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Md.’s top court finds constitutional right to lawyer at bail

4-3 decision strikes down General Assembly’s 2012 fix

Criminal defendants in Maryland have a constitutional right to counsel at their initial bail hearings, the state’s top court ruled Wednesday in a decision that could require the state to pay $28 million annually to provide the legal assistance.

The General Assembly did not go far enough last year, when it passed a law that required lawyers at bail review hearings but not when bail is first set, the Court of Appeals held in a 4-3 split.

The court’s majority focused on the threat of immediate incarceration for detainees who cannot come up with the amount set by the commissioner at the initial bail hearing. The dissenters focused on the temporary nature of the commissioner’s decision, which is usually reviewed by a judge within 24 hours.

Maryland Public Defender Paul B. DeWolfe said he might ask the court to delay implementation of its decision, set for 30 days hence, to enable him to seek from the General Assembly the $28 million it will cost to provide representation at about 177,000 bail hearings each year at 188 locations.

The General Assembly meets from January to April. For the current fiscal year, it allocated $94 million for all services provided by the Office of the Public Defender.

“Obviously, the court is signaling to the government that this is a right that needs to be implemented and by implication it is a right that needs to be fully funded,” DeWolfe said.

Providing counsel at initial bail hearings is “an enormous undertaking for an agency that is already struggling to provide competent counsel to our clients,” he added. “But the court has spoken on the issue loud and clear.”

State Sen. Brian E. Frosh, who chairs the Senate Judicial Proceedings Committee, said there is no legislative way to cushion the financial blow of having to fund a constitutional right.

“We’re going to have to provide counsel for people who go before a district court commissioner,” said Frosh, D-Montgomery. “It ain’t cheap.”

Maryland Attorney General Douglas F. Gansler, through a spokesman, declined to comment on the court’s decision. His office had urged the high court to find that no right exists to counsel at initial bail hearings.

The majority rejected that stance on Wednesday.

Under Article 24 of the Declaration of Rights — the state constitution’s due-process provision — the right to counsel “attaches in any proceeding that may result in the defendant’s incarceration,” including an initial bail hearing, retired Judge John C. Eldridge wrote for the majority.

Chief Judge Mary Ellen Barbera dissented, arguing the quick-review process obviates a right to counsel at initial review.

“The initial bail hearing before a commissioner does not result in a final determination of incarceration because no decision made by a commissioner will lead to a defendant’s languishing in custody without judicial review,” Barbera wrote. “The very fact of speedy review of the commissioner’s preliminary determination, by a judge at a formal court proceeding where defense counsel can argue against the commissioner’s initial bail decision, negates any realistic concern about unfair procedural process.”

Wednesday’s decision is the high court’s second on the issue of counsel at initial bail hearings. In January 2012, the court found that the state Public Defender Act, as it was then written, required counsel to be present at the hearings.

Barbera wrote the court’s opinion in that case, which was based solely on the statute; it did not reach the constitutional issue.

The General Assembly responded in 2012 by amending the statute to exclude the requirement of counsel’s presence at initial bail hearings. Legislators, however, added the requirement that counsel be present at bail review hearings, as already was the practice in some of the state’s jurisdictions.

The amended law also provided that anything an unrepresented defendant says at an initial bail hearing cannot be used against him or her at a subsequent legal proceeding.

Lawyers who challenged the old law on behalf of indigent defendants returned to the high court this January to argue that the Constitution requires counsel to be present at the initial hearing.

“This is a great day for justice in Maryland and a great day for people accused of crime in Maryland,” attorney Michael Schatzow said after the court agreed with his position.

Schatzow added that state taxpayers will benefit, as fewer dollars will be spent on incarcerating people before trial because they will be adequately represented by counsel at the initial bail hearing.

“Right now we have a system where poor people don’t know what to say to the judge” or commissioner, said Schatzow, of Venable LLP in Baltimore. “All of those things a lawyer can do and a lawyer can do well.”

Law professor Douglas Colbert, who also served on the legal team, called the decision “a remarkable, long-overdue victory for people’s right to counsel when they first appear before a judicial officer.” Colbert directs the Access to Justice Clinic at the University of Maryland Francis King Carey School of Law.

State, not federal

Eldridge, writing for the majority, said the court was relying exclusively on the Maryland Constitution. This distinction forecloses the possibility of an appeal to the Supreme Court, which resolves disputes involving federal law or the U.S. Constitution, Schatzow said.

“As a result this case has finally come to an end,” he added. “We do not anticipate additional reviews of this decision.”

Eldridge was joined in his opinion by former Chief Judge Robert M. Bell and Judges Lynne A. Battaglia and Clayton Greene Jr. Eldridge, a retired judge, was sitting by special assignment. Bell, who retired in July, was chief judge when the court reheard the case in January.

Judges Glenn T. Harrell Jr. and Sally D. Adkins joined Barbera’s dissent.

The litigation began in November 2006 in Baltimore City Circuit Court on behalf of 11 indigent defendants. The class action challenged procedures at the city’s Central Booking and Intake Facility, where a Maryland District Court commissioner sets the initial bail.

Judges then hold bail review hearings on the first business day after a defendant is placed in custody.

A circuit court judge originally granted summary judgment for the state, but the Court of Appeals sent the case back in March 2010 with instructions to add the public defender as a party.

That October, Judge Alfred Nance ruled there was a right to counsel under state law, a decision the Court of Appeals affirmed in January 2012.

Because of motions for reconsideration and the legislative response, the 2012 ruling never went into effect.

The case was reargued on constitutional grounds a year later, leading to the opinion published Wednesday.



DeWolfe et al. v. Richmond et al., CA No. 34, Sept. Term 2011. Reported. Opinion by Eldridge, J. (Retired, specially assigned). Dissent by Barbera, C.J. Argued Jan. 4, 2013. Filed Sept. 25, 2013.


Do criminal defendants have a constitutional right to counsel at initial bail hearings?


Yes; Article 24 of the Maryland Declaration of Rights provides that the right to counsel “attaches in any proceeding that may result in the defendant’s incarceration.”


Julia Doyle Bernhardt and Aron B. Goetzl for petitioners; Michael Schatzow for respondents.

RecordFax # 13-0925-20 (31 pages).