SalemNews.com, Salem, MA

July 8, 2013

LaBrie seeks new trial

Mom convicted of withholding chemo from son blames attorney

BY JULIE MANGANIS
STAFF WRITER

---- — SALEM — Kristen LaBrie’s lawyer had never tried a Superior Court criminal case, nor had he ever handled a case involving a mental health defense.

Because of that lack of experience, LaBrie’s current attorney argues, LaBrie, serving an eight-to-10-year state prison term for the attempted murder of her autistic, cancer-stricken son, did not receive a fair trial.

A motion for a new trial, filed last month by Boston attorney Michelle Menken of the firm Rankin and Sultan, argues that a series of mistakes made by Danvers attorney Kevin James led to LaBrie’s 2011 conviction.

A Lawrence Superior Court jury concluded that LaBrie had intentionally failed to give her son, Jeremy Fraser, his daily chemotherapy medication, knowing that she put him at risk of suffering a relapse.

The prosecution had argued that LaBrie, divorced from Jeremy’s father, no longer wanted the burden of caring for the child.

But Menken, in a 56-page filing, argues that jurors might have come to a different conclusion if LaBrie’s attorney had handled the case differently.

“The result is a miscarriage of justice,” wrote Menken. “The jury’s inability to identify a plausible, innocent explanation for Ms. LaBrie’s course of conduct was plainly attributable to the ineffective assistance of trial counsel.”

LaBrie’s new defense lawyer, who was appointed to represent her in her appeal, argued that damaging testimony, in which LaBrie was forced to concede that she had lied to her son’s doctors and nurses, could have been countered with information about her history with the Department of Children and Families.

Those lies, in which La-Brie led Jeremy’s doctors and nurses to believe he was receiving all of his medications at home, were at the heart of the prosecution’s contention that she wanted her son to die.

Menken suggests, however, that LaBrie had another reason to lie: fear that the Department of Children and Families would remove Jeremy from her custody, as the agency had done in the past with both Jeremy and her older child. Because of a decision by James to oppose the use of those records, however, jurors did not know about that potential concern, Menken argues.

James, in an affidavit, expressed concern that the records might taint the jury’s view of LaBrie.

But James never objected to other damaging testimony about LaBrie’s past or her actions while caring for the boy, such as her social media posts about the boy’s grandmother, who was dying of cancer at the time, Menken argues.

She also argues that James never hired an expert on pediatric oncology, who might have offered insight to the jury about the strains on parents of children with cancer and the potential risks of not providing the medication. Early in the case, James had obtained approval to hire such an expert at public expense but never did so, instead pursuing a mental health defense.

James was so late in filing the required advance notice of a mental health defense, however, that it forced a delay of the trial and also led him to conclude that he should not oppose a request to turn over all of the materials used by his expert, Dr. Frederick Krell, to the prosecution.

James had argued that LaBrie was depressed and anxious about giving Jeremy the at-home medication.

But, wrote Menken, “Counsel dealt his chosen defense strategy a devastating blow when he gratuitously agreed to give the Commonwealth before trial everything his mental health expert was relying upon in evaluating Ms. LaBrie.”

Those materials included the actual tests Krell administered to LaBrie, which the prosecution’s own expert was then able to use to counter Krell’s testimony, by suggesting that LaBrie’s test results indicated an unusual number of self-reported issues, something the prosecution suggested was simply LaBrie trying to help fend off criminal charges.

James was unaware of a recent Supreme Judicial Court decision limiting the extent of materials the defense is obligated to turn over to the prosecution, and as a result, he handed over more than he was required to provide.

The motion also challenges some of Judge Richard Welch III’s jury instructions and rulings during the case, suggesting that he misstated the elements of the assault and battery charges by telling jurors that they could find that LaBrie created a “risk” of harm, not that she actually caused harm.

Prosecutors from the start acknowledged they could not prove that the missed chemotherapy directly caused Jeremy’s death, which occurred about a year after he was removed from LaBrie’s custody and sent to live with his father, Eric Fraser. Fraser opted to discontinue chemotherapy after his son’s cancer returned in a more aggressive and incurable form.

Instead, they argued that LaBrie’s failure to provide the medication created a substantial risk of death for the child.

Welch gave the Essex County District Attorney’s office 90 days to respond to the motion, meaning that a hearing on the request for a new trial will not take place until this fall at the earliest.

James was privately hired in the case and represented LaBrie from the day of her initial arraignment in Salem District Court in 2008.

While the case was pending, LaBrie, out on $15,000 cash bail, was deemed indigent, allowing James to seek public funds to pay for experts to help prepare the defense.

That decision also would have entitled LaBrie to seek the appointment of a Superior Court-qualified public defender or bar advocate to represent her in the case.

Menken was appointed by the state public defender office to represent LaBrie in her appeal.

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