MACHIAS, Maine — The state’s highest court has upheld a lower court’s decision not to grant a mistrial in a child sex assault case despite the defense attorney’s allegations that a spectator unduly distracted him and the jury during the trial.

Kenneth Frisbee, then 46 and of Addison, was convicted in Washington County Superior Court on Oct. 3, 2014, of unlawful sexual contact with a child under age 12 and of unlawful sexual contact and gross sexual assault on a child under 14. He was sentenced to 12 years in prison with all but five years suspended and four years of probation.





During the trial, Frisbee’s attorney, Jeff Davidson, asked Justice William Stokes to declare a mistrial because of the distracting behavior of a spectator who previously threatened the defense attorney and a juror.

Stokes refused, however, and another attorney, Arnold S. Clark, later argued an appeal for Frisbee before the Maine Supreme Judicial Court. In its ruling dated June 7, the supreme court upheld the superior court decision and determined Frisbee received a fair trial.

“We review a denial of a motion for a mistrial for abuse of discretion … and we will overrule a denial ‘only in the event of prosecutorial bad faith or in exceptionally prejudicial circumstances,’” the decision states. “There is no allegation of prosecutorial bad faith or misconduct here.

“We are not persuaded that Frisbee was deprived of a fair trial, and the trial court did not abuse its discretion in denying the motion for a mistrial,” according to the decision.

According to court documents, the spectator, who is not named, was a former client of the defense attorney and had been convicted of and spent 11 months in prison for threats against Davidson and his family.

The spectator also had previously been prosecuted by the trial judge when Stokes worked for the Maine attorney general’s office. And finally, the spectator had recently been released from prison on charges connected to his threatening to kill the husband of one of the jurors and stalking her teenage daughter.

After Davidson told the judge during jury selection that the spectator’s presence in the courtroom was distracting him, “because the spectator was glaring at him, smiling, making gestures and smirking,” the man was removed from the courtroom for the remainder of jury selection, according to court documents.

Then, during the first day of the trial, the spectator returned to the courtroom and tried to get near the juror whose family he had threatened.

“The court concluded that the spectator’s presence is ‘disruptive and distracting.’ … He cannot be allowed to distract both the defense attorney and the jury or a juror from paying full attention to this case,” the supreme court ruling reads. “The court then indicated that it would not close the courtroom or the courthouse, but it would exclude that spectator from the trial.”

During the second day of trial, however, the spectator made a transcript request and met jurors outside the courthouse, asking them to take a copy of a book he had written.

Davidson moved for a mistrial on the grounds that the spectator’s distraction of the jury interfered with the jurors’ ability to devote their full attention to the evidence.

The judge polled the jurors, however, and all, including the juror whose family had been threatened by the spectator, said they could devote their full attention to the case, provided he was not in the courtroom.

In considering and denying the motion for a mistrial, “the court found that the jurors had been forthright in affirming that they were not distracted by the spectator and could devote their full attention to the case,” the supreme court decision reads.

The supreme court justices pointed out that the Superior Court judge had to balance the rights of the public to attend trials with the rights of the attorney and jurors involved not to be distracted.

“The spectator’s presence and conduct during Frisbee’s trial threatened Frisbee’s right to effective counsel and placed at risk Frisbee’s and the state’s right to an attentive and nondistracted jury,” the decision says. “In counterbalance, as the court recognized, excluding the individual implicated the public’s right to an open trial.”

The rights of the public and the defendant to an open trial are not absolute, and they may be overridden by other rights or interests, according to the decision.

In order to properly balance the rights in question, the court chose “partial closure,” which is “less significant” than fully closing the court to spectators.

“When the trial judge succeeds in removing or curing the distraction, a mistrial may not be necessary,” the decision states. “The brief distraction of a single juror does not rise to the level of extremely prejudicial circumstances that would require us to vacate the trial court’s discretionary denial of a motion for a mistrial.”