SalemNews.com, Salem, MA

Local News

July 8, 2013

LaBrie seeks new trial

Mom convicted of withholding chemo from son blames attorney

(Continued)

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.

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