The Curious Case of J. Nisbet

Recently, and with some public attention, a trial judge in Cumberland County’s court in Portland, Maine, denied a criminal defendant his right to court-appointed counsel. Sort of. Kind of. According to the coverage of the trial and its various hearings in the Portland Press Herald—and assuming the factual accuracy of these news reports—the defendant, in effect, forfeited his right to a court-appointed, publicly-funded attorney. Joshua Nisbet, the defendant, was convicted of armed robbery and sentenced to seven to fourteen years in prison and presumably will appeal on Sixth Amendment grounds. According to the linked article and the articles covering the pre-trial and trial phases of the case, Nisbet went through five court-appointed attorneys before the court denied him a sixth one. The first three evidently withdrew when attorney-client relations had become non-functional, and the last two withdrew after Nisbet allegedly threatened them with violence.

Notwithstanding the shorthand used in the headlines for this story, the defendant was never flatly denied the right to counsel; rather, the trial judge refused to appoint any more publicly-funded attorneys to the defendant. The order granting the last two attorneys’ motion to withdraw (available here) never makes this distinction clear; that may be because, in this instance, such a distinction would have been merely academic. An indigent defendant, by definition, cannot afford to retain a lawyer, and (apparently) no one volunteered to represent Nisbet pro bono. Nonetheless, Nisbet received some guidance from the two lawyers who were assigned to advise (but not represent) him at trial. I would guess that unusual arrangement was Justice Warren’s attempt to find a middle ground between a bare pro se defense (wherein a defendant represents himself or herself) and an actual representation by counsel.
Normally, this kind of story would merit a post by Luke Rioux, the Press Herald’s legal-news blogger. However, Rioux was one of Nisbet’s advising attorneys, and so he is unlikely to write about it. (In law school we learned about a little thing called attorney-client confidentiality, and I think that would apply here.)

Even the non-lawyers among us, thanks to Miranda warnings on police-procedural TV dramas, are aware that an accused criminal has a Constitutional right to an attorney. Also, as the boilerplate Miranda language states, “if you cannot afford an attorney, one will be provided for you.” This standard warning derives from the Supreme Court’s decision in the famous case of Miranda v. Arizona (1966), which is really a part of Fifth, not Sixth, Amendment doctrine. Still, it is true that the Sixth Amendment has come to be interpreted, in a series of decisions, to mean that someone accused of a crime must be provided with adequate legal representation if he or she faces possible incarceration. The pertinent clauses are: “In all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defence.”

The key questions for appeal in this case are whether Nisbet was denied his right to adequate counsel by the judge’s decision to give him quasi-counsel and whether an indigent defendant can be deemed to have waived or forfeited the constitutional right to counsel by misconduct. I know of no other trial where a pro se defendant was assigned legal advisors in the courtroom but denied their participation in the trial—and I studied scores of criminal cases on the way to becoming a lawyer—and, thus, it would be pointless speculation if I made a guess about how the appeals courts will treat this arrangement. However, the second question may prove critical when Nisbet’s case reaches the Maine Supreme Judicial Court. It could also be critical if it eventually is heard by the U.S. Supreme Court, which apparently has no precedent that addresses this exact issue. On appeal, the courts may simply determine that, despite Nisbet’s actions, he did not get a fair trial without actual representation by an attorney at trial; a retrial would likely follow. However, the courts may decide that in rare circumstances an indigent defendant can be deemed to have waived his or her right to court-appointed counsel and then determine that Nisbet’s lack of cooperation with assigned counsel effected such a waiver in his case. Such a decision could rely on parallels to other constitutional rights, such as the right to trial by jury or the right to remain silent, that criminal suspects and defendants willingly waive every day. The difference here, though, is that the defendant did not know that he was waiving his right to assigned counsel when he did so.

If Justice Warren’s order is upheld on appeal, it would mark a major departure in constitutional jurisprudence and would require some clear guidance for trial courts. If the order is overturned, it may be a long time before another trial judge makes the controversial decision to refuse to assign counsel to an indigent criminal defendant, no matter how outrageous the alleged conduct might be.


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