AUGUSTA –– Justices of the Maine Supreme Judicial Court peppered lawyers with skeptical questions Wednesday during an appeal hearing for 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, was so uncooperative with a series of court-appointed lawyers leading up to his trial on an armed robbery charge last year, including threats to his fourth and fifth attorneys, that a judge ordered him to represent himself before a jury.

Nisbet, who was convicted of the charge last May 1 and sentenced to serve seven years in prison, is now seeking to have his conviction overturned on grounds the judge violated his constitution right to be represented by an attorney in a criminal prosecution and is seeking a new trial.

His appellate lawyer, Jamesa Drake, argued that the trial judge, Justice Thomas Warren, could have taken other measures to deal with Nisbet’s uncooperative behavior other than forfeiting his right to an attorney against his wish.

“He was already in jail, so how do you think the trial court could have changed his behavior?” Justice Ellen Gorman asked Drake. “Starving him? What option did the court really have?”

But other justices of the state’s highest court were equally skeptical of Assistant Attorney General Leanne Robbin’s argument that Warren made the right decision that Nisbet had forfeited his constitutional right by his behavior.

“So people with volatile personalities, temper issues and a tendency to shoot their mouths off really can’t have attorneys,” Justice Andrew Mead asked Robbin.

The Supreme Judicial Court heard the oral arguments for the appeal at the new Capital Judicial Center in Augusta, using the restored historic courtroom from the annexed Kennebec County Superior Court. The courtroom was first used by the panel of justices from the state’s highest court in 1830 and had not heard an appellate case there in nearly 30 years.

The court made no immediate ruling in Nisbet’s case, but when it does so the 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 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.

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.

Justice 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.

Copy the Story Link