Sunday, July 20, 2008

On June 29, Ronnie L. White was strangled in the Prince George's County jail, where he had been held on charges of killing a county police officer. If Maryland had met its constitutional obligation to provide White with a lawyer after he was charged with homicide, he might well be alive today.

On June 23, the U.S. Supreme Court ruled in Rothgery v. Gillespie County, Texas that the Sixth Amendment requires that a criminal defendant be given a lawyer at an initial appearance before a magistrate judge -- a "commissioner" in Maryland -- when the defendant is told what he is charged with and that his liberty is restricted. (The court noted that it was simply repeating a constitutional principle first announced in 1977.) Four days later, White was arrested and brought before a commissioner in Hyattsville, where he was informed of the charges against him and ordered to be detained without bond in the Prince George's County jail; White was not represented by a lawyer at the hearing before the commissioner, and less than 36 hours later, he was dead.

What if White had been afforded a lawyer at the initial proceeding before the commissioner, as the Sixth Amendment required? He was not, of course, a candidate for immediate release on bail; still, a lawyer would have explained to the commissioner (who, in Maryland, is usually not a lawyer) that White could be lawfully detained someplace other than Prince George's County, and that the circumstances of the case demanded that he be jailed elsewhere. If a lawyer had been there to argue it, it seems inconceivable that the commissioner would not have ordered White held in some other county's jail -- which might have kept him alive to face his ultimate judgment before a court of law.

What happened to White is not unusual in Maryland's commissioner courts, where the constitutional duty to provide lawyers to defendants who need them is routinely ignored. More disturbing, the commissioner courts practice reflects a pattern in Maryland's first-tier criminal courts: The same lack of concern about the right to counsel typifies the state's district courts, the tribunals that try misdemeanors and other minor criminal charges.

Last summer we supervised a court observation project to learn whether a significant number of people charged with misdemeanor offenses in Montgomery County's District Court have to face criminal charges without the assistance of lawyers to act in their behalf. The results were surprising and alarming: Over the course of a year, more than 1,000 misdemeanor defendants without lawyers will be convicted or found in violation of conditions of probation, and more than 300 uncounseled defendants will be sentenced to jail. Even those who do not go to jail will face diminished job opportunities, the possible loss of eligibility for public housing or student loans, and other harmful consequences.

In most of these cases, the defendants come from the ranks of the working poor -- people who earn too much money to qualify for free public-defender representation but who do not make enough money to pay for the services of private lawyers. Under current Maryland guidelines, for example, the head of a household of three who makes $16,700 a year -- even though obviously lacking sufficient income to hire a private lawyer -- is nonetheless ineligible for a public defender in a misdemeanor case. This lack of access to defense lawyers does not seem to trouble the Maryland courts; in both its district courts and commissioner courts, Maryland has demonstrated palpable indifference to the importance of the right to counsel.

Gideon v. Wainwright-- the Supreme Court's landmark 1963 decision that first required states to provide lawyers to poor defendants in criminal cases -- emphasized that defense lawyers are "necessities, not luxuries." Maryland needs to heed that admonition and focus immediately on the fairness of the justice meted out in its front-line criminal courts lest there be, unnecessarily, more Ronnie Whites.

-- William G. McLain

-- Stephen B. Mercer

Washington

The writers are professors at the University of the District of Columbia's David A. Clarke School of Law.