BRATTLEBORO — A judge has rejected an 11th-hour move by a former Brattleboro nursing assistant, charged with murdering one of her nursing home patients, to dismiss most of the charges.
Judge David Suntag rejected the motion from Jodi LaClaire’s attorney, Daniel Sedon, who was seeking to have related financial exploitation charges dismissed.
Suntag’s decision sets the stage for LaClaire’s murder trial to begin Monday in Brattleboro criminal court.
LaClaire, 39, formerly of Bennington, N.H., faces charges of second-degree murder, elder abuse and seven counts of financial exploitation of a vulnerable adult. She is accused of injecting 85-year-old Nita Lowery of Brattleboro with a fatal dose of insulin on March 23, 2009 — medicine Lowery had never taken in her life.
According to pre-trial information from medical experts, the insulin injection left Lowery brain dead.
Lowery’s cause of death on April 1, 2009, was hypoglycemia, or extremely low blood sugar.
Court records say that in the early morning hours of March 23, LaClaire tried to use Lowery’s credit card as Lowery lay dying in her nursing home room.
LaClaire is also charged with accessing Lowery’s financial accounts in the weeks following Lowery’s death, pocketing about $4,000.
Sedon, in a motion filed last week, had asked that all of the financial charges against his client be dismissed. He argued that two necessary legal elements were missing from many of the charges against LaClaire.
But Assistant Attorney General Ultan Doyle criticized Sedon’s reasoning in his response to the motion. He said that by Sedon’s reading of the elderly exploitation statute, there was no crime involved by LaClaire using a dead woman’s credit card.
“He argues that if a person willfully uses funds of a vulnerable adult, without legal authority, for wrongful profit, no crime has been committed, and that, similarly, if a person willfully acquires possession of an interest in funds of a vulnerable adult through the use of undue influence, no crime has been committed,” Doyle wrote.
Sedon had argued that the language of the state law was flawed, and that the state’s charges “do not contain a plain, concise and definite written statement” of an alleged crime.
Sedon argued that in order for a crime to have been committed, the state had to allege that not only had funds been used by an unauthorized person, but that the acquisition of the funds was by ‘‘wrongful means.”
LaClaire was the only nursing assistant on Lowery’s floor that night, court records stated.
According to court records, LaClaire had financial problems, mostly medical bills from Monadnock Community Hospital in Peterborough, N.H. There were also records of LaClaire selling pieces of jewelry at a pawn shop in Massachusetts.
In late August, the state dropped nine of the financial exploitation and attempted financial exploitation counts against LaClaire, leaving seven in place.
Doyle noted that he would not present evidence about another patient at Thompson House, the Brattleboro nursing home where LaClaire worked. That patient also ended up in the emergency room with extremely low blood sugar, a sign of an insulin overdose.
Like Lowery, “T.I.” did not take insulin and was not a diabetic. “T.I.” was hospitalized and recovered from her severely low blood sugar, but died 10 months later from natural causes, court records stated.
According to court records, LaClaire herself is a diabetic and used injectable insulin.
Jury selection is slated to begin Monday in the case, and the trial is scheduled for three weeks, as medical experts from as far away as England are expected to testify.
Once a jury is selected to hear the case, opening arguments and testimony from the first witnesses are expected.
Lowery, the widow of a former municipal judge, had lived at Thompson House, a nursing home next to Brattleboro Memorial Hospital.
Sedon, a public defender from Orange County, took over the murder case after the death of LaClaire’s first attorney, Matthew Harnett of Rutland. He is being assisted by Rick Ammons, a public defender in Windham County.
The case is being prosecuted by the Vermont attorney general’s office, with the prosecution team headed by Doyle and Assistant Attorney General Matthew Levine.
The charges against LaClaire were filed more than two years after Lowery’s death, and were investigated by the Medicare fraud unit at one point.
Neither Doyle nor Linda Purdy, the assistant attorney general on the Medicare fraud unit, would respond to questions about the case last week. Assistant Attorney General Cindy Maguire, chief of the criminal unit, couldn’t be reached for comment.
Sedon declined to comment about the case.
LaClaire’s nursing assistant license was revoked in 2012 by the state, which said she had abused a patient and “misappropriated patient property.” She had been charged with murder in July 2011 and her license was suspended shortly thereafter.
The attorneys in the case are expected to select 16 jurors and four alternates.
susan.smallheer@rutlandherald.com
