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 firstname.lastname@example.org or on Twitter @SNJulieManganis.