BENNINGTON — A local man sentenced to a lengthy prison term after being convicted of two counts of aggravated sexual assault on a 12-year-old girl is seeking to have his conviction and sentence vacated in a suit brought in Superior Court Civil Division.
Rusty Brooks is contending in a petition for post-conviction relief that there were errors or omissions during his three-day jury trial in 2011 that may have affected the outcome. He contends his conviction and sentencing were “constitutionally invalid, in violation of his Fifth, Sixth and Fourteenth Amendment rights under the United States Constitution, and Chapter One, Article Ten rights under the Vermont Constitution.”
Brooks is scheduled for a trial before Judge John Valente on his petition on Feb. 22-23 in Bennington Superior Court Civil Division.
In his petition, Brooks and attorney Patricia Lancaster, of the Vermont Prisoners Rights Office, contend that, “Specifically, the trial attorney’s representation fell below the prevailing standard of competence due to errors” listed in the petition.
During his sentencing in the trial court in Bennington, Brooks received a term of 25 years to life, following a jury trial. He had been ordered held without bail at the time of his arrest on the charges in 2009.
Brooks, 41, earlier attempted to have the verdict overturned on appeal, but the Vermont Supreme Court in 2013 upheld his conviction.
Brooks began his current effort in civil court in October 2013 by filing a petition for post-conviction relief pro se. He was later represented in his petition by the Prisoners Rights Office of the Office of the Defender General, and the petition has since been amended and enlarged.
A number of alleged errors by his counsel are asserted. Those include “failing to investigate so as to establish the falsity of the allegations of sexual assault by another;” failing to use expert testimony relative to whether a confession he gave to police was due to police tactics of interrogation; “failing to ensure that the issue of voluntariness was determined by the jury,” and “failing to seek a jury instruction on the issue of voluntariness, and to object to the court’s failure to so instruct the jury.”
The petition also asserts that Brooks’ counsel failed “to strenuously seek a continuation on the eve of the trial;” failed “to properly prepare Mr. Brooks for cross-examination;” failed “to use private funds collected from Mr. Brooks’ family to defend him,” and failed “to call an available witness who would have testified to exculpatory statements by complainant.”
Lancaster said this week that it is her policy not to comment on a pending case.
Reached by phone, Vermont Defender General Matthew Valerio said he has not been directly involved in the case and in general also wouldn’t comment on a pending matter.
However, Valerio said such petitions, which he said are becoming more common, focus primarily on new evidence that has come to light, evidence that wasn’t presented at trial that might have aided the defense or similar issues. In that way it differs, he said, from an appeal of a conviction or sentence to the Vermont Supreme Court, which typically focuses on errors during the trial.
Deputy State’s Attorney Alexander Burke, who is listed as representing the state in the current appeal, could not be reached Wednesday for comment. Former Deputy State’s Attorney Christina Rainville prosecuted the case during Brooks’ 2011 trial.
In an amended petition for post-conviction relief, which was filed in 2015 by Lancaster, there are more than two dozen assertions of incompetent representation by his trial counsel.
Brooks was represented during his 2011 trial by Lamar Enzor, of Rutland.
The petition asks the court to retain jurisdiction over Brooks’ case, vacate his conviction and sentence, and “order any other relief deemed just and equitable.”
In his earlier appeal to the Supreme Court, Brooks claimed in part that the trial court failed to suppress statements he made to police on Aug. 31, 2009, prior to his arrest.
However, the Supreme Court, in a 2013 decision, decided that, although Brooks made statements to police before being read his Miranda rights warning, he also made further statements after the warning, and then wrote a statement confessing to having had sex with the girl and expressing remorse.
The trial court had suppressed the pre-Miranda statements but allowed into evidence at trial those made by Brooks after the warning was given.
According to an affidavit filed by police after his 2009 arrest, the state Department for Children and Families was contacted by a relative of the girl, who said the girl told her via an instant messaging program that Brooks had been sexually abusing her since she was 10.
Bennington Police Detective Lawrence Cole said in the affidavit that he and a DCF worker were able to locate the girl at school and interviewed her for 90 minutes. Cole said the girl described incidents where she was sexually assaulted by Brooks, whom she knew.
At the subsequent trial, Enzor said Brooks denied having sex with the girl, but police had led him to make statements which they then labeled a confession. The attorney said police weren’t clear with Brooks on instructions for his written statement, and that Brooks thought he was summarizing the discussion with police.
The prosecutor, Rainville, said in her closing statement that it was clear that Brooks confessed, as he provided the same details the girl had used his own words in his written statement and expressed remorse.
