Counsel Sought at Post-Arrest Hearings

Suit Seeks to Ease First Bail Appearance

A class-action lawsuit filed recently challenges Maryland's long-standing practice of denying defendants the right to counsel when they first appear before a District Court commissioner, the little noted but often significant proceeding during which bail, if any, is initially set.

The right to have an attorney at trial has been established for decades, but in Maryland, suspects are generally on their own in that first post-arrest appearance. The state's method of setting bail is "highly unusual," said lawyer Doug Colbert, who filed the lawsuit in state court in Baltimore with the help of students from the University of Maryland, where he is a professor, and lawyers from the firm Venable LLP.

Judges conduct bail review hearings on the first business day after a suspect is taken into custody. But prior to that review, defendants appear before a commissioner who determines whether to set bail and in what amount. That means that if suspects are arrested on a Friday night, a commissioner -- who is required to have a college degree but not to be a lawyer -- in effect determines whether they are held over the weekend.

Although they are permitted to attend, private attorneys generally do not; indigent suspects are not entitled to legal representation. The hearings are neither recorded nor transcribed.

"You have a judicial hearing where no one knows what has taken place," Colbert said.

David W. Weissert, who oversees the commissioner system in Maryland, declined to comment on the lawsuit. A spokeswoman for the state judiciary referred questions to the attorney general's office, which also declined to comment.

William E. Nolan, general counsel to the state public defender's office, said in a statement that his office "is supportive of all defendants receiving all of their rights as guaranteed to them by the Constitution."

Those behind the lawsuit believe that, if successful, it will reverberate at least across the state. But each of the 12 plaintiffs named in the suit appeared before a commissioner at the Baltimore Central Booking and Intake Facility.

According to the lawsuit, each plaintiff was indigent, each asked for counsel and in each case that request was denied. In one instance, bail was set at $50,000 for a male charged with simple drug possession, the lawsuit says. In another, bail was set at $10,000 for a 42-year-old man charged with possession of marijuana, it says.

"Criminal suspects who are not represented by counsel at a bail hearing are more likely to have shorter and more perfunctory hearings, less likely to be released on their own recognizance, more likely to have a higher and unaffordable bail, and more likely either to serve additional time in jail prior to their eventual release or to pay the expense of a bail bondsman's non-refundable fee to regain their freedom," the complaint says.

John Clark, a deputy director at the nonprofit Pretrial Services Resource Center in Washington, said Colbert's research has convincingly shown the value of having an attorney present during early bail proceedings.

"There's a very important decision being made about whether this person is going to be released or be held and there's no one there . . . to argue on their behalf," said Clark, whose organization promotes practices intended to improve court appearance rates, reduce recidivism and in other ways improve pretrial management.

Defendants are limited in their ability to act as their own advocates, as anything they say can be used against them in court later.

Still, many other states also deny defendants the right to counsel at such proceedings, Clark said, and providing representation -- around the clock and on weekends -- may present logistical challenges and drain resources.

The lawsuit contends that, under state law, defendants are entitled to counsel at "all stages" of a criminal proceeding. Yet the Court of Appeals in 2004 said that defendants are not entitled to counsel at bail review hearings, which the court said are not a "critical stage" of the legal process.

In that case, the court ruled on an issue that it took up on its own, without hearing argument on that specific point from either side. Colbert said he hoped the lawsuit would allow the court, the state's highest, to revisit the question.