MAINE SUPREME JUDICIAL COURT                                      Reporter of Decisions
Decision: 2016 ME 36
Docket:   Cum-14-224
Argued:   September 16, 2015
Decided:  February 25, 2016

Panel:       ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.



                               STATE OF MAINE

                                         v.

                               JOSHUA R. NISBET

HJELM, J.

         [¶1] Joshua R. Nisbet was convicted of robbery (Class A), 17-A M.R.S.

§ 651(1)(E) (2015), in the Unified Criminal Docket (Cumberland County,

Warren, J.) after a jury trial. Nisbet proceeded to trial without representation by

counsel after the court permitted the withdrawal of two attorneys who had

represented him jointly as his fourth and fifth attorneys, because Nisbet had made a

direct and express threat to cause serious bodily harm to one of those attorneys in

the presence of the other. Based on the combined effect of that threat, Nisbet’s

deliberate unwillingness to work with those attorneys’ predecessors, and the

absence of any prospect that he would work cooperatively with successor counsel,

the court determined that Nisbet had forfeited his right to counsel and required

Nisbet to proceed to trial as an unrepresented defendant, although with the

assistance of standby counsel. Nisbet appeals the judgment and challenges the
2

court’s determination that he forfeited his right to counsel. In this matter of first

impression in Maine, we conclude that in circumstances of egregious misconduct

affecting the exercise of the right to counsel, such as those presented here, an

accused can forfeit that right, and that the court did not err in determining that

Nisbet’s conduct rose to the level that constituted a forfeiture. We also conclude

alternatively that the record establishes that through his misconduct, Nisbet waived

his right to counsel by implication. Accordingly, we affirm.

                                I. BACKGROUND

      [¶2] Because the procedural history of this case is critical to the legal

analysis, we review it in some detail.

      [¶3] On July 18, 2011, the State charged Nisbet by criminal complaint with

robbery (Class A), see 17-A M.R.S. § 651(1)(E), alleging that he committed the

crime at a convenience store in South Portland while brandishing a knife. Nisbet

was arrested two days later. After he was indicted in September 2011, the case

proceeded to a four-day jury trial in late April and early May 2014, which resulted

in a guilty verdict. The court subsequently sentenced Nisbet to a fourteen-year

prison term, with all but seven years suspended and four years of probation.

      [¶4] Five attorneys represented Nisbet during the three years the case was

pending in the trial court. Following Nisbet’s initial appearance on July 20, 2011,

the court (MG Kennedy, J.) appointed Attorney Randall Bates to represent Nisbet.
                                                                                    3

The case was initially scheduled for trial in November 2011, but was then

continued to January 2012. On November 16, 2011, Attorney Bates moved to

withdraw as counsel, stating in his motion,

      Defendant has made it abundantly clear that he no longer believes that
      Counsel is representing Defendant vigorously enough. Defendant has
      made several phone calls from the jail elaborating on his loss of
      confidence in Counsel, despite Counsel having represented him in the
      past . . . . [T]he relationship between Defendant and Counsel has
      irrevocably broken down.

The court (Cole, J.) granted the motion on December 9, 2011, appointed Attorney

Robert LeBrasseur to represent Nisbet, and set a new trial date of February 2012.

      [¶5] In early January 2012, Attorney LeBrasseur filed various discovery

motions and a motion to suppress. The court (Wheeler, J.) adjudicated those

motions after a hearing held in March 2012. Earlier, on February 21, 2012, Nisbet

had written a letter directed to Attorney LeBrasseur but sent it to the court,

requesting to be appointed co-counsel, explaining, “I don’t want to be told I can’t

speak on my behalf or ask questions . . . .” After two more continuances, one of

which was requested by the State, a new trial date was set for May 2012. In late

April 2012, Attorney LeBrasseur filed a motion to withdraw as Nisbet’s counsel,

claiming that Nisbet had been hostile during telephone conversations with

members of his staff and that consequently the attorney-client relationship had

eroded. The court (Cole, J.) granted Attorney LeBrasseur’s motion on May 7,
4

2012, and that day appointed Attorney Kristine Hanly to represent Nisbet. The

court also set a new trial date of July 2012.

        [¶6] Attorney Hanly filed a discovery request soon after her appointment to

the case, and she filed two successive motions to continue to allow more time for

her to review the “extensive” discovery and to further conduct a pretrial

investigation.     Attorney Hanly also filed a notice of alibi, see U.C.D.R.P.–

Cumberland County 16A(b)(3); M.R.U. Crim. P. 16A(b)(3),1 and a motion for

sanctions based on allegations that the State failed to produce discovery. The court

(Moskowitz, J.) heard and denied the motion, concluding that the information at

issue had been provided, did not exist, or was available independently to the

defense.

        [¶7] In late January 2013, Attorney Hanly filed a motion for leave to

withdraw, stating that “due to comments and conduct of the client, Counsel

believes that the attorney-client relationship has been irretrievably damaged.” At a

hearing on the motion, Nisbet agreed to Attorney Hanly’s withdrawal and told the

court that he was in the process of retaining an attorney. The court granted the

motion to withdraw but before doing so, told Nisbet, “You so far have had three

excellent lawyers representing you, and we’re about to deal with your third


    1
     As of January 1, 2015, the Cumberland County Unified Criminal Docket Rules of Procedure were
superseded by the Maine Rules of Unified Criminal Procedure. M.R.U. Crim. P. 1(e)(1).
                                                                                    5

lawyer’s motion[] to withdraw . . . . It’s important that you cooperate with the next

attorney that gets on board with you, whether it’s someone your family hires or

whether it’s someone the [c]ourt appoints.”         In a subsequent written order

memorializing the ruling, the court stated, “In no event will the trial in this matter

be delayed. If retained counsel does not enter an appearance by 2-8-13, the court

will appoint a fourth and final attorney to represent Mr. Nisbet.” (Emphasis in

original.) At the hearing on Attorney Hanly’s motion to withdraw, the court also

took up discovery issues, which Attorney Hanly described as originating with

Nisbet’s belief that police officers had falsified reports and that technological

evidence and videos existed to prove that allegation.

      [¶8]   Despite Nisbet’s suggestion to the court that he would soon be

represented by retained counsel, no attorney entered an appearance, and so on

February 26, 2013, Attorneys Neale Duffett and Jon Gale were appointed as

co-counsel to represent Nisbet. They filed a motion to continue the trial date, and

the court (Warren, J.) granted the motion.

      [¶9] At a status conference held in August 2013, Nisbet filed a motion to

remove Attorneys Duffett and Gale as his attorneys. The court engaged in a

colloquy with Nisbet in which the court reminded Nisbet that the prior order

      said that you would get your final attorneys when [the court] relieved
      [Attorney Hanly]. . . . [Y]ou were on notice that we weren’t going to
      keep replacing attorneys even if you asked for that and that you might
6

      be in a situation where you’d have to represent yourself if you really
      want to unload your attorneys.

The court also told Nisbet that he was “at the end of the line on attorneys” and

explained the dangers of proceeding without counsel. The court advised Nisbet

that the prosecutor who would try the case for the State and Attorneys Duffett and

Gale all were experienced lawyers:

      They know [the] rules of evidence. They know the court procedures
      and . . . have done lots of trials. I don’t know whether you’ve ever
      represented yourself or have any legal training or have had any
      courtroom experience where you’ve been [a party] in a trial . . . . And
      so, if you haven’t had that, you’re at a tremendous disadvantage if you
      are representing yourself . . . . [T]hese are the fifth and none of them
      are inexperienced attorneys.         They’re all—some of our most
      experienced, better criminal defense attorneys . . . [Their] collective
      experience dwarfs that of anyone else we could assign at this point.
      So, I don’t see that a dissatisfaction with an attorney is going to
      change if we keep adding additional attorneys or keep replacing them.

Nisbet then told the court that he wanted to proceed with counsel and withdrew his

motion to remove Attorneys Duffett and Gale. The court formally denied the

motion and rescheduled the trial for October 2013.

      [¶10] Between late September and early November 2013, the parties were

in court four times to address further discovery requests pressed by Nisbet himself.

This included Nisbet’s request to obtain recordings of 28 months of telephone calls

from the jail where he was being held, and the issuance of dozens of subpoenas for

documents that, according to the State, did not exist or it did not have. Attorneys
                                                                                      7

Duffett and Gale, and Nisbet himself, requested a continuance of trial, and Nisbet

told the court that he wanted a continuance for “as long as it takes to get this

discovery.” During one of the hearings, Nisbet also wanted the record to show that

there was “bad blood” between his attorneys and him. In response to Nisbet’s

complaints about his attorneys, the court told Nisbet that it “can’t simply keep

replacing lawyers for you . . . . [I]f there is no good reason to [replace] them with

lawyers number 6 and 7, then I think you would be in a position of being told you

might have to represent yourself.” The court also told Nisbet that it was willing to

address any legitimate claims that his attorneys were not representing him

properly.

      [¶11] On November 7, 2013, even though the court had made clear several

times already that it would not appoint successor counsel, Nisbet filed a second

request to remove Duffett and Gale. At a hearing held eight days later, Nisbet told

the court that he was dissatisfied with his attorneys’ work, but after the court

closed the hearing so that the State was not present, he stated, “I take it back. I will

work with them and we will continue and hopefully things will work out better.”

At both that hearing and another one held in early December, Nisbet continued to

press his claim that records had been falsified and that he needed to obtain

extensive discovery to address the issue. He told the court that “the allegations

I’ve made are serious. And someone should be looking into them . . . . Find the
8

stuff. And nobody wants to help me do this.” Nisbet also stated that he intended

to file material with the court against his attorneys’ advice.

      [¶12] Attorneys Duffett and Gale filed their own motion to withdraw from

the case on December 17, 2013, stating that Nisbet insisted that they engage in

unethical conduct; that Nisbet was convinced that they were working against his

interests, even suggesting to them that they should sit at the prosecutor’s table; and

that despite repeated efforts to work productively with Nisbet, the attorney-client

relationship had broken down.        The court held a hearing on the motion on

January 2, 2014. Before Nisbet arrived for the hearing, the court and Attorneys

Duffett and Gale had a discussion on the record about the situation, and, in

response to the court’s inquiry about whether appointment of new counsel would

be helpful, Attorney Gale stated that that approach would probably be futile

because Nisbet would likely continue to insist on having counsel pursue a course

that would violate the Maine Rules of Professional Conduct. Then, while Nisbet

was present, Nisbet stated to the court several times that he understood the court’s

earlier admonitions that if Attorneys Duffett and Gale were allowed to withdraw,

he would have to represent himself. He told the court, “Well, I guess I’ll keep my

lawyers. You have extorted me. Good job.” The court also reviewed with Nisbet

the available options if Attorneys Duffett and Gale were given leave to withdraw,

which included Nisbet proceeding without formal representation but with an
                                                                                      9

“attorney advisor,” or appointing new counsel, although the court suggested there

was no reason to believe that Nisbet could work with new counsel when he could

not do so with present counsel.

      [¶13] The court deferred any action on the motion to withdraw in order to

first address Nisbet’s competence, and it therefore ordered a psychological

evaluation.   See 15 M.R.S. § 101-D(1) (2015).         After the examination was

conducted and a report was filed with the court, the court held a preliminary

hearing on January 21, 2014. At the hearing, the court referred to the finding in the

report that Nisbet was competent but that he had beliefs about the criminal justice

system that, in the court’s words, “may be reaching a delusional quality at times.”

      [¶14] The court again discussed with Nisbet the options for representation,

which included proceeding without counsel, which the court recognized as an

alternative that Nisbet opposed; appointing new counsel; or requiring Attorneys

Duffett and Gale to continue as counsel “against their will.” The court specifically

explained to Nisbet the disadvantages of proceeding without counsel:

      You would have to—with all the advantages that I think I have
      previously outlined to you, would be picking the jury, giving opening
      statements, questioning witnesses, calling witnesses, present evidence,
      giving closing statements all on your own but with standby counsel,
      meaning that if you had a question about what to do or you needed
      some legal question, you could consult the lawyers.
10

Nisbet responded by telling the court, “I have been to trial, I know what happens.

You’re, like, talking, like, I have never been there . . . . Your Honor, I’m not

representing myself so you can save the speech because I’m not going to stand up

and say I waive effective counsel—you guys played your game, it is not going to

happen.” Nisbet told the court, “I want [Attorney Gale] and [Attorney Duffett] to

do what they are supposed to do and represent my case the way I want to present it.

That is it.” He repeated that he wanted them “[t]o represent the case the way I

want to present it . . . represent me the way I want to represent the case—to try the

case the way I want them to try it.”

      [¶15] A competency hearing was held two days later, on January 23. After

considering the examiner’s report and testimony, including the examiner’s opinion

that Nisbet did not have a delusional disorder and had the ability to cooperate with

counsel if he agreed with counsel’s approach to the case, the court found that he

was competent.

      [¶16]   The court then addressed the still-pending motion to withdraw.

Attorney Duffett told the court that Nisbet was insisting that counsel follow his

instructions and present a conspiracy-based defense that, in Attorney Duffett’s

opinion, would require them to violate the Maine Rules of Professional Conduct.

The court stated that it had “no confidence that lawyers 6, 7, 8 or 9 would end up

with any better relationship with Mr. Nisbet than the lawyers who have already
                                                                                 11

been withdrawn or been discharged.” The court denied the motion to withdraw,

explaining that Nisbet’s “loss of confidence” and “lack of trust” in his attorneys

did not justify withdrawal over Nisbet’s objection.

      [¶17] The next hearing was held one week later, when, without the State

being present, the court reviewed Nisbet’s demand that 60 witnesses be

subpoenaed for trial.   Then, with the State’s participation, the court denied a

motion to dismiss that Nisbet had filed based in part on alleged discovery

violations, noting that the State had complied with its discovery obligations but

that Nisbet refused to accept the assertions of the State and others that other

material he wanted did not exist.

      [¶18] In mid-February, the court ordered that the trial would begin on

April 28 and that it would not allow any further continuances. One week later, on

February 27, 2014, Attorneys Duffett and Gale filed a second motion to withdraw.

In their motion, they stated that since the most recent court hearing they had spent

considerable time with Nisbet at the county jail to prepare for trial but that their

relationship with him “progressively deteriorated.”     They further asserted that

when they both met with Nisbet on February 26, Nisbet loudly argued with

Attorney Gale as they were listening to a recording, prompting Attorney Gale to

tell Nisbet to be quiet so they could hear it.        Nisbet then reportedly told

Attorney Gale,
12

         Don’t fucking tell me to be quiet . . . I know you are working against
         me. I will never forget what you’ve done. You have fucked with the
         wrong guy. I don’t care if I get 15 years, when I get out, I will be
         outside your house with a high-powered B.B. gun and I will take your
         eye out. I’m not getting life. I’ll never forget. I’m coming after you
         whenever I get out. I will never forget you.

According to the motion, Nisbet continued to make “identical and similar threats”

as Attorney Duffett, who was present when Nisbet made the threat, pounded on the

door to get help from the jail staff. The motion also stated that Nisbet previously

had been convicted for aggravated assault.

         [¶19] The court held a hearing on the motion to withdraw on the day after it

was filed. After hearing from both attorneys and from Nisbet, the court found that

Nisbet had engaged in the conduct described in the motion—a finding that Nisbet

does not contest here—and that Nisbet’s threat was serious enough that both

attorneys could reasonably believe their safety was at risk. The court stated that

under those circumstances, it did not “see how [it] could keep [counsel] in the

case.”     During the hearing, the court reviewed the remaining options, which

included determining that Nisbet had “in effect waived or forfeited [his] right to

counsel and we can go to trial,” or appointing new counsel without “much

expectation that things would be better” with successor counsel. The court invited

Nisbet to propose other alternatives, and Nisbet responded that the court “cannot

let them out.”
                                                                                   13

      [¶20] After taking under advisement the question of what would happen in

light of counsel’s impending withdrawal, the court issued a written decision

determining that Nisbet had forfeited his right to counsel. The court reiterated its

conclusion that Attorneys Duffett and Gale “cannot be expected to remain on the

case” because, while Attorney Duffett was present, Nisbet threatened

Attorney Gale in a way that “entitled [them] to take the threat seriously” and that

“they reasonably believe their safety is at risk.” The court further found that both

attorneys “are known as highly experienced and competent defense counsel who

have had particular success working with difficult clients” and that it “had

absolutely no basis to conclude that the substitution of yet another attorney or

attorneys would be any more successful.”

      [¶21]   The court also found that the length of time the case had been

pending—more than two and one-half years, during which Nisbet was being held

in custody—was attributable to Nisbet because he “consistently insisted on

pursuing an extremely time-consuming strategy of seeking increasingly far-fetched

discovery” and was unwilling to prepare for trial itself. Under the circumstances,

the court concluded that “any further delay of trial would be unacceptable.” The

court then concluded that Nisbet had forfeited his right to counsel, explaining,
14

             The right to counsel, as fundamental as it is, cannot be
      manipulated so as to obstruct the orderly procedure in the courts or to
      interfere with the fair, efficient and effective administration of
      justice . . . .

             Absent an adequate reason to require that counsel be removed,
      courts may present recalcitrant defendants with the choice between
      remaining with their existing counsel or representing themselves at
      trial . . . . In this case, requiring Nisbet to proceed to trial with
      [A]ttorneys Gale and Duffett is no longer an option as a result of
      Nisbet’s own conduct.         The court concludes that under the
      circumstances Nisbet has forfeited his right to counsel . . . . Nisbet’s
      behavior, including his threats against counsel, cannot be rewarded
      with yet another continuance and yet another attorney, particularly
      when there is absolutely no basis to expect that a sixth attorney would
      be any more successful in getting along with the client.

             The court understands this ruling is over Nisbet’s objection, and
      it takes this step with extreme reluctance. Given Nisbet’s behavior
      and the inordinate amount of time this case has been delayed, this
      court sees no other alternative under the circumstances.

(Citations omitted.)

      [¶22] Although the court declined to appoint counsel to succeed Attorneys

Duffett and Gale, the court did designate two standby attorneys to assist Nisbet

during the trial. They did so during the trial and the resulting sentencing hearing.

After the trial and imposition of sentence, Nisbet—represented by new counsel—

filed a timely appeal.
                                                                                                   15

                                       II. DISCUSSION

       [¶23] The sole issue presented here is whether the court erred by requiring

Nisbet to proceed to trial as an unrepresented defendant.2                       We address the

jurisprudence that bears on an accused’s right to counsel, the doctrines of express

waiver and waiver by conduct, and the forfeiture of the right to counsel, and we

apply those principles to the circumstances of this case.

        [¶24] The right to counsel is guaranteed by both the Sixth Amendment to

the United States Constitution and article I, section 6 of the Maine Constitution,

which are “commensurate” with each other. State v. Watson, 2006 ME 80, ¶ 14,

900 A.2d 702. As the United States Supreme Court has said, “[i]n an adversary

system of criminal justice, there is no right more essential than the right to the

assistance of counsel,” see Lakeside v. Oregon, 435 U.S. 333, 341 (1978), and we

have recognized the right of representation by counsel as “a right of the highest

order,” Watson, 2006 ME 80, ¶ 14, 900 A.2d 702 (citing United States v. Proctor,

166 F.3d 396, 402 (1st Cir. 1999)). Because the right to counsel is fundamental to

a fair system of criminal justice and serves as the pathway through which other

constitutional protections are realized, the wrongful denial of an accused’s right to

counsel is by itself prejudicial error. See Chapman v. California, 386 U.S. 18, 23

   2
      Because the issue on appeal does not extend to the assistance provided by standby counsel, we do
not address the arguments raised in an amicus brief filed by The Maine Association of Criminal Defense
Lawyers relating to the role of standby counsel.
16

n.8 (1967). The level of protection afforded the right to counsel is illustrated in the

well-established doctrine that a court must “indulge every reasonable presumption

against waiver” of that right.     Johnson v. Zerbst, 304 U.S. 458, 464 (1938)

(quotation marks omitted); see also Brewer v. Williams, 430 U.S. 387, 404 (1977);

Watson, 2006 ME 80, ¶ 15, 900 A.2d 702.

      [¶25] There are three distinct ways, however, in which an accused who has

the right to counsel can or must proceed without legal representation: express

waiver, waiver by conduct, and forfeiture. We discuss those doctrines in turn.

A.    Express Waiver

      [¶26] Exercise of the right to counsel is not mandatory: the holder of that

right may waive it through an intentional, knowing, and voluntarily choice to give

up that right and proceed without legal representation. Johnson, 304 U.S. at 464;

State v. Hill, 2014 ME 16, ¶¶ 5, 10, 86 A.3d 628. The waiver of one’s right to

counsel is usually accomplished by means of an express verbal request and a

resulting colloquy with the court to ensure that the waiver meets constitutional

standards. See United States v. Goldberg, 67 F.3d 1092, 1099 (3d Cir. 1995);

Watson, 2006 ME 80, ¶ 18, 900 A.2d 702. Here, Nisbet made clear to the court a

number of times that he wanted to be represented by counsel, and so he did not

expressly waive his right to counsel.
                                                                                17

B.    Waiver by Conduct

      [¶27] The right to counsel is not absolute. An accused waives the right to

counsel by conduct—that is, by implication rather than by an express request—

when he has been warned that certain conduct will be viewed as an implied waiver

of the right to counsel, but then persists in that conduct, thereby triggering the

implied waiver. See, e.g., Goldberg, 67 F.3d at 1100; Commonwealth v. Means,

907 N.E.2d 646, 658 (Mass. 2009) (“The key to waiver by conduct is misconduct

occurring after an express warning has been given to the defendant about the

defendant’s behavior and the consequences of proceeding without counsel.”

(alteration omitted)); State v. Carruthers, 35 S.W.3d 516, 547-48 (Tenn. 2000)

(citing cases). In waiving the right to counsel by conduct, the defendant does not

affirmatively or expressly waive that right, but rather intentionally engages in

conduct that he has been warned will result in a loss of the right. One of the

elements underlying the loss of the right to counsel under these circumstances is a

waiver of that right, which requires that the defendant have knowledge of the right

and an understanding of the consequences of waiving it.          Therefore, for a

defendant to waive the right to counsel by conduct, the process requires the court

to have advised the defendant of the risks faced by proceeding without counsel,

just as the court must advise a defendant of those risks when that defendant

expressly waives the right to counsel. See Goldberg, 67 F.3d at 1100.
18

      [¶28] We have invoked the doctrine of waiver by conduct, although without

using that appellation, when we observed that a non-indigent defendant’s

“stubborn failure” to hire counsel can amount to a waiver of the right to

representation “if the court also finds that the defendant fully understood the right

to counsel and the dangers of self-representation.” Watson, 2006 ME 80, ¶ 27,

900 A.2d 702. In that situation, the defendant must have been advised of the right

to secure counsel and have had a reasonable opportunity to do so; the defendant

must have “unreasonably failed” to retain or apply for counsel in a timely way; and

“the defendant’s background, experience, conduct and other pertinent information

[must] establish that the defendant fully apprehended the nature of the charges

against him, the perils of self-representation, and the requirements that [would] be

placed upon him.” Id. ¶ 28 (quotation marks omitted).

      [¶29] Here, in declining to appoint successor counsel to represent Nisbet

after allowing Attorneys Duffet and Gale to withdraw, the court determined that

Nisbet had forfeited his right to counsel, and for the reasons we discuss below, that

determination was not erroneous. The circumstances of this case, however, also

establish that Nisbet impliedly waived his right to counsel as a result of his

conduct, as that doctrine is explained in Watson.

      [¶30] At several hearings—including the January 21 hearing that occurred

less than three weeks before Nisbet threatened Attorney Gale—the court explained
                                                                                 19

to Nisbet his right to counsel, the benefits of legal representation, and the

disadvantages of proceeding without counsel. As part of this explanation, the court

reviewed the specific aspects of the trial process that Nisbet would face on his own

if he did not have counsel. The court had also told Nisbet that he would be at a

“tremendous disadvantage” if he were to proceed to trial unrepresented. Nisbet’s

responses and other statements to the court establish that he understood the role of

counsel, based in part on his own experience in the court system. Further, Nisbet’s

repeated statements that he wanted to be represented by counsel also clearly

demonstrate his appreciation of the importance of that representation.       These

circumstances establish the foundation for a constitutionally sufficient waiver,

namely, an explanation by the court about the nature and the perils of proceeding

without counsel, and the defendant’s comprehension of that information. See id.

¶¶ 24-26.

      [¶31] The waiver of that known right is then established through Nisbet’s

conduct that led to the withdrawal of Attorneys Duffett and Gale. The court had

stressed to Nisbet the importance of cooperating with the efforts of counsel to

represent his interests, and the court expressly and repeatedly had made clear to

Nisbet that it would not appoint counsel to succeed Attorneys Duffett and Gale.

This was tantamount to a warning to Nisbet that if he wanted continuing legal

representation, he needed to work productively with counsel.         Despite those
20

communications and the court’s express and repeated warnings that it would not

appoint any other attorney to represent him, Nisbet did what he was effectively

warned not to do: through his direct and vivid threat to cause serious bodily harm

to one of his attorneys while his other attorney was present, Nisbet willfully

engaged in conduct that, based on the clear warnings that the court had given to

him, he must have known would inevitably result in the withdrawal of his

attorneys and the loss of his right to counsel.

      [¶32] Under these circumstances, Nisbet’s explicit threat to assault counsel

constitutes waiver by conduct.

      [¶33] Although the record demonstrates that Nisbet engaged in conduct that,

by necessary implication, constituted a waiver of his right to counsel, the court

ultimately concluded that Nisbet had forfeited his right to counsel, and so we

examine the doctrine of forfeiture and then apply that analysis to the particular

circumstances of this case.

C.    Forfeiture

      [¶34]     Forfeiture occurs when the defendant engages in “serious

misconduct” that abuses the right to counsel. Goldberg, 67 F.3d at 1102. Because

forfeiture of the right to counsel is not predicated on a knowing intention to

relinquish it, id., a forfeiture fundamentally differs from a waiver, which results

from an intentional, knowing, and voluntarily decision not to exercise the right,
                                                                                                       21

whether that waiver is express or implied through conduct. In contrast, forfeiture

of a defendant’s constitutional right to counsel is an “extreme sanction,”

Means, 907 N.E.2d at 652,3 flowing from the defendant’s abuse or manipulation of

that right and results in the defendant being required to represent himself even

though he has not waived counsel and may still want legal representation.

        [¶35] Courts have held that a defendant may forfeit the right to counsel after

assaulting his attorney or engaging in abusive or threatening conduct toward

counsel. See United States v. Thomas, 357 F.3d 357, 363-65 (3d Cir. 2004);

United States v. Leggett, 162 F.3d 237, 249-51 (3d Cir. 1998); Goldberg,

67 F.3d at 1100, 1102; United States v. McLeod, 53 F.3d 322, 326 (11th Cir.

1995); Commonwealth v. Lucarelli, 971 A.2d 1173, 1179-80 (Pa. 2009); Bultron v.

State, 897 A.2d 758, 766 (Del. 2006). A defendant has also been deemed to have

forfeited the right to counsel when the defendant manipulates the right in a way

that substantially interferes with the orderly and proper development of a case

toward or at trial. See Lucarelli, 971 A.2d at 1179 (recognizing that if a defendant

can never forfeit his right to counsel, a defendant who refused to engage in the



   3
      Although Nisbet argues otherwise, we do not take the Massachusetts Supreme Judicial Court’s use
of the word “sanction” to suggest that forfeiture is a stand-alone penalty for the defendant’s misconduct.
See Commonwealth v. Means, 907 N.E.2d 646, 652 (Mass. 2009). Rather, the context of the court’s word
choice makes clear that it was referring to a judicial response that adapts the course of the legal
proceedings to the defendant’s choice to engage in misconduct that undermines the legitimate exercise of
the right to counsel. See id.
22

colloquy process necessary for waiver “could impermissibly clog the machinery of

justice or hamper and delay the state’s efforts to effectively administer justice”);

Carruthers, 35 S.W.3d at 550 (finding forfeiture where the defendant’s threat

against counsel was a “ploy” to delay the trial). See generally Wayne R. LaFave

et al., Criminal Procedure § 11.3(c) (2d ed. 1999) (“What these courts have held,

in effect, is that the state’s interest in maintaining an orderly trial schedule and the

defendant’s negligence, indifference, or possibly purposeful delaying tactic,

combined to justify a forfeiture of defendant’s right to counsel . . . .”).

      [¶36] Nisbet argues that Maine should not join those jurisdictions whose

courts have held that the right to counsel is subject to forfeiture. We disagree.

First, contrary to Nisbet’s argument and as several federal circuit courts have held,

the forfeiture doctrine is not contrary to United States Supreme Court

jurisprudence.    See Wilkerson v. Klem, 412 F.3d 449, 454 (3d Cir. 2005);

Gilchrist v. O’Keefe, 260 F.3d 87, 97 (2d Cir. 2001). Second, the magnitude of the

constitutional right to counsel does not by itself insulate it from forfeiture when the

party holding that right abuses it. See United States v. White, 529 F.2d 1390, 1393

(8th Cir. 1976) (“Of course, the right to counsel is a shield, not a sword.”). Just as

other rights of constitutional magnitude can be lost, see, e.g., Illinois v. Allen,

397 U.S. 337, 343 (1970) (holding that a defendant can lose the right to be present

at trial for disorderly and disruptive behavior); State v. Murphy, 2010 ME 140,
                                                                                                      23

¶ 17, 10 A.3d 697 (concluding that the trial court did not deprive a defendant of

due process when it excluded the defendant from the courtroom after she had been

continually disruptive and disrespectful toward the court and the jury), so too can

the right to counsel.

        [¶37]      As the Massachusetts Supreme Judicial Court has observed,

“[f]orfeiture is a method of court room management in extraordinary

circumstances,” because it allows a court “to control its own proceedings, the

conduct of participants, the actions of officers of the court and the environment of

the court, which is a power absolutely necessary for a court to function effectively

and do its job of administering justice.” Means, 907 N.E.2d at 658-59 (quotation

marks omitted).

        [¶38] For these reasons, we join “[t]he [f]ederal courts and several [s]tate

courts” that have recognized the doctrine of forfeiture of the right to counsel.

See id. at 659.4 Because, however, of the inherent importance of the right to

counsel and its interrelationship with other fundamental rights such as the right to a

fair trial, a defendant may be deemed to forfeit that right only in circumstances

where, in the context of that defendant’s relationship with counsel, he has engaged


   4
      In doing so, we do not sanction the loss of a fundamental constitutional right merely to create a
means for the court to function effectively. Rather, it is a recognized doctrine that is based upon the
principle that the right to counsel is not absolute and is subject to forfeiture as a result of egregious
misconduct by the defendant.
24

in extremely serious misconduct that directly undermines the integrity and

effectiveness of that right or frustrates the judicial process in a substantial way.

Further, forfeiture requires a determination by the court that there are no lesser

judicial responses that can reasonably be expected to prevent or ameliorate the

ongoing effects of the defendant’s misconduct. See id. at 660-61 (stating that

“forfeiture should be a last resort in response to the most grave and deliberate

misconduct”).

         [¶39]      We therefore hold that under circumstances arising from a

defendant’s willful and egregious conduct that undermines or exploits the right to

counsel with substantial detriment to the judicial process, and where there is no

meaningful available alternative, the court may determine that the accused has

forfeited the right to counsel and thereby require the defendant to proceed without

counsel.5


     5
      It bears noting that several courts have also pointed to the importance of providing the defendant a
“full and fair opportunity” to be heard on whether forfeiture is a proper judicial response to the particular
circumstances of a case. See Means, 907 N.E.2d at 662; King v. Superior Court, 107 Cal. App. 4th 929,
945-50 (2003). Elements of a fair opportunity to be heard consist of proper notice and representation by
counsel at that hearing, which may include the limited appointment of counsel to represent the defendant
at that hearing if the defendant’s alleged misconduct involves acts directed against present counsel.
Means, 907 N.E.2d at 662. Here, Nisbet did not have separate counsel at the hearing that resulted in the
order allowing Attorneys Duffett and Gale to withdraw. Rather, the participants were Nisbet and the two
attorneys. At that hearing, the court heard sworn statements from those three individuals and made
factual findings based on that information. Nisbet, however, does not challenge the immediate process
that resulted in the court’s finding that his attorneys’ allegations of threatening conduct were true, and he
does not contest the court’s findings here. Rather, starting from that predicate, Nisbet’s argument
addresses the legal effects of his conduct, namely, whether an accused can forfeit the right to counsel in
the first place, and, if so, whether Nisbet did so here.
                                                                                                       25

D.       Nisbet’s Forfeiture of His Right to Counsel

         [¶40] We must next examine the court’s forfeiture determination in the

context of the extended pretrial process, to determine whether Nisbet engaged in

misconduct of a magnitude sufficient to warrant consideration of forfeiture and

whether the court erred by concluding that it had no meaningful alternative to

forfeiture. We review the court’s underlying factual findings for clear error and its

conclusions of law de novo.6 Cf. State v. Jones, 2012 ME 88, ¶ 6, 46 A.3d 1125;

Watson, 2006 ME 80, ¶ 31, 900 A.2d 702.

         [¶41] The court’s determination that Nisbet forfeited his right to counsel

rested on a constellation of factors specific to Nisbet’s conduct and its effects.

The starting point for the court’s analysis was that because Nisbet made a direct

and graphic threat of future physical harm to Attorney Gale in Attorney Duffett’s

presence, thereby putting both in reasonable fear for their safety, they could not

continue to represent Nisbet.              We fully agree that no attorney—particularly

including appointed counsel, whose willingness to accept appointments in criminal


     6
       Although Nisbet does not challenge the court’s order allowing Attorneys Duffett and Gale to
withdraw, he contends that the trial court erred by finding that he was responsible for the “serious
breakdown” of his relationships with the first three attorneys appointed to represent him and that those
attorneys were to blame. From this, he argues that the number of attorneys who represented him is not a
reflection of an inability to work productively with counsel and that the court should have appointed
another attorney to succeed Attorneys Duffett and Gale. We conclude, however, that each time an
attorney was given leave to withdraw as Nisbet’s counsel, the court acted within its discretion. Cf. State
v. Dunbar, 2008 ME 182, ¶ 5, 960 A.2d 1173 (reviewing the denial of a motion to withdraw for an abuse
of discretion).
26

cases is critical to the vitality of the right to counsel and whose work contains a

strong element of public service—should be expected to tolerate threatening

conduct from a client. The court acted well within its discretion by permitting

Attorneys Duffett and Gale to withdraw, and Nisbet does not argue otherwise.

      [¶42] The court then properly gauged the effect of Nisbet’s abusive conduct

and the resulting withdrawal of counsel in the context of the pretrial development

of the case. The court found that Nisbet had engaged in a pattern of intransigent

behavior because of his “obsessive[]” and “extremely time-consuming” focus on

obtaining “increasingly far-fetched discovery.” That finding is supported by the

record.   Although not specifically cited by the court, the extent of Nisbet’s

eagerness to delay trial is revealed by his statement, made to the court at a

discovery hearing held in late September 2013, when the case had already been

pending for more than two years, that he wanted the trial continued for as long as it

took him to receive the discovery. The groundless nature of Nisbet’s strategy is

demonstrated by the collective view of Attorneys Duffett and Gale that it would

require them to violate the ethical requirements imposed on lawyers by the Rules

of Professional Responsibility. Over the course of many hearings where Nisbet

received considerable process, he explicitly told the court that he would require his

attorneys to present the case in the way he wanted it presented, even though

Attorneys Duffett and Gale concluded that if they followed Nisbet’s direction as he
                                                                                                       27

insisted, they would exceed the ethical bounds prescribed by the Rules of

Professional Conduct. This demonstrates 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.7

        [¶43]     The court then properly proceeded to consider the prospect of

appointing replacement counsel but found, as it had several times previously,

“absolutely no basis” to expect that replacement counsel would have greater

success in overcoming Nisbet’s “behavior, attitude, and distrust” that characterized

his relationship with Attorneys Duffett and Gale.                      That conclusion was not

erroneous. Although Nisbet was capable of acting cooperatively with counsel, he

had chosen a different course directly resulting in the fatal rupture of his

relationships with five attorneys, all of whom the court described as

“highly experienced and competent,” including Attorneys Duffett and Gale, who

had demonstrated “particular success working with difficult clients.”

        [¶44] When Nisbet engaged in the abusive conduct that directly resulted in

the withdrawal of Attorneys Duffett and Gale, the case had been pending for well

over two years. The court set a trial date in late April, and it appropriately stated

   7
      An example of this attitude is found early on in the proceedings, when Nisbet requested the court to
appoint him as “co-counsel.” We have held, however, that a defendant does not have the right to dual or
hybrid representation shared with an attorney. See State v. Hofland, 2012 ME 129, ¶ 16, 58 A.3d 1023,
cert. denied, 2013 U.S. LEXIS 6146 (Oct. 7, 2013). Therefore, Nisbet was not entitled to act as his own
attorney when he was also represented by counsel.
28

that there would be no further continuances. Given the length of time the case had

been stalled in a pretrial posture and Nisbet’s direct responsibility for that situation,

the court did not err by concluding that the reasons for Nisbet’s unwillingness to

work productively with counsel would not be cured by the appointment of

successor counsel, and that the additional delays that would inevitably result from

appointment of successor counsel were “unacceptable.”

      [¶45] We therefore conclude that the court took into account the factors that

are central to the forfeiture analysis: Nisbet’s ongoing unwillingness to cooperate

with counsel despite his capacity to do so; the court’s considerable efforts to fulfill

his right to counsel through the successive appointment of experienced and capable

lawyers; Nisbet’s focus on groundless issues that did not have a reasonable

prospect to be material in this case, causing substantial and unacceptable delays of

trial; and his evident motivation to continue to engage in conduct that would delay

the trial indefinitely. Under these circumstances, because Nisbet’s prior conduct

demonstrated that his demand for counsel would constitute a further manipulation

of the judicial process, the court did not err by concluding that Nisbet had forfeited

his right to counsel and that despite its “extreme reluctance” to do so, it had no

alternative but to require Nisbet to proceed to trial without formal representation.

      [¶46] It is important to recognize that in the context of considering the

question of forfeiture, the court took important steps to safeguard Nisbet’s interests
                                                                                    29

despite his exposure to the loss of his right to counsel.         For example, with

commendable patience and persistence, at several hearings the court explained to

Nisbet the importance of cooperating with counsel.          After a “final” order of

appointment was issued in February 2013, the court repeatedly told Nisbet that if

Attorneys Duffett and Gale withdrew, he would be required to proceed to trial

without legal representation. The court also gave Nisbet a detailed explanation of

the trial process, the responsibilities that an attorney would manage at trial, and the

substantial disadvantages that Nisbet would face were he to proceed to trial

without counsel. Those are the same exchanges that also met the requirements

necessary for a proper waiver of counsel. See Watson, 2006 ME 80, ¶¶ 24-26,

900 A.2d 702. Therefore, when he threatened Attorney Gale in the presence of

Attorney Duffett, Nisbet was fully on notice of the repercussions of the withdrawal

of the attorneys then representing him, but he nonetheless created a situation where

that withdrawal was inevitable.

      [¶47] As another example of the care with which the court treated Nisbet’s

right to counsel, it ordered a competency evaluation and then held a competency

hearing before it would even consider Attorney Duffett’s and Attorney Gale’s first

motion to withdraw. It proceeded to address the pending issue of representation

only after determining that Nisbet was competent. As the Massachusetts Supreme

Judicial Court observed, a mentally incompetent defendant should not be required
30

to proceed without counsel by forfeiture or otherwise. Means, 907 N.E.2d at 661.

Here, the court addressed this important consideration.

      [¶48] Additionally, when the court ultimately determined that Nisbet had

forfeited his right to counsel, it appointed standby counsel to assist Nisbet. In this

way, the court safeguarded Nisbet’s interests as much as possible under the

circumstances.

      [¶49]   We conclude that the court, faced with significant challenges in

getting this case to trial, exhibited commendable sensitivity to Nisbet’s

fundamental right to counsel and in a measured way determined, only when no

alternatives remained, that Nisbet had forfeited that right. The court acted within

its authority by doing so.

                                III. CONCLUSION

      [¶50] Nisbet waived his right to counsel because he willfully engaged in

misconduct that the court appropriately warned him would result in the loss of

representation, and because when he engaged in the misconduct that directly

resulted in the withdrawal of his attorneys, Nisbet understood his right to counsel

and the perils of proceeding without representation. Nisbet also forfeited his right

to counsel because he engaged in egregious misconduct that manipulated that right

in a way that was substantially detrimental to the court’s ability to administer

justice, and because no lesser alternative was available to the court. Therefore,
                                                                                   31

under each analysis, the court did not err by requiring Nisbet to proceed to trial

without legal representation.

        The entry is:

                           Judgment affirmed.


On the briefs:

        Jamesa J. Drake, Esq., Drake Law, LLC, Auburn, for appellant Joshua R.
        Nisbet

        Stephanie Anderson, District Attorney, and Robert L. Ellis, Asst. Dist. Atty.,
        Prosecutorial District No. Two, Portland, for appellee State of Maine

        Janet T. Mills, Attorney General, and Leanne Robbin, Asst. Atty. Gen.,
        Office of the Attorney General, Augusta, for amicus curiae Maine Office of
        the Attorney General

        Patrick Lyons, Stud. Atty., and Christopher Northrop, Esq., Cumberland
        Legal Aid Clinic, Portland, and David Bobrow, Esq., Bedard and Bobrow,
        PC, Eliot, for amicus curiae Maine Association of Criminal Defense
        Lawyers

        Zachary L. Heiden, Esq., American Civil Liberties Union of Maine
        Foundation, Portland, for amicus curiae American Civil Liberties Union of
        Maine Foundation

At oral argument:

        Jamesa J. Drake, Esq., for appellant Joshua R. Nisbet

        Leanne Robbin, Asst. Atty. Gen., for appellee State of Maine


Cumberland County Unified Criminal Docket docket number CR-2011-4590
FOR CLERK REFERENCE ONLY
