Attorneys make final arguments before new trial ruling for Owen Labrie

  • Owen Labrie and his attorney look over documents at the Merrimack County Superior Court in Concord last month during an evidentiary hearing on whether Owen Labrie should be granted a re-trial.

  • ELIZABETH FRANTZ / Monitor staffOwen Labrie, 21, puts his hand to his forehead at the end of a three-day evidentiary hearing in February on whether he will be granted a retrial at Merrimack County Superior Court in Concord. Labrie, a prep school graduate convicted of using a computer to lure an underage girl for sex returned to court this week for a hearing on whether his lawyers damaged his case. ELIZABETH FRANTZ / Monitor staff

Monitor staff
Wednesday, March 15, 2017

Attorneys had one final opportunity to state their cases for why a Merrimack County Superior Court judge should or should not grant a new trial to a prep school student convicted of luring an underage girl for sex.

In separate written memorandums filed Monday, county prosecutors and Owen Labrie’s new defense attorney, Robin Melone, summarized their arguments based on last month’s three-day evidentiary hearing. Prosecutors argue that Labrie failed to prove his claims of ineffective assistance of counsel, while Melone maintains that the former defense team made costly and careless errors.

The decision is now in the hands of Judge Larry Smukler, who presided over Labrie’s high-profile trial in August 2015 and the hearing that concluded Feb. 23, which included testimony from several witnesses, including members of Labrie’s trial team.

Labrie, now 21, was acquitted of felony-level sexual assault but found guilty of statutory rape and endangering the welfare of a child, both misdemeanors. The St. Paul’s School graduate was also convicted of a computer acts prohibited charge for soliciting sex through email and Facebook from his 15-year-old victim as part of a game of sexual conquest known as “senior salute.” That lone felony conviction carries a mandatory penalty of lifetime sex offender registration.

Labrie has since filed an appeal in New Hampshire Supreme Court; however, the proceedings in that case are on hold until his motion for a new trial at the lower court is resolved.

A central and highly contested issue in Labrie’s appeal is whether the emails he and the girl exchanged passed through St. Paul’s privately hosted intranet, as opposed to the more publicly accessible internet. Labrie’s defense team argued that his conviction on the computer-use charge was cruel and unusual punishment. Prosecutors have stood by their decision to charge Labrie under the statute.

Deputy County Attorney Catherine Ruffle and Assistant County Attorney George Stewart conclude in their written remarks that the debate over internet versus intranet is moot because, regardless, Labrie used “a computer online service.” They note that St. Paul’s rules on acceptable computer use make no distinction between the two service options.

“The evidence elicited at the hearing did not support the defendant’s newly developed theory that intranet communication provides a safe harbor for behavior which would otherwise violate RSA 649-B:4,” prosecutors’ memorandum reads.

Melone strongly disagrees in her closing remarks, noting that the trial team did not investigate the differences between internet and intranet, file any pretrial motions on it, request “appropriate jury instruction,” or address it in opening statements or closing arguments. She called those actions “detrimental” to Labrie.

She further states that Facebook and email communications should have been treated separately, as it’s unclear whether jurors were unanimous in their verdict. Some could have found that Labrie violated the computer-use statute by sending the emails; others could have cited the Facebook messages.

High-profile Boston attorney J.W. Carney testified that he was unaware of the distinction between internet and intranet, and did not know that St. Paul’s email system was an intranet system. His co-counsel, Samir Zaganjori, testified that the team’s decision not to challenge the computer-use charge until after the jury verdict was not “ideal representation.” Both, however, stated that they believe Labrie received effective counsel.

The defense’s prime witness, Jaye Rancourt, told a different story. Rancourt, who served as local counsel on Labrie’s defense team, made impassioned claims – and at one point teared up – about how she, Carney and Zaganjori failed Labrie. She told the court that she regrets not moving for a mistrial, particularly after witnessing a conversation between Carney and a DNA expert that she said showed a lack of trial preparation.

Prosecutors say “her emotional reaction to those events do nothing to advance the defendant’s cause. At most, the evidence demonstrates a loss of objectivity on her part.”

Rancourt testified that she initially expected to play an active role, but was largely shut out of the legal process.

Labrie, though, did not object when Carney excused Rancourt from her obligation to appear at trial. Further, Labrie did not file an ineffective assistance of counsel claim based on Carney’s decision to excuse Rancourt, prosecutors noted.

(Alyssa Dandrea can be reached at 369-3319, adandrea@cmonitor.com or on Twitter @_ADandrea.)