Cape Fear Comes To Life

The Maine Supreme Judicial Court affirmed an improper sexual contact conviction, holding that the trial judge's handling of a disruptive spectator was appropriate and that a mistrial was properly denied.

During jury selection, [defendant] Frisbee’s attorney noticed that one of his former clients, who had no connection to this matter, was in the courtroom. The spectator had been convicted of, and had spent eleven months in prison for, threats against Frisbee’s attorney and his family.

Specifically, the spectator had threatened to drown Frisbee’s attorney’s children in the brook behind Frisbee’s attorney’s home. (footnote one)

Frisbee’s attorney was not the only one in the courtroom who had a history with this man. Before becoming a judge, the trial judge had been a prosecutor, and he had prosecuted the spectator some twenty years prior, resulting in the spectator being sentenced to jail. The State’s attorney had also prosecuted the spectator for the threats against Frisbee’s attorney and his family. Finally, the spectator had just been released from prison for charges of criminal threatening involving one of the potential jurors—juror 116—who would later be empaneled on the case.

Initially, the court asked the judicial marshals to move the spectator so he would not be directly behind Frisbee’s attorney during voir dire of potential jurors, but Frisbee’s attorney continued to be distracted because the spectator was glaring at him, smiling, making gestures, and smirking. The court, noting that Frisbee’s attorney’s fears and concerns regarding the spectator were not “fanciful and not an exaggeration,” then instructed the judicial marshals to remove the spectator should he reappear in the courtroom during the remainder of jury selection in order to protect Frisbee’s rights to effective assistance of counsel and prevent compromising Frisbee’s attorney’s professional responsibilities to his client. Jury selection continued without incident.

Approximately half-way through the first day of the trial, a marshal informed the court that the spectator was in the courtroom again and had moved closer to juror 116. The court immediately ordered a brief recess. The court, the State, and Frisbee’s attorney discussed the spectator’s arrival. Frisbee’s attorney, who had heard reports that the spectator had recently been seen in the community with a weapon, told the judge that he would not reenter the courtroom until the spectator had been screened by security. The court, considering the spectator’s significant history with juror 116 and with the defense attorney, directed security to take the spectator through security screening. The court also interviewed juror 116, who provided her history with the spectator.  She stated that she was “very distracted” by the spectator’s presence in the courtroom, but that she would not continue to be distracted as long as he was removed from the courtroom.

After the judge excluded the spectator from the courtroom

On the second day of trial, the court was informed that the spectator had been in the building, had made a transcript request, and had been approaching jurors inside and outside the courthouse that morning and asking them to take a copy of a book that he had written. Frisbee’s attorney requested that the jury be sequestered for the remainder of trial. The court undertook a voir dire of each juror individually to ask whether the spectator had been a distraction or would influence each juror’s ability to remain fair and impartial in deciding the case. Several of the jurors had seen the spectator, and several had heard that the spectator had stalked one of the jurors and her family. One juror stated that “some of the ladies on the jury are upset, disturbed.” However, all of the jurors except for juror 116 stated that they had not been distracted by the spectator’s presence, and all of the jurors stated that the spectator in no way would affect their ability to be fair and impartial. The court did not grant Frisbee’s attorney’s request for sequestration.

 Later that same morning, a judicial marshal alerted the court and the parties that the spectator had left his notebook at the courthouse. In the back of the notebook, there was a note that read, “I wish you were all dead, but since you’re not I hope you all die as soon as possible. And with as much agony as possible.” 

After the notebook was found, Frisbee moved for a mistrial on the ground that the spectator’s distraction of the jury on the previous day had interfered with the jurors’ ability to devote their full attention to the evidence on that day. In considering the motion, the court found that the jurors had been forthright during voir dire earlier in affirming that they were not distracted by the spectator and could devote their full attention to the case. In addition, the court noted that it had ordered a recess as soon as the spectator’s presence had been noted the previous day. It thus concluded that “the likelihood that there was in fact distraction is low,” and it denied Frisbee’s motion for a mistrial.

The court identified the competing factors presented by the facts and affirmed the action of the trial court .

BDN Maine has details about the decision and circumstances.  (Mike Frisch)