Judge denies Owen Labrie’s request for a new trial

  • Owen Labrie and his attorney look over documents at the Merrimack County Superior Court in Concord, N.H., during an evidentiary hearing on whether Owen Labrie should be granted a re-trial. Labrie, a prep school graduate convicted of using a computer to lure an underage girl for sex, was denied the re-trial request on Wednesday, April 19, 2017. (Geoff Forester / Monitor staff)

  • Owen Labrie, 21, exits the courthouse with his attorney following the last day of an evidentiary hearing on whether he would be granted a re-trial at Merrimack County Superior Court in Concord, N.H., on Thursday, Feb. 23, 2017. 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)

  • Owen Labrie, 21, listens to testimony during the last day of an evidentiary hearing on whether he will be granted a retrial at Merrimack County Superior Court in Concord, N.H., on Thursday, Feb. 23, 2017. Labrie, a prep school graduate convicted of using a computer to lure an underage girl for sex, was denied the re-trial request on Wednesday, April 19, 2017. (Elizabeth Frantz / Monitor staff) Elizabeth Frantz / Monitor staff

Monitor staff
Published: 4/19/2017 5:11:56 PM

A judge denied Owen Labrie’s bid for a new trial Wednesday, saying that the St. Paul’s graduate failed to prove that his high-profile legal team was “constitutionally ineffective.”

To the contrary, Merrimack County Superior Court Judge Larry Smukler said Labrie had “highly experienced and prepared defense attorneys who, overall, made reasonable strategic and tactical decisions throughout the trial.”

Labrie’s new defense attorney, Robin Melone, argued that the trial team led by J.W. Carney made consequential errors and ignored evidence that could have benefited the defense’s case. Central to Labrie’s argument was that the lone felony computer acts prohibited charge – which carries a mandatory penalty of lifetime registration as a sex offender – was wrongly applied to his case.

Labrie, now 21, was convicted of the computer-use charge following his two-week trial in August 2015. Jurors found him guilty of soliciting sex through email and Facebook from his 15-year-old victim as part of a game of sexual conquest known as “Senior Salute.”

He was acquitted of felony-level sexual assault but found guilty of statutory rape and endangering the welfare of a child, both misdemeanors, in addition to the felony computer-use charge

Smukler handed down his decision Wednesday, nearly two months after the Concord court held a three-day evidentiary hearing on Labrie’s motion for a new trial. That hearing included testimony from several witnesses, including Labrie’s former attorneys, Carney and Samir Zaganjori.

Both lawyers were asked in detail about the computer-use charge, including whether they ever investigated the differences between St. Paul’s School’s privately hosted intranet and the more publicly accessible internet. Labrie maintained that if the email communications that form the basis of the computer-use indictment had traveled over the intranet, the statute was misapplied.

Carney and Zaganjori told the court they were unaware of the differences and hadn’t looked into the matter.

Smukler acknowledged Wednesday that the lawyers “failed to identify” the issue, but he said that doing so did not equate to ineffective assistance of counsel. Further, he said, Labrie’s underlying assumption lacks merit, because regardless of whether the emails were sent by way of the intranet or internet they still traveled from one computer to another through an online server.

Smukler went one step further, highlighting what he called “the absurdity” of Labrie’s argument. He cited the hypothetical situation outlined in the defense’s 2015 motion to set aside verdict on the computer-use charge – “that the statute is designed and limited to cases where there is age disparity and/or anonymity between a defendant and a victim.”

In that scenario, an anonymous 40-year-old who uses a campus intranet to solicit sex from a 12-year-old is not committing a computer-use crime; whereas he would be if he used public Wi-Fi or a home computer, Smukler wrote. He noted that all situations should be responded to in the same manner, as that’s the true intent of the statute.

As part of his argument for a new trial, Labrie also questioned his former defense team’s decision not to make a case for jury nullification or selective prosecution.

Jury nullification occurs when jurors acquit a person, even though they believe he or she is guilty of the charges, because they disagree with how the law was applied to a case. Smukler said that is an “awkward argument” to make in the context of a sexual assault case, especially when Labrie’s defense strategy was to deny sexual penetration ever occurred.

Smukler said it would also be inappropriate to now second-guess the defense team’s decision to try what Carney called “a tight case” and not argue selective prosecution.

During the February hearing, Carney testified that he made a strategic choice 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.”

Trying the case tightly also meant that Carney and Zaganjori did not take every opportunity to impeach the credibility of key witnesses, including the victim and other St. Paul’s students. While Melone called out those choices as defense failures, Smukler concluded that they were reasonable strategic decisions.

Labrie has filed a separate appeal in New Hampshire Supreme Court. That appeal was on hold pending the lower court’s ruling.

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




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