Md. High Court to Weigh Representation at Initial Hearings
By Henri E. Cauvin
Washington Post Staff Writer
Friday, January 9, 2009
Myron Singleton wanted a lawyer. He was charged with misdemeanor marijuana possession and was appearing before a district court commissioner who would set his bail. Singleton couldn't afford an attorney, and he asked that one be appointed by the state.
The hearing in a Baltimore jail went forward without a lawyer for the defendant, just as it would have for almost any other defendant arrested in Maryland, and Singleton was ordered held on $10,000 bail.
Today, the state's highest court takes up the question of whether the right to counsel extends to these brief initial appearances. The answer could have considerable fiscal implications for the state.
Anyone who has watched a few episodes of "Law & Order" might assume that defense lawyers are at their clients' side from the outset of a case. But that is hardly ever true, and in Maryland, an indigent defendant who cannot make bail will not see a lawyer for at least a couple of days, sometimes longer.
Indeed, unless a defendant already has a lawyer, and the lawyer can make it to what is often a middle-of-the-night hearing in a county jail, the defendant will go it alone, answering questions that will help determine what, if any, bond is set.
Attorneys for Singleton and 10 others claim that an indigent person brought before a district court commissioner is entitled to be represented at that hearing by an attorney paid for by the state.
The plaintiffs in a class-action suit, Quinton Richmond et al. v. District Court of Maryland et al., cite the Maryland Public Defender Act, which says that representation shall "extend to all stages in the proceedings." They also cite the constitutional rights to counsel and to due process.
"There simply is no legal justification for bail proceedings to constitute the one and only exception to an otherwise absolute right to counsel in Maryland when a loss of liberty is threatened," they write in their brief to the Court of Appeals.
The Maryland attorney general's office, which is representing the state, argues that such hearings are not a critical stage in a criminal prosecution and that defendants are not entitled to attorneys.
The National Association of Criminal Defense Lawyers and the NAACP Legal Defense and Educational Fund are among several organizations that filed friend-of-the-court briefs backing the challenge to Maryland's practices.
Extending the right to counsel to the commissioner hearings would be costly. In 2007, the state public defender's office, which takes the position that staffing such appearances would be a poor use of resources, estimated that doing so would add $24 million to a budget of $85 million.
"Our job is to help people, and if we thought it were helpful, we would be at the forefront of this," said Pete Rose, general counsel of the Office of the Public Defender.
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.
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