SalemNews.com, Salem, MA

November 22, 2013

Judge denies new trial for Salem mom

BY JULIE MANGANIS
STAFF WRITER

---- — SALEM — A Lawrence Superior Court judge has rejected a bid for a new trial by the Salem mother convicted 21/2 years ago of trying to kill her autistic son by withholding his chemotherapy.

Judge Richard Welch, in a four-page decision released yesterday, concluded that while not perfect, the work of Kristen LaBrie’s attorney was “very good” and that the lawyer, Kevin James, pursued the only viable defense — that LaBrie was overwhelmed by the responsibility of caring for a sick child but unable, for a host of reasons, to admit it or ask for help.

LaBrie is serving an eight- to 10-year prison term on charges that include attempted murder, child endangerment, and assault and battery. Her 8-year-old son’s cancer had been in remission but returned in a deadlier form after she withheld his medications. Her son, Jeremy, died at the age of 9, after being removed from her custody.

It was James’ first Superior Court criminal case, and LaBrie’s new attorney, Michelle Menken, argued that he made mistakes, including failing to meet a deadline for notifying the court of his planned defense, which rendered him “ineffective” in representing LaBrie.

The judge disagreed. “In many ways this motion proves, once again,” Welch said, “that no good deed goes unpunished.”

Welch noted that James, who handled the case “pro bono,” or free of charge, pursued extensive pretrial motions, including a hearing to challenge the medical evidence and a motion to suppress statements and documents concerning the involvement of the Department of Social Services in LaBrie’s life.

“He chose the best possible defense and presented it well at trial,” Welch concluded.

Welch rejected complaints by the new attorney that James should have acknowledged LaBrie’s history with DSS, in order to show the jury that she was fearful of losing custody of her son. On the contrary, the judge said, James chose “wisely” not to do so, because “extremely prejudicial testimony of the defendant’s prior drunkenness, child neglect and loss of custody would have been presented to the jury.”

Labrie’s older child had been removed from her custody permanently.

It also would have played into the hands of the prosecution, the judge suggested.

During the 2011 trial, prosecutor Kate MacDougall had argued that LaBrie, resentful at being left by her ex-husband to care for their autistic, cancer-stricken child, intentionally withheld the medication, knowing that, as she later told social workers, “it would be like pushing him in front of a moving car.”

Given her history with DSS, LaBrie knew that had she admitted she wasn’t giving Jeremy his medications at home, the state would have made sure he got them, the prosecution suggested.

“The government used this argument in its efforts to prove defendant’s intent to kill,” Welch wrote. “The now proposed defense would have buttressed the Commonwealth’s case and prejudiced the defendant greatly.”

Welch also rejected the new legal team’s argument that James should have hired an expert on childhood cancers, noting that while the expert could have given information about the numbers of parents who choose not to give chemotherapy to their children, that information was not relevant to the defense James had chosen. Instead, an expert would have simply backed up what Jeremy’s doctor testified to.

And Welch pointed out that a defense expert on cancer would have been unable, under the rules of evidence, to testify about LaBrie’s state of mind.

LaBrie’s attorney has also filed an appeal with the state Appeals Court, a proceeding that has been on hold until the outcome of this week’s hearing. That appeal is now expected to move forward.

Courts reporter Julie Manganis can be reached at 978-338-2521, via email at jmanganis@salemnews.com or on Twitter @SNJulieManganis.