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Judge denies Fry's request for a new trial

November 18, 2011


NORTH KINGSTOWN – Over a month since a grand jury found former North Kingstown resident Kimberly Fry guilty of second-degree murder of her daughter Camden, a judge denied her request for a new trial Monday afternoon in Washington County Superior Court.
After the October verdict, Fry’s defense team quickly began the appeal process and requested a new trial on the basis that instructions given to the jury at the time they began deliberation should have included an explanation of “diminished capacity”, something the defense feels Fry was experiencing when Camden died.
If the jury were given that explanation in their jury instructions, the defense said, and based their verdict on “diminished capacity”, Fry could have been charged with manslaughter rather than second-degree murder.
Diminished capacity is defined as a person’s mental state, a reduced ability to understand, usually the result of mental retardation, alcohol or drug intoxication, or some other factor, which exists at the time of a crime that is not sufficient to support an insanity defense but that raises the issue of whether the defendant was able to form the intent to commit the crime.
“There was ample enough evidence that proved diminished capacity,” Fry’s defense lawyer Sarah Wright said. “I feel this court committed an error of law by not submitting those instructions.”
Testimony throughout the trial included Fry’s estranged husband Timothy and family therapist Wendy Phillips painting a picture of a heavily medicated Kimberly. Furthermore, Kimberly had ingested a large amount of prescription medications the night Camden died.
“The state failed to introduce clear evidence as to whether she took those medications prior to or after Camden died,” Wright claimed. “There’s no way of actually knowing. Her actions that night were different from her normal actions due to her diminished capacity state.”
In a letter to Judge William Carnes, Jr., female Juror 15, whom Carnes requested not to identify, felt Fry was the “unfortunate victim of ineffective health care, lack of adequate social support, and the inherent, if unintentional, flaws in the jury deliberation process.”
The juror also reached out to Wright in an email dated Nov. 7, where she hoped the defense team was successful in requesting a new trial. She felt that Fry was a “victim of the system and didn’t agree with jury instructions and would have decided differently if the jury instruction had been otherwise.”
Wright said in court Monday afternoon that neither she nor anyone in her office initiated the email correspondence and that she is unaware of how the juror obtained her email address.
Wright responded to the email on Nov. 8 with an explanation of diminished capacity in which she requested but the court declined to give to the jury.
The juror responded to Wright’s email later that same day writing that she thought Fry “may have had diminished capacity” to recognize the level of violence involved and that she wouldn’t have found her guilty beyond a reasonable doubt of second-degree murder.
She also said that if she had some expert witness clarification from a pediatric neurologist, rather than a pathologist, it would have been possible that she might have decided Fry was not guilty. The juror further wrote that without that additional input, she would have decided guilty of manslaughter.
“She (Fry) elected not to testify,” said Rhode Island Assistant Attorney General Stephen Regine. “The arguement that her depression was so bad is not supported in the record. There are no questions asking if she suffered from depression, there was no evidence that it was debilitating.”
Regine further commented that a week before Camden died, her therapist said she had improved and that days before the murder, Fry and her husband were looking for a new car.
“Where was the diminished capacity?” Regine asked. “The day of the murder, Camden was at the beach with friends and then after returning was playing at her house with friends.
“Later in the day when Timothy left for hockey, Kimberly and Camden were watching T.V. There was no evidence of her having diminished capacity. Manslaughter shouldn’t have even been a consideration.”
Regine told the court Monday afternoon that Kimberly acted willfully and intended to kill Camden and that she had a hardness of the heart. During that statement, Kimberly became visibly upset, shaking her hand and crying.
“Judge, I urge you to deny the motion,” Regine said. “This is the right verdict.”
Wright argued back that when Timothy called Kimberly after the hockey game, her voice was “groggy” and not normal to him. Wright stated there had been enough evidence that she was heavily medicated because of an attempted suicide where she ingested a large amount of medications.
When the jury began deliberations, they were given two choices: acquittal or conviction of second-degree murder.
Second-degree murder is defined as a murder that is not premeditated or planned in advance.
Carnes briefly went over some of the evidence and said that while reviewing testimony, he kept asking himself what was her state of mind at the time of the killing.
“Was her will so paralyzed?” he said. “Her husband testified that nothing alarmed him that evening. Even though the two slept in separate rooms because of her sleeping condition, she asked him to stay the night together. And Kimberly had the presence of mind to place a teddy bear under Camden’s arm. I find there’s not enough evidence that her will was so paralyzed. Therefore, I find there’s not enough evidence to warrant a new trial.”
Fry sat motionless as the judge made his decision.
A pre-sentencing hearing is scheduled for Jan. 12 and sentencing is scheduled for Feb. 17.
Messages to Sarah Wright were unanswered.

Southern Rhode Island Newspapers
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