Suit Seeks Early Counsel for Defendants

The notion of providing counsel at the earliest stages of the judicial process is far from universal and is more commonly done in big cities such as the District, where a defendant is assigned a lawyer before making an initial appearance before a magistrate judge. Virginia's practices are similar to Maryland's.

Aside from the cost, some in the defense bar aren't sure that providing attorneys at the hearings would make sense. Some defendants, especially those arrested on minor charges, might end up spending more time in jail as a result. Instead of having a hearing and being released right away, a defendant might wait hours for a lawyer to show up, especially if the arrest occurred over the weekend or at night.

"I can see where it would slow down the process," said William C. Brennan Jr., a defense lawyer in Greenbelt. "I like that they see a judicial officer rapidly."

Appointed by the court, commissioners are usually not lawyers but are trained by the state. Hearings must take place within 24 hours of arrest and are held round-the-clock. They last 10 to 20 minutes, with the commissioner outlining the charges, explaining the process and asking the defendant about family, employment and criminal history before deciding on bond.

Another concern is that because commissioner hearings are conducted so soon after arrest, usually at a jail or police station, a defense lawyer would not have time to assess a defendant's background and make an intelligent argument.

Other lawyers, however, say the system needs to be fair for everyone, not just those who have ready access to private attorneys.

"It's fundamental fairness that somebody has a lawyer when liberty is at stake," said Chris Flohr, an Anne Arundel defense lawyer and a former president of the Maryland Criminal Defense Attorneys Association.

Even if there is not much time to gather information, a lawyer still can help, said Todd E. Edelman, who teaches in the criminal justice clinic at Georgetown University Law Center.

"You can call family members, call an employer, call a probation or parole officer," said Edelman, a former staff lawyer and training director at the D.C. Public Defender Service. "That can make a huge difference. I think it's preposterous to say you can't do anything."

Myron Singleton could not make bail right away, so he spent four days in jail until he could pay a bail bondsman a $1,000 nonrefundable fee on the bail that was set before he had a lawyer.

University of Maryland law professor Douglas Colbert and some of his students, working with a pro bono team of lawyers from the Venable law firm, challenged Maryland's practices on behalf of Singleton and 10 other Baltimore defendants.

A Circuit Court judge found for the state in 2007, ruling that under Maryland's Public Defender Act, the defendants were not entitled to counsel at commissioner hearings because such proceedings were not a "critical stage" of the process. That ruling set up today's appeal.