The jury in the criminal trial of Joshua Nisbet, who has been ordered by a judge to represent himself, heard Nisbet question witness after witness over the past three days without being told that Nisbet had been stripped of his constitutional right to an attorney.
Jurors may have wondered why Nisbet stood at the defense table with two standby attorneys, who often whispered in one or both of his ears, while only Nisbet spoke during cross-examination of the state’s witnesses or when questioning his own defense witnesses.
Justice Thomas Warren issued an order before the trial in the Cumberland County Courthouse saying Nisbet had been so uncooperative with five previous court-appointed attorneys that he had “forfeited his right to counsel.”
Nisbet’s situation may well be a first in Maine. Numerous lawyers and law professors who have been asked since Warren issued the order said they could think of only a few similar examples, none of them in Maine.
Nisbet, 37, of Scarborough, is charged with using a knife to threaten a store clerk during a robbery at the Mobil Mart on Main Street in South Portland on July 15, 2011. The store’s security camera captured a picture of a masked robber with four-letter tattoo in the same place on his neck where Nisbet has the four-letter name of his son.
Nisbet has pleaded not guilty. If convicted, he will face as much as 30 years in prison.
The jury hasn’t yet begun deliberations, but at least one attorney has already stepped forward to represent Nisbet in his possible appeal.
Jamesa Drake, an adjunct professor at University of Maine School of Law who has a private law practice in Auburn, said her offer to represent Nisbet may be premature but she feels strongly about the constitutional precedent at stake.
“The right to counsel is necessary to ensure that every other constitutional right at trial is protected. The courts have unanimously held that without the right to counsel, there is no other guarantee that other rights will be upheld,” Drake said in a phone interview Wednesday. “It’s important for Maine and other jurisdictions: what to do in a situation where a defendant is deemed not worthy of counsel?”
While the judge and lawyers have been in the courtroom, Nisbet has objected during each day of the trial to having to represent himself. But he has not explained his situation to the jury.
“I’m representing myself in a duress situation,” he told the judge again Wednesday morning before the jury was led into the room.
Nisbet’s approach in defending himself has been inconsistent. He cross-examined his mother on Tuesday after she was called as a witness against him, but decided on Wednesday not to ask a single question of the lead investigator in the case, South Portland Detective Sgt. Stephen Webster.
Nisbet contends that police got the wrong man, failed to follow up on leads and created a conspiracy against him.
He has been through five court-appointed attorneys in the nearly three years he has been in the Cumberland County Jail, since his arrest after a standoff that involved a SWAT team days after the robbery.
Each attorney sought to withdraw from the case after citing serious breakdowns in the attorney-client relationship. Nisbet said he believes that each of the lawyers had begun to work against him.
His two most recent attorneys, Jon Gale and Neale Duffett, said Nisbet threatened Gale during a visit at the jail on Feb. 26, saying he would hunt down the lawyer and shoot his eye out with a high-powered BB gun. Nisbet denies making that threat.
Nisbet and the prosecutor, Assistant District Attorney Bud Ellis, rested their cases Wednesday. They are scheduled to give closing arguments on Thursday before the case goes to the jury.
While representing himself, Nisbet has relied heavily on the two lawyers assigned by the judge on a standby basis, Luke Rioux and Mark Peltier. He also has turned to the spectator section of the courtroom many times for feedback from his mother, Dani Nisbet. As Nisbet has stood to question witnesses, Rioux has stood to his left and sometimes whispered in his ear between every question. Peltier, seated behind them, has stepped forward multiple times to whisper in Nisbet’s right ear.
“He’d prepared a large number of questions for all the witnesses,” Rioux said after court adjourned Wednesday. “We’ve certainly helped him to phrase some of the questions in a way that will be permissible and to phrase them in a way to elicit the response he wants. It’s a tough task to phrase questions that will develop the desired evidence and the intended response.”
Scott Dolan can be contacted at 791-6304 or at: