Interesting article in the Concord Monitor today about the felony charge.
"Carney can appeal the conviction directly to the state Supreme Court, or ask the judge in the case, Larry Smukler, to throw out the computer charge alone, claiming an unreasonable jury decision. Or he can do both.
If he appeals to Smukler, Carney will likely argue that the crime does not fit the spirit of the law – a tactic that is rarely successful.
“There’s no question this is not the kind of case the legislation had in mind,” Scherr said. “But the way the criminal justice system generally works is we hear whether a person is guilty based on the elements that are charged, not what the Legislature is trying to do.”
Carney also chose not to contest the charge before or during the trial, and Scherr said that might hurt him on appeal. Smukler could find the argument compelling but ultimately decide that it was raised too late."
They also say the plea deal was simple assault with less than a month in jail
If the felony computer charge is deemed to not fit the spirit of the law, why didn’t the defense petition to have that charge removed at some earlier point, and assuming that was done, one could assume the judge did think it had merit? One of the original 10 charges was dropped between the courtroom proceedings and the jury’s deliberation, right? I assume other charges were questioned and considered at that time. I see above that the Concord Monitor article states that Carney did not contest the charge. That seems like questionable logic/ poor strategy by the defense if it is true.
Here is an op-ed on the subject written by an author with a unique perspective–she was actually lured and attacked by an online predator who was ultimately convicted and she has fought for strong laws in this arena. She also attended St Paul’s.
Re: the link, if it directs you to subscribe, I found the whole article just by typing in the title on G**gle
"Yet Mr. Labrie’s conviction under such a statute seems like a gross misapplication of a law that was intended for a much different set of circumstances. The intent of these laws was never to put teenagers behind bars for communicating over Facebook or email or text message about meeting up for sexual encounters.
It’s wild to think Mr. Labrie could have propositioned this classmate on the paths of St. Paul’s instead and he would not today stand convicted of a felony. But simply because he communicated over the Internet, he faces up to seven additional years in prison, and he will be required to register as a sex offender for life…
Friday’s conviction sends a troubling message to America’s adolescent boyfriends and girlfriends. In some jurisdictions in the U.S., the age of consent is 18. Some jurisdictions do not have “Romeo and Juliet laws” intended to protect consensual relationships between minors, or between a minor and someone only a year or two older. Add to that teens’ universal use of electronic communications, which turns these misdemeanors into felonies, and prosecutors have the power to ruin many lives."
I too find it perplexing that the computer charge was not challenged, especially knowing the consequences of lifetime registry. Hmm, a month in jail on a plea with no registry vs the chance of a lifetime registry? I can’t understand the thinking here on anyone’s part (Labrie, his parents, the lawyer).
The fact that the case went to the jury means the issue of whether this case fits the literal meaning of the law, let alone its intent, has been introduced. That is what juries do. I’ve seen judges toss laws but they generally restrict what juries hear about a law itself because the juries at this stage of the process decide whether these facts as they see them meet the law as it has been read to them and they do not want the jury to consider arguments beyond that process.
I thought the article sort of made the defense’s argument: it cites a case upheld in which a 21 year old used Facebook to solicit a 13 year old and his only defense was that he didn’t explicitly use “sex”. That was a different defense - one about intent and whether his actions were soliciting for the illegal purpose (and the law doesn’t require overt mentions of sex). But the rest of the case is exactly the difference: a stranger, an adult, using a public forum to contact and solicit a 13 year old. I couldn’t see why the article cited this as support for the conviction in this case.
I, too, wondered why the felony computer charge wasn’t contested when the other charge was dropped.
Man, that plea deal was less than a month in jail? The plea deal was also brought up in the NPR audio posted above. It does make you wonder why he didn’t take it. As someone said above, either he’s innocent or he really thought he could convince a jury that he was, or maybe his parents wanted this to go to trial. I read in one of the reporter tweets that after he was convicted, he turned around and said to his mom: “I love you. I didn’t lie to you.”
There is a sweeping exception to the hearsay rule stating that the defendant’s own out-of-court statements may be used against him. There’s an equivalent rule in civil cases: the out-of-court admission of a party to the suit is not barred by hearsay.
Even without this sweeping exception, Labrie’s statements would probably be admissible under the hearsay exception called “statement against interest.” If you say something that makes you look bad, there’s a presumption that you’re probably telling the truth. So there are lots and lots of justifications for allowing this evidence to come in at trial.
It is hard to say much about the performance of the attorneys without reading the trial transcripts. However, the evidence presented by the prosecution, on direct examination,through the 16 witnesses that the State called was more than ample to support convictions on all counts. Still, Carney got not guilty verdicts on the three most serious charges. I think this is probably due to his sustained, measured chipping away at the direct testimony on cross-examination and by emphasizing reasonable doubt.
Without reading the transcripts, it seems to me the two most effective strategic moves by the defense were these: On August 19th when the victim was on the stand during cross-examination, the very last impression that the jury left with for the day was that the victim possibly had decided beforehand to engage in two certain, specific sexual practices with the defendant. The other strategic move was in Carney’s being just argumentative enough with the victim that she stood up to him and argued back against him in the courtroom. The skill at timing, and the finesse in questioning to draw out both of these impressions takes considerable practice. IMO these two items probably doomed the prosecution on these three counts, but again, this is just based on twitter feeds.
If there was a misstep, IMO it was in calling the defendant to the stand. I think the results of this case show that although the jury disbelieved the victim, they disbelieved the defendant even more. His contention that no penetration occurred was always a stretch to begin with. His testimony concerning the few minutes that the specific event took place seemed particularly convoluted to me, especially given that the victim presented to the ER with an abrasion, however slight. I also think that the admission that he was the one who left the room first after the encounter was particularly harmful.
The defendant always has the final say on whether or not he will accept a plea bargain and, if it goes to trial, whether or not he will testify. I don’t think Carney should be faulted on either of these things until more is known.
Regarding the suggestion that the defendant was offered a plea to simple assault, I have a hard time believing that the victim and her family would have been okay with this, given their strong statement after the trial. While the victim can’t veto a plea offer, many prosecutors give a good bit of deference to the defendant’s wishes before accepting a plea.
@MidwestDad3 , appreciate your cogent analysis as always, but I do wonder if the victim and her family would have been OK with seeing Labrie cop a plea of serving the month (or less) of jail time.
Knowing that he would be going to jail, even briefly + the fact that he lost his seat at Harvard + the fact that the accuser would be spared the agony of testifying and seeing the defendant again might have been an outcome that the victim and her parents could have lived with. I think the agony the girl and her parents went through every day of the trial-- and even more so for the 3 days she testified – was probably almost unbearable.
Regarding Labrie refusing the plea deal – I think he and his parents suffered from magical thinking. There are behavioral economists that specialize in decision-making theory and identify fallacies of logic. As I see it, even if he were truly 100% convinced that he did nothing illegal with ANY of his body parts/fluid, he likely misjudged the degree of skepticism that his story of “divine intervention” before climax would receive, and he likely also misjudged the impact of his friends’ testimony and all the FB and email messages in toto. He sort of ignored common sense about how humans interpret smoke/fire and quacking/a duck. I’m not saying juries always come to the correct conclusion, but when making a decision with such dire consequences, examining the scenario from every possible angle makes the most sense.
I think the decision by Labrie to not take the plea would be an interesting case study for such researchers. Their conclusion might be that hindsight’s 20-10.
@MidwestDad3, thank you, too, for the time you’ve taken to post here. I feel like I’ve learned more from you about the law surrounding this case than from any of articles/videos/audio of the case I’ve seen.
Agree with @MidwestDad3 that we don’t know what sort of memo to the file Carney has written.I sometimes turn down settlements I’ve told my client to take. I have gone so far as to write a letter to the client saying I estimate your chance of success at less than 5%. My client still wants to go forward. I then lose. I’m sure some folks hear the settlement that was offered and think I did a lousy job. I didn’t. Carney may have told Labrie that he’d probably lose before trial. He may have also warned him about taking the stand. It happens.
I have a question for you @ MidwestDad3
What blew my mind was the way Labrie talked about the victim. In the world in which I live, if a teenage girl accused an 18 year old boy of raping her when he hadn’t, the boy would be ANGRY. I think it’s fine to say he was attracted to her. I think it’s fine to talk about giggling and having fun on the roof. But at some point, when he finds out she’s (supposedly) lying to the police about the encounter and he is arrested for rape, he’s going to blow up. When he’s asked about her testimony on the stand, he’s going to convey the impression that he KNOWS she’s a lying &*Tch. .
I’ve never served on a jury, so maybe I’m wrong, but if I were on that jury I think would have been watching Labrie during a lot of the testimony. And if Labrie didn’t convey any anger towards the girl, I’d think to myself…she’s telling the truth. If anyone ever accused me of doing something like this, I would be MAD.
So, my question @MidwestDad3 is whether defense counsel in a case like this would counsel the defendant to avoid saying anything the least bit critical about the girl and against displaying any anger? if he’s going to take the risk and take the stand himself shouldn’t he then convey the impression that he’s angry about all the lies he’s heard? To me when I watch Labrie…and granted it’s just clips…he seems as if he’s acting.
Also, while there’s a lot of comment about Labrie’s hair and glasses, I get the impression he dropped a lot of weight. Maybe that’s because he wasn’t playing sports this past year, but I read that the girl is “petite” and I wondered if there was an intentional weight loss so people weren’t looking at the two of them and thinking “if he was lying on top of her there’s no way she could have moved.” Not only does the mug shot make him look heavier, but there are pictures of him at St Paul’s still up on social media and I swear he looks much heavier and stockier in them too.
If I were under this level of duress, I’d lose a ton of weight, too. When I’m stressed within reason, like going through the college admission process with my kids, I’m eating chocolate, carbs, and gaining weight. When I’ve been diagnosed with cancer, I’ve lost over 5 lbs a week for a few weeks in a row, and I’m still eating. I think my metabolism speeds up when I’m dealing with extreme stress.
“he seems as if he’s acting.”
“he dropped a lot of weight. Maybe that’s because he wasn’t playing sports this past year, but I read that the girl is “petite” and I wondered if there was an intentional weight loss”
@jonri
I’ve thought that as well. He doesn’t come across as completely genuine given the circumstances. His testimony seemed like romantic reminiscing, which seemed off to me.
He’s definitely lost weight, which I think makes him look younger. I kind of chalked it up to not playing sports plus the amount of stress he’s been under over the past 15 months. Yet, if he’s been involved in physical labor building a chapel, one would think he’d keep some bulk on.
Also, I’ve wondered if glasses help serve more than one purpose. In addition to fostering the nerd look, it could conceal a defendant’s eyes. I’ve always read that eyes can be a “tell” when someone isn’t being honest. Not sure how much scientific weight it has but have heard that people like INS officials watch people’s eyes. I’ve watched some video tapes of Labrie responding to the prosecutor’s cross and his eyes are all over the place, along with a heck of a lot of blinking.
Yes, I think the weight loss was more likely due to depression.
Regarding anger towards the victim, I imagine he is/was angry at her and at himself. But I don’t think displaying that anger would have won him any points with the jury. In my experience, juries want to see defense attorneys fighting as hard as they can for their clients, because it makes it seem as if the attorney totally believes in the client’s innocence. But the same does not extend to the defendant’s behavior. If the jury sees a defendant angry at the victim in the courtroom, it will be much easier for them to imagine him being angry at her up in the locked room and harming her for saying “no” while this incident was going on.
I think most everyone recognizes this by now, but the defense was walking on a tightrope. They had to convince the jury that the victim wanted a sexual encounter in order to get the NG’s on the 3 felony rape counts. But they had to also convince the jury that no sex occurred in order to get not guilty verdicts on the misdemeanor counts. All this while defendant’s stated goal had been to have sex with her, he arrived prepared (with condom), and he later bragged to his friends that he had sex with her. It was a very tall order from the start, which makes the failure to take the plea all the more mystifying. But, no, showing anger toward the victim in court would not have helped IMO.
I think that judging how a teenage boy looks/acts while facing trial for crimes that could put him away for decades isn’t much different than judging how a young girl acts after a rape. Shell shock, horror, overthinking, dread, fear, second guessing, disbelief, trying to be brave, etc. could happen in both cases. If Labrie was harboring secret guilt, shame would also come into play. If Labrie was telling the truth, his affect could be skewed by all of the above thoughts/feelings.
Until you’ve been in those shoes, pretty hard to judge either one of these kids. Of course, it’s appropriate and necessary for the jury to do exactly that, but it’s not a task I would relish nor one that I care to undertake as a non-present, non-juror.