Brooks makes his case to change plea

Jeffrey Allan Brooks, 52, Alexandria, who is charged with the second-degree murder of Diane Fortenberry, 51, Osakis, took the witness stand March 7 in a hearing to change his plea to not guilty.

Whether he will be allowed to do so remains uncertain.

Judge Jay D. Carlson requested the defense and prosecution to submit written positions within 10 days of the hearing.

In previous court appearances, Brooks alleged that the court-appointed attorneys had misrepresented him and that he was pressured to accept a guilty plea bargain.

Brooks testified last Wednesday that he had received an offer of 480 months in prison.

“I didn’t want to accept it, I probably wasn’t going to live that long anyway so I didn’t want to accept it,” Brooks said.

Upon further examination, from his specially appointed attorney Neil Tangen, Brooks said that first plea offer was made on November 15, 2011 with both of his attorneys, Jim Austad and Matt Holson, present at the Todd County Detention Center.

Brooks then said he was informed on November 17 that the offer still stood and that if he didn’t take it the state’s prosecution team, David Voigt and Kristi Nielsen, would take the case to a grand jury for a possible first-degree murder charge.

Brooks maintained that he didn’t want to take the deal.

“I told them to tell them [the prosecution] to go to the grand jury,” Brooks testified.

However, further testimony revealed that another plea bargain was offered November 18 for 364 months

It was at this point that Tangen introduced the letter written by Brooks that alleged misconduct on the part of his former court appointed attorneys.

Voigt did not object to the letter being submitted.

When cross-examined by the state, Voigt asked Brooks if he understood what the plea bargains meant.

“You understood that?” Voigt asked.

“Yeah, I told them I probably wasn’t going to live that long anyways,” Brooks responded.

The state then asked Brooks if he had instructed his attorneys to not take part in anymore plea negotiations.

“No I didn’t,” Brooks answered.

The prosecution then asked again about the directions he gave to his attorney’s regarding the possibility of a grand jury investigation.

“Did you instruct your lawyers to tell the prosecutors that?”

Brooks answered, “Yes.”

Referring to the letter submitted to the court, Voigt asked Brooks if he was concerned that didn’t happen.

“Yes, I was concerned,” stated Brooks.

“Ultimately you told your lawyers that you did want to enter that guilty plea?”

“I can’t remember, I might have; I might not have,” Brooks answered.

For the record, Brooks did plead guilty, and a sentencing date had been scheduled for early February until Brooks submitted his letter and asked to change his plea.

“And you meant it at that time?” Voigt asked, regarding his guilty plea.

“I was tired, tired of the stress and constant phone calls to them [Austad and Holson],” Brooks answered.

“I was just kind of confused.”

“You’re saying you came up to court not planning to plead guilty?” Voigt responded.

“At the time you entered your guilty plea you understood that the judge could give you 480 months correct?”

Brooks indicated that he did understand that.

“Did your attorneys tell you that?”

“No, they didn’t tell me nothing,” Brooks said. “The only conversation we had was 364 months minimum.”

However, Brooks did admit that his attorneys did stress the possibility of a higher sentence, especially if it went to a grand jury.

“They hammered that,” Brooks said.

Voigt then asked if this was a matter of him simply changing his mind.

At this point Tangen objected, claiming the prosecution was on a fishing expedition and leading the witness.

The objection was overruled.

Upon direction to answer the question, Brooks said “yes.”

“I was tired; they had been pressuring me to plead guilty, and I was tired,” Brooks explained.

The prosecution then proceeded to ask who had pressured him.

Brooks responded that his attorneys along with the prosecution, albeit through his attorneys, were pressuring him.

Voigt then asked what was the first thing they did to pressure him.

Brooks said he told them he wanted to fight for unintentional murder, but that they told him he was going to get the full time.

The prosecution continued searching for examples, asking for the next thing the defense had done.

Brooks was unable to give a specific occurrence or example, however he stated that everything happened over the phone and that their conversations were short.

“All the conversations were short and quick, they never explained the outcomes,” Brooks claimed.

“Did they ever tell you that if you didn’t plead guilty that they wouldn’t represent you the best they can,” the prosecution asked.

Brooks answered “yes.”

At this point the prosecution had no further questions for Brooks.

Then, Voigt asked the court to deny Brooks’ request to change his plea based on their belief that he hadn’t met his burden to do so.

Judge Carlson denied the request.

At this time, the public defenders were put under examination.

A question of attorney/client privilege was cleared up and a standing order was given by Judge Carlson that Holson and Austad were to answer the questions as they pertained to Brooks’ testimony, which implied a waiving of those rights.

Tangen, however, said he would advise his client to not waive attorney/client privilege at all.

Carlson said the order would stand, but continue on a question-by-question basis as they related to the dates given by Brooks.

Both Austad and the other public defender, Holson, testified that they believed Brooks wanted to plead guilty, with the actual length of the sentence to be argued at the sentencing hearing.

Their separate testimonies corroborated with each other in that before the initial plea hearing, they said Brooks didn’t say he didn’t want to plead guilty. Along with that, both also testified that it was their belief that Brooks understood the plea offer on the table.

When it came to the issue of Austad and Holson pressuring Brooks to accept a plea, the two independently testified that they did not pressure Brooks in any way.

Ultimately they said the decision was left up to Brooks as to whether he would plead guilty or innocent.

Austad and Holson also said that they did counsel Brooks concerning the various outcomes of pleading guilty or leaving it to go to trial.

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