The high-profile Boston attorney hired to represent Owen Labrie said he tried a “tight case” that limited the admissibility of certain evidence, including witness statements he viewed as “toxic” to the defense.
J.W. Carney took the witness stand Thursday morning, on the final day of an evidentiary hearing on Labrie’s motion for a new trial in Merrimack County Superior Court. Carney, who testified at the prosecution’s request, told the court that he believes the defense team was effective in representing Labrie.
The 21-year-old St. Paul’s School graduate is claiming the opposite. Labrie says his trial defense team did not conduct basic legal research, effectively impeach certain witnesses or challenge the sole felony computer acts prohibited charge that mandates he register as a sex offender for life.
Labrie was acquitted in 2015 of felony-level sexual assault but found guilty of statutory rape and endangering the welfare of a child, both misdemeanors. He was also convicted of the computer-use charge, for soliciting sex through email and Facebook from his 15-year-old victim as part of a “Senior Salute.”
Labrie has appealed his convictions to the New Hampshire Supreme Court; however, the proceedings in that case are on hold until his motion for a new trial at the lower court in Concord is resolved.
At the conclusion of the three-day hearing, attorneys from both sides agreed to submit written legal arguments to the court by March 6. Judge Larry Smukler has 30 days from that date to issue a decision on whether to grant or deny Labrie’s new trial request.
Carney began his testimony Thursday after first shaking hands with Labrie, who has changed attorneys several times since his arrest.
Carney told the court that throughout the trial, his biggest fear was jurors hearing from the three girls whom the victim had confided in. The victim spoke to those friends immediately after her May 2014 encounter with Labrie, and told them she had not given her consent.
The report of another person’s words by a witness is considered hearsay and usually not allowed as evidence in court. However, if Carney or his co-counsel didn’t walk a tight rope, numerous witnesses could have been permitted to testify that Labrie forced himself on the girl, which would have corroborated her story.
With that in mind, Carney said, he proceeded cautiously in questioning witnesses as to not “open the door,” or be the first to introduce, inadmissible evidence, that might pave the way for prosecutors to shatter Labrie’s defense.
Preventing the testimony “became a lynchpin of how we tried this case,” Carney said.
The defense had tried to say the girl fabricated her account from the beginning.
Similarly, Carney said he made a strategic decision not to argue that Labrie had been singled out for prosecution, even though there was evidence that other St. Paul’s students had engaged in senior salutes.
Owen was prosecuted for a very specific reason, Carney said: “There was no evidence that I saw in the discovery that another person had engaged in a Senior Salute that had resulted in an allegation of forcible rape.”
Making a case for selective prosecution can be a slippery slope, and result in prosecutors being able to introduce evidence that’s very prejudicial to the defendant, Carney said. He testified that he stayed away from that argument in the Labrie case for good reason.
“There were a number of references to other women Owen had dated in which he acted in ways, according to the women, that were very aggressive, that were forceful, that led to Owen having a very bad reputation at the St. Paul’s campus among women as someone who’d be so aggressive that he would actually go so far as to inflict injury,” Carney said.
During the three-day hearing, attorneys dug into these and other issues with both the defense and prosecution calling witnesses to the stand. One issue that took center stage was the trial team’s handling of the felony computer acts prohibited charge, and whether the statute was properly applied to the Labrie case.
Under his current attorney, Robin Melone, Labrie is arguing his former lawyers failed to research whether the emails he and the girl exchanged passed through the St. Paul’s privately hosted intranet. If so, they maintain, the statute isn’t applicable because the communication didn’t happen over the more public internet.
Carney said he studied the computer-use statute but did not delve into the legislative history. To this day, he said, he doesn’t know the difference between the intranet and the internet. He said the issue was never brought to his attention until the appeal.
His co-counsel, Samir Zaganjori, testified earlier that the defense team’s decision not to challenge the computer acts prohibited charge until after the jury verdict was not “ideal representation.” Despite that, he agreed with Carney that Labrie received effective counsel.
The defense’s prime witness, Jaye Rancourt, who served as local counsel to Labrie’s out-of-state team, strongly disagreed during her earlier testimony. She said she was so outraged by how Carney’s office handled the case that she considered asking for a mistrial, particularly after witnessing a conversation Carney had with a DNA expert in which he appeared unprepared.
Rancourt claimed Carney had not met the expert prior to trial. Carney rebutted that claim Thursday, saying they had met for more than two hours that summer.
As Labrie fights for a new trial, the young woman he was convicted of raping is focused on her advocacy work. Chessy Prout came forward on national television in August, saying she is not ashamed and hopes to inspire other sexual assault survivors by telling her story.
(The Monitor does not name victims of sexual assault unless they self-identify. Alyssa Dandrea can be reached at 369-3319, adandrea@cmonitor.com or on Twitter @_ADandrea.)