The Maine Supreme Judicial Court will hear an appeal Wednesday from Joshua Nisbet, who may be the first defendant in Maine to be stripped by a judge’s order of his constitutional right to be represented by an attorney at his trial.

Nisbet, 38, of Scarborough, has no legal training and said repeatedly before his April 2014 trial on a robbery charge in the Cumberland County Courthouse that he didn’t want to represent himself.

But Justice Thomas Warren ruled that after Nisbet’s uncooperative behavior with five previous court-appointed attorneys, including threatening his fourth and fifth attorneys, that he had forfeited his constitutional right to another lawyer.

Nisbet is seeking to have his conviction overturned and his case sent back to the trial court, where he could possibly have a new trial, this time represented by an attorney.

The high court will hear oral arguments Wednesday at the new Capital Judicial Center in Augusta. Its ruling could have broad implications for all criminal defendants in Maine who cannot afford to hire their own attorney. If the court denies Nisbet’s appeal, it could set a precedent weakening citizens’ constitutional guarantees under the Sixth Amendment to legal assistance in criminal prosecutions. Legal filings in the appeal cite only out-of-state examples of similar cases, with no precedents in Maine.

AT WHAT POINT IS RIGHT LOST?

Nisbet is represented in his appeal by Jamesa Drake, an adjunct professor at the University of Maine School of Law who has a private law practice in Auburn. She has argued that a defendant’s right to a lawyer is essential to protect him from being deprived of other rights at trial.

“The central question on appeal is whether the trial court was wrong to force the defendant to go to trial without a lawyer. It was,” Drake said in her written arguments submitted to the court. “A reviewing court must indulge every reasonable presumption against the waiver of right to counsel and, on this record, defendant did not waive his right to counsel.”

At Nisbet’s trial, he had to make his own opening statement and closing argument before a jury and cross-examine witnesses. The judge appointed him two standby lawyers, Luke Rioux and Mark Peltier, but only Nisbet was allowed to speak before the jurors. The standby attorneys were only allowed to sit at the defense table with him and whisper advice in his ear.

Nisbet’s defense approach at trial seemed haphazard at times. He cross-examined his own mother, who was called as a witness by the prosecution, but declined to ask a single question of the lead investigator in the case against him, South Portland Detective Sgt. Stephen Webster.

The jury found Nisbet guilty of robbery after a four-day trial. He is now serving a seven-year prison sentence at Bolduc Correctional Facility, a minimum-security prison in Warren.

But the prosecutor at Nisbet’s trial, Assistant District Attorney Bud Ellis, argued that the judge was correct in finding that Nisbet had forfeited his right to counsel by his “outrageous behavior” toward his attorneys in the three years leading up to trial.

“The right to counsel is not unlimited, and in a serious situation such as this one, a trial court must be able to say enough is enough,” Ellis wrote.

Nisbet spent nearly three years in the Cumberland County Jail in Portland before his trial on a robbery charge for using a knife to hold up the Mobil Mart on Main Street in South Portland on July 15, 2011.

Each of his attorneys sought to withdraw after citing serious breakdowns in the attorney-client relationship. Nisbet said each of the lawyers had begun to work against him.

Judge Warren ultimately ruled that Nisbet would have to represent himself at trial after Nisbet allegedly threatened his last attorneys, Jon Gale and Neale Duffett, when they met with him in the jail last Feb. 26.

According to Gale’s and Duffett’s motion to the court seeking to withdraw, Nisbet told them “I don’t care if I get 15 years, when I get out, I will be outside your house with a high-powered BB gun and I will take your eye out.” Nisbet denies making the threat, but is not making that a point of contention in his appeal.

The Maine Attorney General’s Office also weighed in on the appeal by filing an amicus curiae – friend of the court – brief arguing that Nisbet had been warned by the judge that he would be given no other lawyers if he did not cooperate with Gale and Duffett.

OTHER PARTIES MAKE THEIR CASE

“Given that Nisbet intentionally engaged in the conduct after being warned of its consequences, the court did not err in concluding that he had lost his right to counsel, whether through ‘waiver by conduct’ or forfeiture with knowledge,’ ” Assistant Attorney General Leanne Robbin wrote.

The Maine Association of Criminal Defense Lawyers also filed a brief, arguing that appointing standby attorneys to assist defendants in representing themselves against their will is insufficient.

“Until clear, uniform guidelines are provided by this court regarding the duties and ethical obligations of standby counsel, trial courts should not appoint standby counsel,” wrote student attorney Patrick Lyons of the Cumberland Legal Aid Clinic at the University of Maine School of Law. He was joined in the filing by law professor Christopher Northrop and attorney David Bobrow, who co-signed the brief.

The American Civil Liberties Union of Maine also filed a brief in the case, arguing in general against the practice of forfeiting a defendant’s right to an attorney, without specifically addressing Nisbet’s case.

 

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