Updated: Judge Denies Fry Retrial

Judge William Carnes, Jr. denied a defense motion for a new trial Tuesday, sending convicted murderer Kimberly Fry back to the ACI. Fry, 38, was convicted in October of strangling her 8-year-old daughter, Camden, in August 2009.

Fry's attorney, Sarah Wright, argued Thursday and Monday that jury instructions in the original trial should have included the possibility that Fry acted with "diminished capacity," which could lead to the lesser charge of manslaughter. Wright pointed to evidence and testimony presented in the original trial — including Fry's medication usage, sleep deprivation, anxiety and depression — to support that Fry had acted with diminished capacity. Wright also claimed that Fry was "paralyzed" by her "evil impulses."

Agreeing with prosecutor Assistant Attorney General Stephen Regine, Superior Court Judge William Carnes Jr. found the evidence did not rise to the level of "diminished capacity" and upheld a previous decision to not include it in instructions to jurors.

Carnes pointed to witness testimony from Fry’s husband Timothy – who was in attendance at the courtroom for Monday’s hearing – in which he stated “nothing seemed wrong” on the night of the murder.

In her motion, Wright sought to use an email and letter sent by a juror to the court and to Wright herself after the trial had wrapped. Carnes did not allow the correspondence, but released the contents of the letter following the hearing.

In her email correspondence with Wright, the female juror – cited as Juror 51 – said she felt Fry was a “victim of the system.” The juror went on to state that she did believe Fry had acted with diminished capacity and would have convicted her of manslaughter and not second-degree murder if given the instructions on diminished capacity.

“I can envision a scenario that covers all the prosecution evidence to be interpreted in a very different way if diminished capacity had been considered,” said Juror 51 in one of her emails to Wright.

In her letter to the court, Juror 51 requested that her name be taken off future juror lists.

“Kimberly Fry is the unfortunate victim of ineffective health care, lack of adequate social support, and the inherent, if not unintentional flaws in the jury deliberation process,” said the juror in her letter to the court.

In his arguments against the evidence, Regine pointed to several court cases that ruled against the use of letters written by jurors after a trial for a new trial or mistrial. Regine also argued against Wright’s claim that Fry acted with diminished capacity, pointing to the fact that Fry was looking into buying a car that day and even prepared a sandwich for her daughter before the 8-year-old girl went to the beach with friends the day of the murder.

Regine also described the manner in which Fry murdered her daughter – by holding her hands over her nose and mouth for four to six minutes – as “an extreme indifference to the sanctity of human life.” As Regine recounted the manner of Camden’s death, Fry wept softly from her seat at the defense table.

“The evidence clearly reflects a hardening of the heart of the defendant,” Regine added.

Fry is set to be sentenced on Feb. 17 for second-degree murder, a crime that carries the possibility of life in prison.