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Bar News - April 18, 2008

LaBarre Murder Trial Unusual in Several Respects

Bradford Bailey, left, and Jeffrey Denner, of Boston, are leading the defense team of Sheila LaBarre.
Alex Yiokarinis and Rich Taylor, formerly of the NH Public Defender, are co-counsel on LaBarre’s defense team. Another NH attorney, Robert McDaniel, is also helping with the case.

When the trial of accused murderer Sheila LaBarre begins in early May, two high-profile Boston defense attorneys will represent her in an unusual arrangement with the NH court in which the taxpayers will pick up her legal tab.

Attorneys Jeffrey Denner and Bradford Bailey, of the firm Denner Pellegrino, are being paid through the state’s indigent defense fund at a much lower rate than their typical fee. The rare agreement with the firm was made when LaBarre was declared indigent after her assets were frozen by the court as the result of a wrongful death suit filed against her by the family of one of her alleged victims.

In most cases when a defendant is declared indigent, he/she is appointed a public defender. In the LaBarre case, the Boston firm asked Rockingham County Superior Court Associate Justice Tina Nadeau to allow them to serve as the court-appointed counsel. In their motion, the attorneys argued that their continued involvement was warranted due to the complex nature of the case and because they had represented LaBarre from the beginning.
"We felt it would be inappropriate for us, given the amount of work we had put into it, to back out of the case, so we chose to stay involved," Denner said. "We’d given her our word that we would defend her."

Nadeau approved the request from Denner and Bailey, but set a cap of $15,000 on attorneys’ fees in the case, based on an hourly rate of $60 instead of the firm’s usual hourly rate of $500. For any other expenses such as expert witnesses or investigators, the defense must file a motion requesting the additional funds.

The case became even more complex in February when LaBarre opted to plead not guilty by reason of insanity. Her plea included not only the murder of Kenneth Countie, but a second man, Michael Deloge. LaBarre originally planned to proceed with a bifurcated trial, meaning that she would have first gone to trial on her guilt or innocence and then, if found guilty, had a second phase on her sanity When her trial begins in May, however, now it will deal strictly with the issue of whether she was insane at the time the murders were committed.

"Once we got involved in this case, it was fairly clear to us that there was a very legitimate insanity, lack of criminal responsibility issue here," Denner said. "We felt we had gained the client’s trust and we told her we were going to deal with the situation for her."

LaBarre’s specific mental illness has not been detailed publicly. One of the major challenges of the insanity plea is that it shifts the burden to the defense to prove that the defendant is insane. Unlike a traditional trial in which the state presents its case first, the defense will be first to call witnesses.

New Hampshire’s law regarding insanity in criminal cases places enormous responsibility with the jury, as the law does not specifically define insanity. The statute employs a two-pronged test to determine guilt in such cases. The defense must first show that LaBarre suffers from a mental disease or defect. Then, it must show that the murders were a product of that mental disease or defect. Neither mental disease nor defect has been defined by the legislature or the courts, which means it’s up to the jury to decide whether the evidence presented about LaBarre qualifies.

The insanity defense has been used only rarely in New Hampshire; in recent years, several other high-profile murder defendants were unsuccessful with the approach. James Colbert, who in 1991 strangled his wife and suffocated his three young daughters in their Concord apartment, unsuccessfully tried an insanity defense. Colbert, who had been sexually abused as a child, "snapped" when his truck was repossessed, his wife left him and he lost his job.

There is also the case of Robert Blair who bludgeoned his wife and handicapped son to death with a hammer in a Concord hotel room in March of 1996. Blair had argued that he had gone into a trance while asleep in the hotel room where the murders occurred, and had heard the voices of God and an angel. He said God told him he would be "cast into the lake of fire" if he didn’t kill his family. He then heard the voice of an angel command him. Blair testified in his own defense and told the court, "In my opinion, I’m sane. I acted under the command of God," according to court documents. He was found guilty.

While Denner and Bailey have not disclosed the nature of the insanity defense for LaBarre, they have been vocal that their client has severe mental issues. "She killed these people because she was insane–clearly and utterly insane," Denner said in February. "We felt from the very beginning she was a sick individual."

Denner and Bailey are well-known in the Boston area with an impressive list of clients they have defended in the US and internationally. In a wrongful death suit, Denner currently represents the family of Milena Del Valle, the 39-year-old woman killed in a Big Dig Tunnel collapse. The 25-year veteran defense attorney is a graduate of Yale and of Harvard Law School. Bailey, a partner in the firm and the criminal division chief, was named one of Boston Magazine’s "Super Lawyers" for 2004, 2006 and 2007 and "New England Super Lawyer" for 2007.

Denner’s resume includes the successful defense of handyman Edmund Burke, who was charged with stabbing a 75-year-old woman 29 times in a Massachusetts park. Denner brought forward DNA evidence that showed Burke’s saliva did not match that found on bite marks on the victim. He represented Thomas Maimoni, who was charged with the first degree murder of Martha Brailsford, by weighing her down and throwing her over the side of his sailboat in the Salem (Mass.) Harbor where she drowned. Denner argued that the woman was killed after she was hit by the boat’s mast, causing Maimoni to panic before weighting her down and throwing her body overboard. Maimoni was found not guilty of first-degree murder but was convicted on a lesser charge. A true crime book, Counterpoint, was later written about the case.
Denner is also credited with helping to rewrite the extradition treaty between the United States and Great Britain.

In 2005, Bailey obtained an acquittal for a real estate developer charged with setting off a homemade explosive device at an apartment house in Lowell, Mass. Bailey argued that there were a number of other suspects more likely to have committed the crime than his client.

Denner and Bailey worked together to successfully defend Fall River, Mass. police officer David LaFleur in a federal trial in 2006. He had been charged with perjury and obstruction of justice for allegedly accepting cash from a mob boss in exchange for law enforcement information and then lying about it to a grand jury. Denner and Bailey argued that the government evidence was unreliable since it was based only on testimony of cooperating witnesses, whose sentences were reduced in exchange for their testimony. LaFleur was found not guilty on all counts.

Denner’s firm has been taking cases in New Hampshire for a number of years before the LaBarre case, including both federal and state criminal cases. "I love working in New Hampshire. There’s a pace of life that reflects itself a little in the pace of the courtrooms that is a lot more attractive to me," Denner said. "There’s a nice collegiality that you sometimes lose in the more metropolitan areas."

He sees New Hampshire’s sentencing as tougher than Massachusetts in many criminal cases. "I think New Hampshire sentencing is a bit harsher than Massachusetts and I think the [judges] mean what they say," he said, adding that the legal community is high quality for a small state. "I have found New Hampshire to be a very no-nonsense bar."

Denner and Bailey brought Exeter lawyers Rich Taylor and Alex Yiokarinis, both former NH Public Defenders who started their own firm last year, on as local co-counsel in the LaBarre case. Since joining the case, the two local attorneys are now of counsel for the firm of Denner and Pellegrino. The firm also lists New Hampshire attorney Robert McDaniel, a former federal prosecutor, as of counsel in New Hampshire.

"We’re very excited to have Rich Taylor and Alex Yiokarinis helping us." Denner said. "We like their experience, we like their expertise and we like their passion for the case. They’ll be helping us with the preparation in the case. They will have a very active role."

Jury selection in LaBarre’s case is scheduled to begin on May 5 in Rockingham County Superior Court. The trial is expected to last four to six weeks.

Lara Bricker, a freelance writer who is covering the trial for the Portsmouth Herald, writes occasionally for the Bar News. A former staff writer for the Herald, she also worked for several years as an investigator for the NH Public Defender. She published her first book in 2007. It is a collection of humorous newspaper columns entitled, How Do You Milk a Moose?

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