Author: zacharyjsmith

I'm an attorney from Maine. You can reach me at

From the Supreme Court: Get a Warrant, Officer

Violent criminals are out there. I get it. A number of them have even inflicted violence on me, giving me concussions, cuts, bruises, a broken jaw, a facial scar, and a nerve-dead tooth. Some people really should be kept separate from the rest of us, for our safety, and some kind of incarceration is probably an unavoidable, if ugly, social practice. While I certainly do not espouse Hammurabi’s Code (famous for its “eye for an eye” rule, number 196), I also do not think anyone has ever accused me of being “soft on crime.” Nonetheless, before society exacts its vengeance or punishment or safety measure (depending on your theory of criminal justice), it is only fair (and constitutional) that the legal system actually makes sure the accused person is guilty. In the process of enforcing the law and determining guilt or innocence, the system also must respect the constitutional protections provided to every criminal suspect in the USA. Despite the impression one may get from TV shows, procedural protections do not exist merely as technicalities that lawyers can exploit to help guilty people get away with their crimes. They are in place to protect all of us from potential abuse of power by the government in all of its incarnations. And they protect us no matter which state we are in.

Yesterday (June 25, 2014) the US Supreme Court released a nearly unanimous decision in a major criminal-procedure case. (Actually, there were two cases combined into one decision now known as Riley v. California.) I have not read anyone’s take on it yet, but to me it looks like a strong ruling in favor of the search warrant “requirement,” not to mention privacy protection. This week the conservative Court has issued a decision that supports the Fourth Amendment demand that law enforcement officials, whether small town patrol cops or FBI agents, get a search warrant.

For those who need a primer or reminder: in general, government officials, including detectives, are required by the Fourth Amendment to obtain a search warrant, supported by probable cause to believe that evidence of a crime will be found and issued by a magistrate (usually a judge), before searching a person’s home, vehicle, body, et cetera. The Supreme Court has fashioned an impressive array of exceptions to the rule, and so, in practice, cops, jail guards, school principals, and others often are free to search without a warrant. In fact, when a sergeant from the Portland (Maine) Police Department spoke at my criminal procedure class in law school, he stated that he rarely had to fill out a warrant request. Why? In the field, a police officer is permitted to search someone in the process of arresting him or her, to ensure that he or she does not have a weapon that could be used against the officer and to preserve evidence. (This is called a search incident to arrest.) Also, it is often so obvious, prior to arrest, that someone has contraband—it may be a bag of cocaine sitting on the floor of a car that has been pulled over for a traffic violation—or other evidence of a crime—say, empty bottles visible in a drunk driver’s car— that the warrant requirement has been negated by an “exigent circumstance.”

When someone is arrested, the cops are permitted by the constitution (and, presumably, required by department policy) to search the arrestee. During that search, the officer may find and seize a cell phone or other electronic device. The officer may then wonder whether the device has evidence of crime or a lead to investigate further. Until yesterday, it was unclear whether the Fourth Amendment requires an officer who finds a cell phone to obtain a search warrant before perusing its contents for things like call histories and text messages, because the law is generally slow to respond to changing technology. Would searching someone’s smartphone be analogous to searching his pockets for weapons or to entering his home and looking around? The Court has now established that law enforcement generally must obtain a search warrant before examining the contents of a cell phone or similar device; and, in the event that a warrantless search is executed when the Fourth Amendment requires a warrant, any evidence obtained thereby is subject to exclusion from any criminal case that ensues.

Some people undoubtedly consider the exclusionary rule as something that helps criminals “get away with” violations of the law. They may be angry that, for instance, the two defendants convicted of charges including illegal possession of a firearm and attempted murder got their convictions reversed. In reality, a search warrant is not especially difficult for officers to get, and, in a case of truly exigent circumstances, evidence obtained without a warrant may still be admitted at trial. Moreover, the vast majority of criminal cases never go to trial. It makes more sense, in my opinion, to be upset at the officers who failed to get a search warrant and, thus, damaged a criminal case, than at the lawyers and judges who are upholding a constitutional protection that exists for all of us. If you get arrested for something foolish or erroneous—driving on a suspended license or an incident of mistaken identity, for example—do you really want cops looking through your iPhone?

The lesson for law enforcement from this case is clear and emphatic: when in doubt, get a warrant. For non-lawyers out there, the lesson is: do not simply allow the police to invade your privacy on the off chance that they will discover evidence that you committed a crime. And criminal defense attorneys have a bright-line rule that disincentivizes cops from overstepping boundaries on their well-intentioned mission to solve crimes.

A couple of side notes: the decision amusingly describes three precedents that cover this area of law as “The search incident to arrest trilogy” (see page 8). Also, the majority opinion contains some analysis that uses the Court’s relatively recent (and strange) habit of examining constitutional rights through the lens that the Constitution’s Framers theoretically would have used if they were looking at the same case. That is, the Court proceeds to its “balancing of interests” discussion only after determining that we lack “more precise guidance from the founding era” (see page 9) and also places the decision in the context of the colonial era (see pages 27-28). I find Originalism maddening, for a few reasons, but that would be a post for another day. And the Court manages to preserve U.S. v. Robinson, a case in which an officer, without a warrant, searched an arrestee’s cigarette pack and found drugs but was determined not to have violated the Fourth Amendment, without expanding its reach. The Court here (on page 11 and elsewhere) states that a phone can be examined to make certain it is not concealing a weapon, but its contents cannot be searched without a warrant. Finally, the decision includes a long, fact-specific discussion (on pages 12-15) that, in effect, rejects the argument that allowing officers to search a device’s contents will prevent “remote wiping” or similar means of evidence destruction.

Gary Prolman, et al

Saco lawyer Gary Prolman is in serious trouble. In April he pleaded guilty to money laundering and now faces a possible sentence of years in federal prison and a large fine, in addition to the 177 grand he already forfeited. Prolman found himself involved in—or chose to involve himself in—a fairly complicated criminal enterprise. Without getting into the details, which are mostly irrelevant for the purposes of this post, I would say that the enterprise was not as sophisticated as, say, a large-scale mortgage-backed securities scam that would bring down large firms and leave millions of people holding the bag but was clearly more complex than many a Ponzi scheme or a typical jewelry heist-and-fence plan. And everyone involved, at the very least, had a more plausible chance at getting away with it than the bank executive who used a company credit card at strip clubs.

One relevant part of the case is that Prolman, in effect, went into business with a client. The crux of his defense theory, as far as I can tell, is that he was unaware of the illegal origins of the money he got from a client who was involved in drug smuggling and related crimes. Even if he had actually been unaware of the illegal nature of his client and partner’s income, the prosecution could pursue a theory of willful blindness—essentially, Prolman could not simply turn a blind eye to the criminal origin of his income and later plead ignorance, if it would be apparent to a reasonable person that the money came from a criminal activity. Either way, Prolman does not dispute that he went from representing David Jones to making business deals with him. The government has also accused Prolman of “smurfing,” wherein someone deliberately makes many small cash transactions that, in total, would trigger a federally-required report if made all at once, with the goal of avoiding the reporting requirement. Finally, in a separate but related criminal case, a prosecution-friendly witness (Raymond Paquette) testified at the trial of alleged co-conspirator Steven Olson that Prolman was more deeply involved in, and aware of, the criminal enterprise than Prolman has admitted to thus far; that witness is not the most credible, considering that he appears to be testifying in exchange for a reduced sentence from the government. As I mentioned in a previous post, criminal informants are useful tools for law enforcement and prosecution, but many of them lie, even under oath, to save their own necks.

Prolman may not face any more criminal charges stemming from his involvement with David Jones, but he almost certainly will be suspended from the practice of law. Going into business with a client could have sufficed to bring on an investigation by the Board of Overseers of the Bar—see Maine’s Professional Conduct rule 1.8(a), which prohibits this kind of arrangement, in many situations, as a conflict of interest—but Prolman’s guilty plea to a serious crime probably makes that issue irrelevant, per M.R.P.C. 8.4(b). Also, the smurfing accusation and the accusation under oath made by Paquette could be considered by whichever panel of bar overseers hears his case, and both involve alleged violations of M.R.P.C. 8.4(b)-(c); those rules prohibit dishonest, fraudulent, deceitful, unlawful, and criminal acts by members of the Maine bar. I do not know what defense Prolman and his counsel (Peter DeTroy) have in mind when Prolman faces the Grievance Commission, but I would speculate that, because he has already admitted in court to violations of the rules of professional conduct, he will focus on the punishment. He may get a shorter suspension, rather than an open-ended one (which can take over a decade to return from) or an outright disbarment, but it seems unlikely that he will get only a formal reprimand.

A Titillating White Collar Crime Story

Jeffrey Burnham, formerly a low-ranking executive for TD Bank and Kennebunk Savings in southern Maine, has pleaded guilty to embezzling almost 220 grand from TD Bank. He used a corporate credit card for seventy-two personal expenses in four states in 2011 and 2012. Ho hum, so far, unless, like me, you find white collar crime in general to be interesting and important. It is more salacious than usual, though: he used those funds to pay for excursions to strip clubs. Now we have a story that could get serious attention—but that has not happened yet. Perhaps when the sentencing is announced, this odd news item will get the buzz it so richly deserves, but so far few media outlets outside Maine seem to have picked up on the AP story. One web site based in the UK ran a short original piece, though, complete with a stock photo of strippers. This story is begging for TV news items loaded with anchors’ double entendres and stock footage of women working on poles and talking heads in the studio pretending to be shocked and offended.

Seriously, though: why did he think he could get away with this scheme?

the EPA’s proposed carbon emission standards and humanity

This post is a little different. It’s mostly just the text of a comment I sent via e-mail to the EPA regarding its proposed regulations to cut carbon emissions. It’s fairly self-explanatory. If you’ve had your head in a Fox News echo chamber cave, you should get up to date on the serious environmental problems that all species on Earth must contend with. Something I should mention: until a few years ago, I was skeptical that climate change was as thoroughly anthropogenic as climate scientists claimed. At some point I concluded that the evidence was overwhelming– things like solar flares and volcanoes could not plausibly be blamed for the extent of recent global warming.

EPA Carbon Standards e-mail
In Re: Docket ID No. EPA-HQ-OAR-2013-0602
To whom it concerns,
I want to take a few moments to express my reluctant support for the proposed carbon-emission standards. My support is reluctant only because I worry that the new rules may be insufficient to save us from the developing environmental catastrophe. I would consider the proposed standards to represent a compromise with the various industrial interests who have come out in force against them, and, at this point, it is apparent that these interests will oppose anything that might impede their freedom to pollute the planet that we share with them.
I am young enough that I expect to still be alive and, obviously, affected by whatever state of carbon pollution we as a species must deal with in 2030; but I am also old enough to have seen the public discourse on global warming and related problems shift from skepticism about the anthropogenic theory to belated acceptance of it. A core of hardliners continues to oppose the scientific consensus—and the reason I feel I should comment is that I am certain that an army of lobbyists and ignorant talking heads will oppose even the modest plan announced by the EPA. Many of them are paid to do so, and the others simply seem unwilling to accept the horrible reality of climate change. While the proposed regulations may be too late or too weak or take too long to implement, they constitute a significant move toward dealing with the gigantic problems that humanity must now confront or face possible extinction in a matter of centuries. The industrial interests had their way long enough, and it is imperative that the government not allow them to hijack this process.

Zachary J. Smith, Esq.
P.O. Box 2597
South Portland, ME 04116

smoke and mirrors in South Portland

I have lived in the fine city of South Portland for more of my life than anywhere else and, despite my dalliances with other communities, consider it my home town. I also strongly believe that marijuana prohibition has been an unjust disaster in the United States (and Mexico and possibly elsewhere). Logically, then, I was disappointed, if not a little annoyed, that the leading officials of the City of South Portland decided to devote a good chunk of their time on Monday (June 2, 2014) to opposing a symbolic anti-prohibition measure pending in SoPo. First, the mayor, the police chief, two city councilors, and a few others spoke at a press conference to express their opposition to any legalization of recreational marijuana. The city council followed up with a formal resolution that expressed the same principled objection to legalization in the city.

According to news reports, the officials were prompted by the Marijuana Policy Project’s recent attempts to get a citizen initiative on South Portland’s ballots, and they may have endured recent nightmares about the horrors that have ensued since Portland “legalized” ganja last year. And by “horrors” I mean the lack of any noticeable change related to cannabis in the Forest City. I have lived, studied, and worked in Portland for the last two years and have seen neither anything in the news nor anything first-hand that would indicate a surge in marijuana use here. I assume that is because the legalization referendum was mostly symbolic, which has been noted by various sources, such as this freelance writer online. Furthermore, even if it were more substantive, its language suggests only a decriminalization of marijuana possession by adults of legal drinking age. The ordinance did not provide for a Colorado-style total legalization of commerce in marijuana. Still, the Portland Police Department has chosen to, in effect, ignore the solid majority of voters who supported the measure in November of 2013.

Of course, I am aware that state law generally trumps local law when the two conflict, much as states can find their laws overridden by the federal government under the Supremacy Clause of the Constitution. Nonetheless, despite the reality that local governments cannot override state and federal laws, an ordinance like the one proposed for South Portland can perform at least two functions that are important in a (theoretically) democratic nation.

First, it will add to the large body of persuasive evidence that the people of this country, by and large, do not feel marijuana should be prohibited outright. A brief DuckDuckGo search quickly yielded four different credible polls since last spring that show a definite majority of Americans in support of legal marijuana, with regulation and taxation. Under the basic principles of representative government, this should lead to the changes that the majority supports. Although not every issue is proper for a majority vote—for example, the basic civil rights of unpopular minorities should not be subject to majority rejection— legalization of this plant species is the kind of issue that can be decided upon by a majority vote without an infliction of injustice on the minority. However, I should note that the converse is not necessarily true: that is, the desire of individuals to use marijuana should not necessarily be rejected just because a majority may support prohibition. But this post is getting into some deep political philosophy, and so it is time to shift to my next point.

Second, and more immediately, this type of ordinance signals to law enforcement the people’s intent that the police department should exercise its discretion and not investigate or arrest citizens for marijuana possession. Indeed, an ordinance like this practically demands a policy response from the police. Admittedly, local police officers in Maine rarely bother investigating low-level marijuana crimes; but the political grandstanding in SoPo last week leaves no doubt that local leaders (including the chief of the SPPD) still consider this substance harmful and worthy of their attention. Moreover, the possible presence of contraband (marijuana, for instance) has long been used by police officers in this country as an excuse to ignore the Fourth Amendment’s requirement of a search warrant. (The factual background of a Supreme Court case called Kentucky v. King comes to mind.) The consequence of Portland’s ordinance, as well as similar ones elsewhere, I would argue, is a directive from the voters to local law enforcement to leave local pot users alone. As far as the argument that police and prosecutors have a solemn duty to uphold the law, not simply to pick the ones they like: law enforcement does not (and cannot realistically) enforce every rule in the book every time it is violated. Have you ever been issued a speeding ticket for going 5 MPH over the speed limit on the highway? I know I haven’t. (more…)

more from Buxton

In my last post I mentioned that the Buxton (Maine) Police Department had been short on details about its investigation into the burglary, robbery, and assault of a 61-year-old woman in April, i.e., the investigation that led to charges against three suspects who almost definitely were innocent. I mentioned collateral consequences of arrest in that piece, and one thing that I had in mind (but did not mention) was job loss. Michael Crocker, it turns out, really exemplifies some of the collateral damage that can be wrought on an arrestee’s life; in addition to the problems I mentioned yesterday, he was terminated by his employer after he was arrested, despite the legal system’s presumption of innocence until guilt is proven. Also, he claims, someone pulled a gun on him, and he was not allowed to see his daughter for some time.

It would have been reckless for me to speculate publicly, but I casually discussed the case with a few people (not lawyers) and wondered aloud whether the BPD’s false lead had originated with one of the truly guilty parties, someone with an interest in deflecting police attention elsewhere. I suppose I had the right general idea, because the police chief now says that his force relied on information from an informant with a rap sheet and other charges pending. According to the police, the informant’s information seemed reliable because he knew details about the crime that were not publicly known at that point.  I do not mean to suggest that the informant may have been involved with the crime, but, rather, would like to note that such “cooperation” with the police often originates with a desire to get a good plea bargain. In Crocker’s case, he was lucky enough to have solid evidence that he was far from the scene of the crime on the night in question. Many others have not been so lucky, instead doing hard time based on questionable testimony from jailhouse informants or shoddy detective work. Do a Google or DuckDuckGo search for Project Innocence, jailhouse informants, or convicted but innocent, if you doubt that.

The Never-Ending Problem of Mistaken Arrests

A few years ago, I read a newspaper article about a man who had been arrested after a traffic stop because of a clerical error. The arresting officer relied on information in a database that failed to reflect the reality that the man had paid a small fine; instead, because someone somewhere made a simple data entry mistake, an arrest warrant was generated by the system, and the officer arrested the motorist under the reasonable belief that the information he was provided was correct. The term “Kafka-esque” is almost hackneyed by now, but it certainly fit the arrestee’s situation, which only got worse from there. The man was taken to jail, stripped naked, and cavity-searched, before spending a week behind bars at two facilities trying to clear his name. Years later, as a final insult, a majority of the U.S. Supreme Court determined that his constitutional rights had not been violated.

The case is Florence v. Board of Chosen Freeholders of County of Burlington (New Jersey), decided in 2012, and I still find it astonishing. Of course, the high court was following its logic from a long line of precedents, and I agree with many of the rules it relied on. If a law enforcement officer, like this one, is presented with a bench warrant, then it is entirely reasonable to rely on it to arrest someone. If an arrestee is brought into a jail or similar institution, then safety needs do require a thorough search for weapons. And, if I remember correctly, the county released the man once it realized its error. In sum, it would have taken a significant break from precedent to declare this unfortunate man’s plight a violation of the Fourth Amendment, constitutional due process, or another constitutional protection, despite its obvious absurdity and injustice in hindsight.

So, why do I bring up that case here and now? Over the weekend, a strange tale of law enforcement error in York County reminded me of it. About two weeks earlier, three suspects had been arrested by the Buxton police in connection with a home invasion and robbery; Michael Crocker, one of the suspects, had been lured out of a hiding place in the woods with the aid of a promise of Mountain Dew and pizza. He maintained that he was innocent. His lawyer, Amy Fairfield, commenced an investigation that, in a matter of days, exonerated both her client and the other suspects. Unfortunately for Crockett, the dismissal of criminal charges came after he had suffered collateral damage to his personal life. After his name and mug shot were plastered across the local news media, a large part of the court of public opinion, no doubt, convicted him immediately. He has claimed that people have threatened his life, even after the charges were dismissed. I would guess that many people will always assume that these suspects were “guilty of something.” Why else would the police have arrested them? (His neck tattoos do nothing to help his reputation.) Also, I do not know whether he paid Fairfield himself, but, if he did, I am sure the cost to defend him and investigate his case quickly ran into several hundred, if not several thousand, dollars. The news stories have been short on details as to what information led the police to this trio of suspects, but let us assume that they had arrest warrants supported by probable cause to believe that the suspects had committed the crimes they were charged with. Their constitutional rights, then? Satisfied.

Mistaken arrests undoubtedly occur every day in the United States, with enormous tolls on the individuals who are thrown into the criminal justice system. The arresting officers and jailers may mistreat them. The resulting public humiliation, stress, and anxiety cannot be undone. The costs for privately-retained legal help, bail bonds, and lost wages generally are not refunded to the arrestees. Worst of all, someone who is thrown into a cell with actual violent criminals is at a realistic risk of a rape, beating, or stabbing.

So how might society address these problems? It is clear that the Constitution offers little or no protection for someone who is arrested under a properly obtained and executed warrant supported by probable cause. Nor, as a general matter, can someone who has been wronged in this way sue for civil damages. Even if he or she could sue, this would be a pitiful solution, for several reasons: the inability of money to fully compensate someone for non-financial harms; the extended time (often years) it takes to get a civil judgment; the cost to the public that ultimately pays off the judgment; and the inability of some potential plaintiffs to obtain attorneys who will take their cases on a contingent-fee basis.

I have a twofold statutory suggestion. The practice of arresting someone for an alleged violation of the law like jaywalking is brutal and abhorrent and unnecessary. Likewise, the practice of arresting and jailing someone for something as minor as an unpaid traffic ticket is brutal and abhorrent and unnecessary. Yet the Constitution, as interpreted by the Supreme Court, poses no impediment to the arrest of someone for an alleged civil violation like littering or an alleged traffic infraction or an actually unpaid fine. Nor does the Constitution prevent non-violent arrestees from being strip-searched and so on; see Florence and the cases it followed. A court summons, instead of an arrest, for the initial charge is a reasonable alternative to arrest. And there are other, better ways of dealing with small, unpaid fines, assuming that (unlike Mr. Florence) the person actually has not paid up. Other options include a lien on real property, garnished wages, or a late-payment penalty. The courts are not likely to compel such a change, and, thus, legislation that sets the minimum for an arrest at a level that recognizes the severity of the arrest and detention process would make for a saner society. The minimum could be a felony or an equivalent offense or a crime involving violence. Such a law would not make for a less safe society, either: treating the speeding-ticket scofflaw or jaywalker like Charles Manson does nothing to protect us from violent crime. Such a law would do a great deal to minimize the harm to someone who has been charged with a violation of law based on an error and, presumably, lower the cost of law enforcement.

Obviously, that solution would not help someone like Michael Crocker, who was accused of a violent role in a robbery. If I had more insight to the information that led to his mistaken arrest, I could make some suggestions here as well, but the Buxton cops are not saying much. Better police training, increased accountability for people who make plainly false claims to the police, better use of prosecutorial discretion, and increased access to court-appointed criminal defense all could have alleviated the problems in this case, depending on the circumstances. Any number of mechanisms could have and likely would have prevented the three suspects from being arrested for a crime committed when they evidently were in another county, and I think that prevention of injustice is far better than any post hoc remedy.

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.