Criminal defendants have a right to counsel at initial bail hearings, a Baltimore judge has ruled.

However, Judge Alfred Nance stayed his decision to give the state a chance to appeal.

Nance ruled Friday that the initial bail hearing is a “critical stage” of a criminal proceeding, meaning it is subject to the Sixth Amendment’s right to counsel. The Court of Appeals has previously held such a right extends to other stages of a criminal proceeding but that a bail review hearing was not critical.

“The judge embraced many grounds for ensuring poor people are guaranteed representation when they first appear before a judicial officer,” said Douglas L. Colbert, a professor at the University of Maryland School of Law who heads the school’s Access to Justice Clinic.

Maryland Public Defender Paul B. DeWolfe Jr. said his office will be meeting with counsel next week to work on an appeal. A spokeswoman for the attorney general’s office said it was still reviewing the decision.

It was Colbert and his students, along with pro bono help from Venable LLP in Baltimore, who initially filed a class-action lawsuit in Baltimore City Circuit Court on behalf of several indigent defendants in November 2006. The lawsuit challenged procedures at the city’s Central Booking and Intake Facility, where a District Court commissioner sets the initial bail.

Judges subsequently hold bail review hearings on the first business day after a defendant is in custody, which could mean a Monday if a defendant is arrested on a Friday. Only the city, Montgomery and Harford counties make public defenders available for bail review hearings.

“There can be no doubt that the appearance before a Commissioner, where each Plaintiff was informed of the accusations that were lodged and where each had restrictions placed on his or her liberty, constitutes a critical stage for purposes of the right of counsel,” Nance wrote Friday. “Representation by counsel at the initial bail hearings would provide substantial benefit to the detainees; including to provide verifiable information about the arrestee that would assist the Commissioner to make a more informed decision about the arrestee.”

Michael Schatzow, a Venable partner, said studies have shown providing a lawyer for a bail hearing is less expensive than incarcerating a defendant awaiting trial.

“Not only will this do more justice but the system will save money,” Schatzow said.

Everywhere, all the time

DeWolfe said the public defender’s office agreed with the plaintiffs that a right to counsel exists at the bail stage. But DeWolfe will argue on appeal there is no remedy available for the ruling, which he said would require public defenders be available for bail hearings around the clock across the state.

“We don’t have the resources to represent all individuals that would be implicated in Judge Nance’s decision,” he said.

Nance acknowledged as much in staying his decision, writing he was aware the defendants raised issues “related to budgetary matters” in arguments.

The judge initially granted the attorney general’s motion for summary judgment in 2007, finding counsel was not required by the Constitution or state law.

The plaintiffs appealed the decision. The Court of Appeals took the case, but in March, sent it back to the circuit court after finding the public defender’s office should have been named as defendant.

Nance cited in Friday’s decision Rothgery v. Gillespie County, Tex., a 2008 Supreme Court opinion holding that a criminal defendant should have been granted counsel for his initial appearance before a magistrate, where he learned the charges against him and bail was set.

“This Court finds the hearing before the magistrate in Rothgery to be similar to the initial bail hearing before the Commissioner in this case,” Nance wrote.

Mitchell Y. Mirviss, who worked with Schatzow on the case, said the finding in favor of the constitutional claim was important.

“We hope it will make it easier to be upheld if it goes up to the Court of Appeals,” Mirviss said.

Mirviss and Schatzow praised the law students for bringing the issue to their attention and working on the case. Colbert, in turn, praised the lawyers’ work and said the students he has told so far about Nance’s ruling are “ecstatic.”

“This was one of the best collaborations between the public and private bar,” he said. “It was a really remarkable teaching and learning experience for all of us.”

The case is Quinton Richmond et al. v. District Court of Maryland et al., Baltimore City Circuit Court No. 24-C-06-009911.

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