http://www.pressherald.com/news/Opening_delayed_in_trial_of_defendant_ordered_to_represent_himself_.html
Wondering what you guys thought of this... (full story link above)
Joshua Nisbet, a criminal defendant described as so uncooperative with his court-appointed attorneys that a judge stripped him of his constitutional right to a lawyer, was polite, deferential and self-effacing Monday as he began representing himself on the first day of his trial on a robbery charge.
Nisbet, who turns 37 on Tuesday, drew some chuckles from jurors and apologized to a witness he questioned on the first day of his trial in the Cumberland County Courthouse.
The defendant, dressed in a pink-striped shirt and pink-patterned tie, stood in sharp contrast to the obstinate, “paranoid” man described by Justice Thomas Warren when he issued his order – unprecedented in Maine – that Nisbet had “forfeited his right to counsel.”
Seems hard to believe that this judge can bar you from having counsel. As a layman I would think someone could use that on appeal.
It's certainly a potential issue. In my state though a decent amount of deference would be given to the trial court judge in determining a constructive waiver of counsel. The judge did a smart thing by appointing advisory counsel (I'd note though as a previous public defender there isn't anything much worse than being made advisory counsel) so he's probably okay.
I will say though that in my experience judges really do tend to try to exhaust all other remedies before finding a constructive/implied waiver of counsel. Usually the judge will just deny the defendant's request for new case (after like the second or third time) and then deny the attorney's request to get off it too. That usually forces the defendant to be somewhat cooperative or at least allows the lawyer to defend the case without distraction from the client.
This situation reminds me of one of the crazier things I've seen as a lawyer. Back when I was at the pub def's office one of my co-workers was doing a sentencing on a pretty difficult defendant. Defendant was being sentenced on a stip 10 year sentence. Defendant, for a variety of reasons, decides to essentially filibuster the hearing during his time to speak upon sentencing. Ranted about fascism, read some Marx, etc. Finally when judge shut him down the defendant could visibly be seen weighing his options to further disrupt the hearing. Defendant, who was already in high security and had a guard immediately behind him, decided the "only" person he could reasonably get at was my co-worker. So he attacked him. Got a punch in and my poor co-worker (imagine your pro typical pub def from Kentucky who is in his 50s and chain smokes) couldn't defend himself. Guards did a nice job stopping it quickly, but the lawyer's arm got caught up in the defendant's chains and his arm got yanked out of the socket. Naturally, the hearing had to be continued.
The judge, just wanting to get the defendant to DOC as soon as possible, set the hearing for the next day. Our office, anticipating a change of counsel, filed the motion and had conflict counsel at the ready to argue the issue of whether the judge lawfully stopped the defendant's "filibuster." To everyone's surprise, the judge denied the attorney's motion to withdraw, reasoning that it was a stip sentence, the defendant was incapacitated (judge found implied waiver of physical presence and had defendant on video). In viewing probably the most ethical thing I've ever seen I watched my co-worker argue on behalf of the defendant, the same defendant who had put him in the hospital the day before, for twenty minutes.
As a result of this the incident actually spark a change in state law to make it a felony to assault a court appointed attorney (previously assault was only enhanced to a felony if the assault was on a judge or prosecutor).