BY JULIE MANGANIS
---- — SALEM — The Salem mother convicted of attempted murder for withholding her son’s chemotherapy medications will be back in a Lawrence courtroom later this month to ask for a new trial.
Kristen LaBrie and her new attorney say that the lawyer in her 2011 trial was inexperienced and made a series of errors.
Prosecutors argue that while Kevin James may not have handled the case the way LaBrie’s new counsel might have chosen, his tactical decisions are not grounds for a claim of ineffective assistance of counsel. Any errors he did make, they argue, had no effect on the fairness of the trial.
Superior Court Judge Richard Welch III, who presided over LaBrie’s trial, has scheduled a hearing for Nov. 19. LaBrie, now 40 and serving an eight- to 10-year prison term, is expected to be brought to court to hear the arguments.
LaBrie’s son, Jeremy Fraser, suffered from severe autism and was largely nonverbal. At the age of 6, he was diagnosed with lymphoblastic lymphoma, a type of cancer with an 80 to 85 percent cure rate.
LaBrie, who was divorced from Jeremy’s father, Eric Fraser, complied with the initial treatment regimen at the hospital and told doctors and nurses she would give him his at-home medications. But she never filled the prescription for an oral chemotherapy drug during one of the phases and filled only three months of a later regimen, pharmacy records showed.
Prosecutors argued that not only did LaBrie never tell doctors she was withholding Jeremy’s medications, she took steps to lead them to believe she was giving him the medication, including requesting more syringes. They argued that LaBrie no longer wanted the burden of caring alone for a sick, autistic child.
The cancer returned in a more drug-resistant form in 2008. Jeremy died the following year after his father, who was awarded custody of the boy, chose not to pursue further treatment. Eric Fraser died soon after his son, in a motorcycle accident.
LaBrie’s new attorney, Michelle Menken, said original defense attorney Kevin James should have introduced Department of Social Services and other records concerning an incident in which Jeremy was removed from her custody when he was a toddler, to convince jurors that the reason LaBrie lied was her fear that he would be taken from her again.
James had concluded that such evidence could be prejudicial to LaBrie and harm her case.
Menken also argues that James failed to have his own pediatric oncologist testify at trial about how some parents become overwhelmed by the burden of caring for a sick child.
But prosecutors contend that the doctor — who had reached similar medical conclusions about the effects of withholding chemotherapy — would not have been permitted to testify about LaBrie’s state of mind, given that she was not his patient.
As for an error by James in providing more materials from his own psychiatric expert to the prosecution’s expert, prosecutors say that was a harmless error that would not have affected the prosecution expert’s conclusions.
LaBrie’s attorney also takes issue with Welch’s instructions to the jury.
During the pretrial proceedings, LaBrie and her lawyer never raised a possible defense — and, in fact, were late in disclosing their intention to offer a “diminished capacity” argument. During trial, James argued to the jury that LaBrie was emotionally unable to comply with the doctor’s orders to give Jeremy his medication, and so overcome by depression she didn’t really comprehend the effects of what she was doing.
In her own testimony, however, LaBrie told jurors that she simply couldn’t bring herself to give her son the medications because they made him feel sick, a conscious choice at odds with what her lawyer and a psychologist for the defense suggested.
As the case went to trial, it received national attention. Some viewed LaBrie as a mother who was taking a stand against medicating her child because of the negative side effects of chemotherapy. Others pointed out that she told no one she was withholding his at-home medicines but still brought him to the far more grueling in-patient chemotherapy treatments that required overnight stays in the hospital.
The district attorney’s office and the court, as well as LaBrie’s lawyer, received hundreds of letters and calls about the case from around the country.
Courts reporter Julie Manganis can be reached at 978-338-2521, via email at email@example.com or on Twitter @SNJulieManganis.