State of Maine v. Small

STATE OF MAINE UNIFIED CRIMINAL DOCKET
CUMBERLAND, ss Nos. CR-19-141
CR-16-2622

STATE OF MAINE

v. ORDER

IYASSU SMALL,

Defendant

Before the court is a motion by standby counsel Cory McKenna to clarify the scope of

representation or in the alternative to withdraw.

The court will do its best to clarify the scope of representation, although it may depend on

how events play out in this rather unique situation. First of all, as counsel notes, standby counsel

can be appointed over the defendant's objection. Faretta v. California, 422 U.S. 806, 834 n.46

(1975). The U.S. Supreme Court also addressed the role of standby counsel in McKaskle v.

Wiggins, 465 U.S. 168 (1984).

McKaskle involved a claim that standby counsel had interfered with the defendant's right

to represent himself In contrast, this is a case where Mr. Small has either discharged or refused to

cooperate with eight prior attorneys (attorneys Andrew Edwards, Daniel Wentworth, Roger

Brunelle, Tina Nadeau, Neale Duffett, Robert Lebrasseur, Peter Cyr, and Mark Peltier) and filed a

bar complaint against the attorney initially appointed as standby counsel (Jon Gale), causing that

attorney to withdraw. All of the previously appointed are competent and experienced trial

attorneys. Although Mr. Small has never stated that he wishes to represent himself and indeed has

always stated that he wishes to be represented by counsel, the court has concluded that it would be

futile to keep appointing additional attorneys under the circumstances and that Mr. Small's
unwillingness to cooperate with any appointed counsel cannot continue to delay this case, in which

Mr. Small has remained in custody for more than three years. 1

Mr. Small has been previously and repeatedly warned that his continued refusal to

cooperate with successive attorneys could result in the finding that, notwithstanding his continued

insistence that he wants counsel to represent him, the court would have no choice but to conclude

that he is effectively waiving his right to counsel. These warnings have been given both in

colloquies with Mr. Small and in written orders. See orders dated November 18, 2019, December

11, 2019, September 25, 2020, and March 15 2021. The court believes it has orally explained to

Mr. Small the disadvantages of proceeding without an attorney and would have explained those

again if Mr. Small had not prevented that by his behavior during the September 23, 2020 and

March 15, 2021 hearings and his refusal to appear on Zoom thereafter.

Accordingly, and with great reluctance, the court has concluded that by his conduct Mr.

Small has effectively waived his right to counsel. See State v. Nisbet, 2016 ME 36 ~ 28-29, 134

A.3d 840; State v. Watson, 2006 ME 80 ~ 28, 900 A.2d 702. In Nisbet, the Law Court concluded

in the alternative that the defendant had forfeited his right to counsel. With the exception of threats

to an attorney, the grounds on which Law Court relied to uphold the finding of forfeiture in Nisbet,

see 2016 ME 36 ~ 45, are also present in this case. 2

As Nisbet demonstrates, when defendants are sufficiently recalcitrant, comis may require

them to represent themselves. Accord, United States v. Kneeland, 148 F.3d 6 (1st Cir. 1998) (case

1 These delays have been exacerbated by the pandemic, by Covid-19 lockdowns at the jail, and by

Mr. Small's refusal to appear by Zoom.

2 Mr. Small's waiver and/or forfeiture of his right to counsel is not irrevocable. As this order makes

clear, he can change his mind and accept representation by Attorney McKenna at any point.

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in which trial court had declined to appoint a foutih attorney after three prior attorneys had been

dismissed); State v. Barrett, 577 A.2d 1167, 1171-72 (Me. 1990).

At an earlier stage in the case, because of Mr. Small's behavior, the court ordered a

competency evaluation of Mr. Small. He refused to cooperate. The forensic evaluator's report,

based on information obtained from other sources and from the evaluator's contact with Mr. Small,

does not support a finding that Mr. Small is not competent to stand trial or to represent himself.

See April 21, 2020 report of Dr. Peter Donnelly, filed under seal in CR-19-141. 3

Once Covid-19 conditions permit a hearing to proceed, further delay would be

unacceptable. 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." State v. Ayers, 464 A.2d 963, 966-67 (Me. 1983). See State v. Dunbar,

2008 ME 182 ,r 8, 960 A.2d 1173 (emphasizing the court's responsibility "to protect the judicial

process and ensure that cases are not unreasonably delayed").

The State has since attempted to bring this case to a resolution by agreeing that it will rely

solely on the pending motion to revoke Mr. Small's probation in CR-16-2622. If Mr. Small's

probation is not revoked, the State will dismiss the indictment in CR-19-141. If Mr. Small's

probation is revoked, the State will also dismiss the indictment in CR-19-141.

Given that Mr. Small is not asserting his right to represent himself, the major concerns set

forth in Fare/ta and McKask/e and the issues raised in the two bar opinions cited in Attorney

3 Dr. Donnelly's repo1t suggests that Mr. Small's refusal of attorneys and his various verbal protests

could result from personality issues. Alternatively, Dr. Donnelly stated that Mr. Small's behavior could
represent a legal strategy on his part. Finally, although Mr. Small's behavior did not seem to Dr. Donnelly
to present a picture of major mental illness, such an illness could not be ruled out. To pursue that possibility,
however, Mr. Small's authorization for release of his records would be essential.
On this record the comt concludes that Mr. Small has the ability to cooperate with counsel even
though he has thus far been unwilling to do so.

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McKenna's motion are not directly applicable in this case. 4 Nevertheless, there remains a need to

have standby counsel available to advise Mr. Small should he seek such advice at the hearing, even

ifhe now objects to standby counsel. See Standard 4-5.3(c) of the ABA Criminal Justice Standard

for the Defense (4th Ed. 2017) - stating that standby counsel should be fully prepared about the

matter in order to offer advice to the umepresented defendant. Such advice could address the

potential benefits and dangers that standby attorney perceives in the course of the litigation. Id It

could also encompass assistance in overcoming routine procedural or evidentiary obstacles that

might hinder an uru-epresented defendant. McKaskle, 465 U.S at 183.

It is also possible that prior to the hearing - or at the hearing itself - Mr. Small might

change his mind and seek to be represented by standby counsel. In that case, ABA Standard 4­

5.3(c) provides that standby counsel should be prepared for the possibility "that the full

representation role should be transferred to defense counsel at some point during the criminal

proceedings."

Attorney McKenna's motion states that he has spoken with Mr. Small and that Mr. Small

has raised unspecified ethical issues about Attorney McKenna' s appointment as standby counsel.

These are presumably the same issues Mr. Small raised in his bar complaint against Attorney Gale.

Since Attorney McKenna is serving as standby counsel at the direction of the court, the court does

not see any basis for an ethical violation on Attorney McKenna's part. The court understands that

Mr. Small objects to the ruling that he has to represent himself and therefore also objects to the

appointment of standby counsel, and Mr. Small has preserved that objection for appeal.

4
Another issue discussed in McKask/e was the possibility that the involvement of standby counsel might
unde1mine the jury's perception that a defendant was exercising his right to represent himself. See 465 U.S.
at 178. That issue does not arise in a probation revocation proceeding tried to the comt.

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If Mr. Small were to retreat from his consistent rejection of all the attorneys that have been

appointed by the comt and were to accept representation by Attorney McKenna, the court would

appoint Mr. McKenna as Mr. Small's counsel instead of as standby counsel.

Accordingly, the scope of Attorney McKenna's representation as standby counsel shall be

as follows:

• to review the discovery;

• to meet (or offer to meet) with Mr. Small to prepare for the probation revocation hearing
and to assist in preparing the defense;

• to be prepared to offer any advice to Mr. Small as to the potential risks and benefits of
tactics and strategies in connection with the hearing;

• to be prepared to advise Mr. Small of ways to overcome procedural or evidentiary
obstacles;

• to be prepared to assist Mr. Small in preserving issues for appeal;

• to be prepared to step in to represent Mr. Small at the hearing if Mr. Small were to agree
that the full representation role should be transferred to Attorney McKenna.

Attorney McKenna' s performance of the above functions, with the exception of reviewing the

discovery and preparing for the hearing, will necessarily depend on the extent to which Mr. Small

seeks assistance from Attorney McKenna and cooperates with him.

The court intends to provide Mr. Small with an opportunity to state all of his objections at

the outset of the hearing. The court also intends to again explain to Mr. Small the disadvantages

of proceeding without an attorney and to see if Mr. Small will accept representation by Mr.

McKenna.

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Given the past history of the case, 5 there is a significant possibility that Mr. Small will

decline to participate in the hearing, will not cease voicing objections, or will otherwise disrupt

the hearing. In that case, the court may have to be guided by ABA Criminal Justice Standard 6-3.8

applicable to Special Functions of the Trial Judge (3d ed. 1999) addressing the case of a disruptive

defendant:

A defendant may be removed from the courtroom during trial when
the defendant's conduct is so disruptive that the trial cannot proceed
in an orderly manner ... The removed defendant ordinarily should
be required to be present in the comi building while the trial is in
progress. The removed defendant should be afforded an opportunity
to hear the proceedings and, at appropriate intervals, be offered on
the record an opportunity to return to the courtroom upon assurance
of good behavior. The offer to return need not be repeated in open
comi each time. A removed defendant who does not hear the
proceedings should be given the opportunity to learn of the
proceedings from defense counsel at reasonable intervals.

In this connection, it bears emphasis that in its footnote discussing the role of standby counsel in

Faretta, 422 U.S. at 834 n.46, the U.S. Supreme Court relied on the D.C. Circuit's decision in

United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972). In Dougherty the D.C. Circuit

(Leventhal, J.) noted that a person's right to represent himself"can be lost by disruptive behavior

during trial, constituting constructive waiver." 473 F.2d at 1124. It went on to discuss the

appointment of standby counsel (which it referred to as "amicus counsel") and stated that a

potentially unruly defendant should be warned that obstructive behavior may constitute a

constructive waiver of the right to self-representation "and, in that event, amicus counsel will be

ready to assume exclusive control of the defense." Id. at 1125 (emphasis added). See Mayberry v.

Pennsylvania, 400 U.S. 455, 467-68 (1971) (Burger, C.J., concurring) (discussing ability of

5
See, e.g., hearings on January 17, 2020, March 13, 2020, September 23, 2020, March 15, 2021,
June 29, 2021, and November 5, 2021. This conduct is discussed in orders dated Januruy 21, 2020; March
c,
19, 2020 11); September 25, 2020; March 15, 2021; July 2, 2021; and November 5, 2021.

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standby counsel to cross-examine witnesses, interpose evidentiary objections, and make closing

argument in a case where a disruptive defendant who has been representing himself has been

removed from the courtroom).

In Mr. Small's case, where he has never stated that he is exercising a right to represent

himself and has always stated that he wants counsel - although he has rejected all of the lawyers

appointed - there would be a strong argument that if Mr. Small is disruptive or declines to

participate in the hearing, standby counsel could take over. This would be true unless Mr. Small

were to expressly communicate that he did not want standby counsel to take any action on his

behalf. In that case Mr. Small should understand that no defense would be offered, although the

State would still have to prove by a preponderance of the evidence that there had been a violation

of Mr. Small's probation conditions.

Accordingly, if Mr. Small were to decline to participate or to be so disruptive that the

hearing cannot proceed in his presence, Attorney McKenna' s scope of representation would be as

follows:

• he should be prepared to defend the motion, to question the witnesses offered by the State,
to present available evidence in defense of Mr. Small, and to periodically attempt to consult
Mr. Small with respect to the defense of the revocation motion.

• if expressly directed by Mr. Small not to take any action on Mr. Small's behalf, he would
honor Mr. Small's wishes.

Because the court has clarified the scope of representation, Attorney McKenna's request

in the alternative to withdraw is denied. Having considered and reconsidered the issue, the court

concludes that, if at all possible, the hearing should proceed with Mr. Small having the availability

of standby counsel despite his unwillingness thus far to cooperate with counsel. It would obviously

be preferable- and in the court's view strongly in Mr. Small's best interests - if Mr. Small would

agree to be represented by Attorney McKenna.

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Attorney McKenna shall advise the clerk's office when he will be ready for the hearing as

provided in the scope ofrepresentation set forth above. This should be done as promptly as possible

given the amount of time that Mr. Small has been in custody.

Dated: January ';':1, 2022

Thomas D. Warren
Justice, Superior Court

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