Md. Appeals Court to Rule on Public Defender Access


Maryland officials, Sixth Amendment activists and other stakeholders are eagerly awaiting the Court of Appeals ruling on a case that could have far-reaching effects on indigent arrestees’ right to counsel.

In January, the state’s highest court heard oral arguments in Paul DeWolfe Jr. et al v. Quinton Richmond Jr. et al on whether lower-income arrestees had the constitutional right to a public defender at the initial stage of the judicial process.

This time the plaintiffs in DeWolfe v. Richmond are mounting a constitutional challenge to the new state law. In the new challenge the Court of Appeals is to consider at what stage in the criminal justice process does the right to counsel for indigent clients kick in. This time the challenge is based on the state law's effect on an accused person's Sixth and 14th amendment rights.

“It’s going to be a significant decision one way or another,” said David Carroll, executive director of the Sixth Amendment Center, a nonprofit dedicated to ensuring that every citizen has the constitutional right to counsel.

In 2011, the state’s highest court ruled in DeWolfe v. Richmond that Maryland’s statute required that indigent arrestees had the right to a public defender at their initial appearance before a District Court commissioner, who determines whether there was probable cause for the arrest and, if so, whether the defendant should be released on his or her own recognizance, on bail, or not at all.

In 2012, the General Assembly amended the statute to counter that ruling, making public defenders available only after an indigent client has been held as per a commissioner’s decision, and has to appear before a District Court judge for a bail review hearing.

But plaintiffs alleged that the state’s scheme tramples on their constitutional rights under the Sixth and 14th Amendments. The Supreme Court ruled in Rothgery vs. Gillespie that commencement of "adversary judicial proceedings" triggers an accused person's Sixth Amendment right to appointed counsel.

Plaintiffs and others argued that the appearance before a commissioner is such a “critical” stage because the arrestee is subject to the loss of liberty. Under Maryland law, the arrestee has the right to appear before a judge for a bail review immediately after the commissioner’s decision. However, that person could remain incarcerated for days if he or she is arrested on the weekend or before a holiday since judges only work on weekdays.

However, in the Jan. 4 proceedings, the state’s lawyer argued that “there is no constitutional right to a bail determination within 48 hours of arrest; the right is to a determination of probable cause and Maryland provides that,” according to a video recording posted on the court’s website.

The plaintiffs further contended that judges usually rubber stamp the commissioner’s decision—making it difficult for public defenders to “cure” whatever harm may have been incurred during the client’s appearance before the commissioner.

“We’re talking about putting people in jail without representation,” a lawyer for the plaintiffs argued in the Jan. 4 hearing.

“[Arrestees] need to be counseled from the get-go,” Carroll, the Sixth Amendment activist, added.

“The law has become very complex. The rules of procedure are difficult to understand for attorneys, much less for someone who has mental health issues, or is drug-dependent or otherwise.”

The average arrestee may have other considerations, beyond the legal ramifications, on his or her mind—that if he remains in jail his spouse might leave or he may lose his job; she may even be thinking about getting his next drug fix.

“People want to get released as soon as possible but may not know all the collateral damage of their decision,” Carroll continued. “So, someone needs to be there who understands the complexities of the law.”

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