A South Portland man the Maine Supreme Judicial Court said forfeited his right to counsel by threatening his fourth and fifth attorneys has appealed the decision to the U.S. Supreme Court.
Joshua Nisbet, 39, is incarcerated at the Maine State Prison in Warren, according to information on the Department of Corrections’ website. He was convicted of robbery in May 2014 after a trial in which he represented himself but had standby counsel.
He was sentenced to 14 years in prison with all but seven suspended and four years of probation.
Nisbet’s appellate attorney, Jamesa Drake of Auburn, said in her petition to the Supreme Court filed June 1 that the nation’s highest court has “never held that the right to counsel may be waived by conduct or forfeited.”
Supreme courts in other states and federal appellate courts have ruled as Maine’s justices did, Drake wrote in her 24-page petition. Other state courts have concluded that a waiver of the right to counsel must be done “expressly, knowingly and voluntarily.”
“The right to counsel, like all other fundamental constitutional rights, may not be ‘forfeited’; it must be ‘waived,’” she said in urging the justices to consider the issue. “The question in this case is whether the defendant’s threat evinces his knowing and intelligent decision to forego counsel and represent himself at trial.”
Drake said Friday in a telephone interview that although the Supreme Court accepts just 1 percent of the cases seeking review, she is hopeful the justices will hear Nisbet’s appeal because the lower courts are in disagreement.
“The issue presented is the type of case the justices are most interested in,” Drake said.
The Supreme Court is not expected to decide whether it will schedule the case for oral argument until October, when it reconvenes after the summer recess. If justices decide to hear the appeal, a briefing schedule would be issued and oral arguments scheduled. The Maine attorney general’s office would be responsible for defending the state supreme court’s decision.
Nisbet was arrested in July 2011 and accused of robbing a gas station at knifepoint in South Portland, according to a previously published report. He remained at the Cumberland County Jail awaiting trial because he was unable to post bail.
As his trial was scheduled, then, rescheduled and lawyers were appointed to his case, then withdrew, it became apparent to Superior Court Justice Thomas Warren that “Nisbet’s interest was to have legal representation in name only and that he himself demanded to control all manner of the defense irrespective of its objective merit or ethical propriety,” Maine Supreme Judicial Court Justice Jeffrey Hjelm wrote in the court’s unanimous opinion.
Nisbet’s earliest possible release date is Aug. 25, 2017, according to the Department of Corrections, less than two months after the nation’s highest court would have to issue a decision in the case should it be accepted.