Forfeiting The Right To Counsel

Joshua Nisbet had a lawyer. Then another lawyer. And another. Then a couple more. And then he didn’t.  The Sixth Amendment guarantees defendants a laundry list of rights, the assistance of counsel among them.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Yet, Cumberland Count Justice Thomas Warren ordered Nisbet to trial without a lawyer, and the Maine Supreme Court is being asked whether this is constitutional.

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.

At trial, Justice Warren assigned two “standby counsel,”  Luke Rioux and Mark Peltier, to assist Nisbet, but only Nisbet was allowed to speak.  He didn’t do a great job, though in fairness, the case against him was a slam dunk.

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.

How did it come to this?  Luke explained that it wasn’t until trial that Nisbet came to recognize that trials are about evidence, not bizarre conspiracy theories about the police, which lawyers are somehow duty bound to present upon demand of a difficult and intransigent defendant.  Nisbet was not a dream client.

By the time Nisbet was forced to prepare for trial in earnest, the craziness gave way to the seriousness of what he was facing.

Strangely, the fact that he was forced to prepare and pursue his own defense made him come back to reality. He realized that the theories he wanted to pursue were not going to be productive and so he conducted a pretty straight ahead sufficiency of the evidence kind of defense.

Luke found Nisbet pleasant and cooperative at trial. Yet, Nisbet was left to his own devices in crossing witnesses, arguing his cause to the jury after his fourth and fifth lawyers moved to withdraw following a threat.

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.

On appeal, Nisbet, represented by Jamesa Drake, contends that this was a Sixth Amendment deprivation.

“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.”

The Maine Association of Criminal Defense Lawyers filed an amicus brief, contending that standby counsel is insufficient, as there are no uniform guidelines for the duties of counsel.

The prosecution argues that Nisbet was warned.

“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 constitutional right to assistance of counsel is certainly subject to waiver, such as when a defendant chooses to go pro se. But can it be forfeited?  It presents a conundrum.  After all, if a defendant refuses to cooperate, indeed threatens, his assigned counsel such that he burns through lawyers, can it reach a point where the court can say “enough”?

Where is that point?  What role does a defendant’s mental health play?  The problem may grow significantly as people grasp onto some of the insane notions about law found on the internet and demand that lawyers pursue their ridiculous theories. Lawyers, of course, are prohibited from pursuing such frivolous defenses, and the fact that defendants insist, whether backed by threats of violence or mere intransigence, doesn’t change that.  And doesn’t make the rift between lawyer and client go away.

While defendants are entitled to counsel, they are not entitled to hold the system captive until they get a lawyer who will be nothing more than their mouthpiece, pursuing whatever bizarre theories they insist upon.  Should the right be subject to forfeiture? If so, at what point?  These have proven to be very difficult questions.

The irony here, of course, is that Nisbet would have done well to have a lawyer as capable and dedicated as Luke Rioux represent him, and by the time Luke was assigned to the case, Nisbet had shed much of his craziness after being forced to take a hard, and very real, look at his situation.  But by that time, the judge had ruled that the right to counsel had beenforfeited and Nisbet was, essentially, on his own.

Had Nisbet not wrapped himself up in bizarre conspiracy theories and demanded that lawyers do his bidding, the scenario would have played out very differently.  By the time Nisbet realized that this wasn’t a game for nutjobs, it was too late.

5 thoughts on “Forfeiting The Right To Counsel

  1. RKTlaw

    Currently standby in a case. NC Supreme Court recognizes forfeiture of counsel. But in my case Defendant is going the sovereign citizen/UCC route and, while rejecting meetings and mail from me, won’t affirmatively waive on the record. Judge has ruled that that constitutes forfeiture

    1. SHG Post author

      Your personal standby story has moved me deeply. I laughed. I cried. It became a part of me. Not the corporate me, but the real man me.

  2. Keith

    Is there any kind of formal way to remove the right to counsel or is it just a Judge yelling at a defendant to cut it out, or else? I’ve seen you describe at length the coercive flaws with the list of rights that Judges make sure defendants understand during allocations, but at least they make sure they are understood.

    Maybe this guy, upon hearing that he’d lose the ability, the knowledge and the experience that comes with competent counsel, may have wished to stop being “that guy”, but it seems to me like punishing him with deprivation of counsel also punishes the system and makes years of appeals a near certainty.

    1. SHG Post author

      That’s part of the question before the Maine Supreme Court, what are the rules to be applied before a judge holds that a defendant has forfeited his right to counsel.

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