never addressed the damaging evidence against her, including a profanity-laden email sent to her ex-husband, Eric Fraser, Jeremy’s father, that could have been taken as a threat toward the child, and her statement to state social workers that she knew withholding Jeremy’s chemotherapy would be akin to “pushing him in front of a moving car.”
Instead, James sought to bar any reference to LaBrie’s involvement with the Department of Social Services. He testified yesterday that he believed jurors would hold it against LaBrie if they learned that the department had previously investigated reports of neglect and had taken her older child out of her home permanently.
A more viable defense, Menken suggested, would be that LaBrie lied about giving Jeremy his medication because she feared that he would be removed from her custody, just as her older child had been. Department of Social Services records about that removal could have supported that belief, she said.
She also argued that James’ decision to hand over more materials from his own psychological expert than the law required — a decision James also defended yesterday — undercut LaBrie’s case.
James acknowledged that he was not familiar with a case that had been decided shortly before the LaBrie trial concerning what defense attorneys are required to turn over to prosecutors. But he said he believed he had no choice but to give prosecutors the materials.
That’s because James failed to notify prosecutors and the court of his planned mental-health defense until just before the original trial date. He testified yesterday that had he fought against turning over all the records, he feared that a judge would have barred him from using the planned defense because of the late notice.
During testimony earlier in the hearing, Dr. Paul Patel, a child cancer specialist from Florida, testified about the prevalence of noncompliance by families of children undergoing cancer treatment, noting that for some portions of the treatment, as many as 40 percent of patients miss dosages, often because of the side effects.
“It’s a huge concern for pediatric oncologists,” Patel testified.
But he acknowledged that the studies do not break down the specific reasons, nor do they delineate the age groups most likely not to comply, such as adolescents, for whom side effects like weight gain and hair loss are, in their minds, worse than the potential result of missing medications.
But when Patel suggested that a review of records from LaBrie’s case indicated that she may not have understood the implications of failing to give Jeremy his medications, the judge, jumped in. “How do you know that?” he asked.
Patel acknowledged that he didn’t.
Welch took the motion under advisement and could rule as early as this week.
LaBrie has also filed an appeal of her conviction with the state Appeals Court, but that proceeding is on hold pending the outcome of the motion for a new trial.
Courts reporter Julie Manganis can be reached at 978-338-2521, via email at email@example.com or on Twitter @SNJulieManganis.