Owen Labrie

OWEN LABRIE

CONCORD — Convicted former St. Paul’s School student Owen Labrie lost his first appeal to the New Hampshire Supreme Court on Tuesday, but his lawyer said the decision bolsters the second Labrie-related appeal: that Labrie’s lawyers were ineffective during his 2015 trial.

In a 3-0 decision released on Tuesday, the Supreme Court upheld Labrie’s conviction on misdemeanor assault charges and a felony charge of using a computer to entice a minor into sexual activity.

The judges, however, rejected two of the three appellate issues on the grounds that Labrie’s lawyers had the ability to address the matters during trial but did not do so. Labrie’s trial lawyers did not object when a prosecutor mischaracterized scientific testimony dealing with semen on underwear. And Labrie’s lawyers did not pursue possible problems of partiality of a state witness, even after a judge expressed misgivings about an initial ruling and encouraged defense lawyers to do so.

“I definitely think the decision (on Tuesday) highlighted some areas where his trial counsel was ineffective,” said Manchester lawyer Jaye Rancourt, who is handling the appeal. The Supreme Court is expected to hear the ineffective counsel case on Nov. 28.

Tuesday’s decision came less than two months after Rancourt asked the court to throw out Labrie’s conviction stemming from the high-profile trial that delved into the culture at the elite boarding school and its game of sexual conquest termed “Senior Salute.”

Labrie remains free on bail, which is only in effect during the initial appeal. Rancourt expects that the Merrimack County Superior Court will soon call Labrie before a judge to arrange for him to start serving a year-long sentence on the misdemeanor charge.

That could be forestalled if Rancourt asks the Supreme Court to reconsider the ruling. She has 10 days to file for reconsideration and has not decided whether to do so.

In a statement, the New Hampshire Coalition Against Domestic and Sexual Violence praised the decision.

“In order to change the existing culture that minimizes sexual violence and silences survivors, we must continue to hold offenders accountable and demonstrate to victim/survivors that we take these crimes seriously,” Public Affairs Director Amanda Grady Sexton said. She also praised the victim, Chessy Prout, for coming forward.

The appeal hinged on three issues:

The mischaracterization of semen on underwear. Rancourt had argued that the prosecutor incorrectly stated that sperm did not seep through underwear. Rancourt had argued that Judge Larry Smukler should have intervened when the prosecutor made the statement. Not so, the Supreme Court ruled. The justices referred to a recent ruling in an unrelated case and said the responsibility to challenge an inaccurate statement during closing argument rests with the defense counsel. Labrie’s lawyers had not done so. “We emphasized the role of defense counsel in objecting to statements made by the opposing party during argument,” Chief Justice Robert Lynn wrote. “A decision not to object may be a trial strategy that should not be intruded upon by the trial court in the absence of patently egregious circumstances.”

The trial judge’s reconsideration of an initial bench ruling. Rancourt had also faulted Smukler for reversing a decision he made during trial to sustain a prosecution objection. The issue dealt with a St. Paul’s student who was testifying as a state witness. The student himself was suspected of having sex with an underaged St. Paul’s student and had a reason to curry favor with Concord police, Labrie’s lawyers told the judge. Later that day in chambers, Smukler said he was rethinking his decision and invited Labrie’s lawyers to move forward with questions related to potential bias and motives to be untruthful. “The trial court presented defense counsel with a second opportunity to put the testimony before the jury, and defense counsel voluntarily assumed the responsibility to re-raise the issue. When counsel failed to do so, he waived the defendant’s right to advance this argument on appeal,” Lynn wrote.

Whether Labrie’s texts and emails showed intent to sexually assault Prout. Rancourt had argued that Labrie used the computer only to schedule meetings with Prout and that the computer communications alone did not reveal intent to commit the crime. But the justices noted that evidence at trial showed Labrie’s intention to “slay” Prout, based on conversations with students and others. Justices also noted he brought a condom and blanket to their bell-tower rendezvous. “There was ample evidence of the defendant’s intent to ‘solicit, seduce, lure, or entice’ the victim to engage in sexual penetration throughout early 2014,” Lynn wrote.

Rancourt said the case highlights the poor wording of the computer solicitation law. Teenagers who use a computer to send invitations to fellow students can end up convicted of a felony, she said. “I’m hoping the Legislature will take another look at (the law),” she said.

Smukler did not sentence Labrie to prison on the felony computer solicitation conviction, but Labrie faces a minimum of 15 years as a registered sex offender.

mhayward@unionleader.com