October 05, 2010

Baltimore Circuit Court Holds Criminal Defendants Entitled to Appointed Counsel at Bail Hearings – Decision Expected to Apply Statewide

7 min

Venable LLP, with the support of a University of Maryland Law School clinic, represents a class of indigent defendants in major right to counsel ruling; Decision should save state huge imprisonment costs while safeguarding defendants’ constitutional rights to counsel

Baltimore, MD (October 5, 2010) – In what could be a major advance in safeguarding the rights of criminal defendants, the Baltimore City Circuit Court has ruled that indigent defendants have the right to counsel at bail hearings. If upheld on appeal, the ruling is expected to apply to all of Maryland and would represent an historic leap in constitutional protection for the accused in the state.

The decision overturns the current bail system in Maryland, under which criminal defendants taken into custody and charged in district court are brought, without an appointed public defender, to a commissioner within 24 hours of arrest for determination of bail and probable cause. They are not represented by counsel in these proceedings and must somehow persuade the commissioner of their employment and family circumstances without the ability to corroborate their statements and without being told of the risk of self-incrimination. If the commissioner sets or denies bail, the defendant is entitled to receive a “bail review” hearing before a district court judge within the next 24-to-72 hours. One expert estimates that a quarter of all defendants in Baltimore City are not represented by counsel at bail review hearings and must wait 30 days before receiving assistance. Most Maryland jurisdictions do not provide counsel at any bail proceedings.

According to the ruling issued on October 1 by Baltimore Circuit Judge Alfred Nance: “The initial bail hearing before the Commissioner holds significant consequences to the accused which involves potential prejudice to the defendant’s rights’; it decides the defendant’s liberty. If bail is denied or set at a level that the defendant cannot afford, the defendant is deprived of his or her freedom, a fundamental right… This Court finds any stage that could result in a finding that would place the defendant in jeopardy of loss of liberty or being confined, the defendant is entitled to counsel, and proceeding with the matter after representation is requested to be a violation of due process.”

Judge Nance found that the denial of counsel violated federal and state constitutional rights to counsel and due process and also violated the State’s Public Defender Act, which requires the Public Defender to represent indigent defendants at all stages of a criminal proceeding. Judge Nance’s decision reverses his prior ruling from 2007, when he had found that counsel was not constitutionally or statutorily required.

The decision echoes a 2008 U.S. Supreme Court decision – Rothgery v. Gillespie, County, Texas – which held that an initial appearance before a judicial officer where bail is assessed constitutes a prosecutorial event that triggers attachment of the Sixth Amendment right to counsel. In Rothgery, the Court held that “by the time a defendant is brought before a judicial officer, is informed of a formally lodged accusation, and has restrictions imposed on his liberty in aid of the prosecution, the State’s relationship with the defendant has become solidly adversarial.”

Venable LLP represents the large class of plaintiffs on a pro bono basis, in collaboration with the University of Maryland Law School Access to Justice and Bail Clinic. Venable partners Michael Schatzow and Mitchell Mirviss argued the case before Judge Nance, assisted by Venable associate Alex Hortis. University of Maryland Law Professor Douglas Colbert, head of the Access to Justice Clinic, and the law students of the clinic brought the case to Venable. Over one weekend, the students met with the named plaintiffs, instructed them of their right to counsel and their need to ask for counsel at their bail proceedings, and worked with Venable to draft the complaint filed that Monday morning.

“This is truly a milestone win on behalf of fairness and common sense in Maryland’s criminal justice system and represents an excellent collaboration with Maryland Law School,” Mr. Schatzow said. “Denying representation at the first bail hearing has severe consequences, for both defendants and the state. In addition to spending up to three days in jail without recourse, they are separated from family, kept from their jobs, and denied any real chance to arrange child care or other critical needs. For the state, the prolonged detention is costly, wasteful, and quite often unnecessary. Prosecutors eventually dismiss without trial or decline to prosecute approximately 60-70% of the charges brought against Baltimore City defendants.” He noted that the first bail decision often determines bail for the rest of the case and that multiple studies have found that the dollar amount of bail is often lower when counsel is present.

Under the current system, defendants are routinely incarcerated for up to three days without having any representation. The case a 30-year old graduate student at the Johns Hopkins Bloomberg School of Public Health highlights the problem. He was arrested on a charge of Driving Under the Influence. Despite the fact that he had no prior criminal record, the commissioner inexplicably set his bail at $10,000, which he could not pay, resulting in his continued incarceration in the Central Booking lock-up. His bail review hearing was three days later, where both the prosecutor and his public defender quickly agreed that the bail was inappropriate, and ordered him released on recognizance. Until his release, the defendant was unable to contact anyone and none of his family members knew that he had been arrested and incarcerated for the three days.

According to studies cited in the plaintiffs’ brief, “Commissioners require bail in over 60% of the Central Booking cases. Criminal suspects who are not represented 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 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 presence of counsel significantly reduces the likelihood that defendants will not be kept in jail. In one study over an 18-month period, the Baltimore City Lawyers at Bail Project represented nearly 4,000 indigent defendants charged with non-violent crimes. Individuals represented at bail review hearings were more than 2½ times as likely as unrepresented defendants to be released on recognizance. Additionally, 2½ times as many represented defendants had their bail reduced to an affordable amount.

According to Judge Nance’s decision: “For purposes of the right to counsel, commencement is pegged to the initiation of adversary judicial criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information or arraignment. The rule is not mere formalism, but a recognition of the point at which the government has committed itself to prosecute, the adverse positions of government and defendant have solidified, and the accused finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.”

Venable’s Mr. Mirviss said Judge Nance’s ruling could be a watershed for indigent rights in Maryland. “In the 21st century, low-income people should not have to stand in front of a commissioner or judge and face weeks of possible incarceration while awaiting trial, without a public defender there to represent them,” he said.

The case, titled Quinton Richmond, et. al v. District Court of Maryland, et. al., was originally filed in November 2006. In January 2009, it was heard by Maryland’s top appellate court, which sent it back to Judge Nance so that the Public Defender could be added as a party.


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