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Court of Appeals: Judges must appoint counsel if public defender is discharged

Defense calls high-court ruling victory for constitutional right

The Courts of Appeal building in Annapolis. (The Daily Record File)

The Courts of Appeal building in Annapolis. (The Daily Record File)

Circuit court judges must appoint counsel for indigent criminal defendants who fire, with the judges’ approval, not only their public defender but the Office of Public Defender and still want an attorney, Maryland’s top court has unanimously ruled.

The Court of Appeals said a trial judge erroneously interpreted a defendant’s court-approved dismissal of the public defender’s office as a waiver of his right to counsel. The judge, having found Alexander Dykes’ request meritorious under the rules of criminal procedure, was obliged to use the court’s “inherent authority” to appoint a defense attorney, the high court said in overturning Dykes’ burglary conviction.

Dykes ultimately represented himself at trial.

“When an indigent defendant asks to discharge appointed counsel and the trial court determines, after conducting the inquiry required by Rule 4-215(e), that the defendant has a meritorious reason to discharge counsel, the decision to discharge counsel is not itself a waiver of appointed counsel,” Judge Robert N. McDonald wrote for the high court last week. “If an indigent defendant has discharged appointed counsel for a meritorious reason and the Office of the Public Defender is unable or unwilling to provide new counsel, the trial court may appoint counsel for that defendant pursuant to its inherent authority.”

Brian S. Kleinbord, of the Maryland attorney general’s office, said in an email that the high court’s decision is “yet another case that points up the confusion surrounding the waiver of counsel rule.”

“This rule results in a disproportionate amount of appellate litigation and far too many convictions being reversed,” said Kleinbord, who heads the attorney general’s criminal-appeals division. “Trial judges are faced with an extremely difficult task in attempting to comply with this rule, not to mention the many judicial glosses that do not even appear in the rule itself. In this case, six different judges over the span of 10 pretrial hearings tried to navigate this rule, only to have the appellate court tell them they made a mistake.”

But Assistant Maryland Public Defender Michael Torres, Dykes’ appellate counsel, praised the high court’s decision as a victory for the right of the accused to legal representation.
“It’s the first [Court of Appeals] case that is really focused on what the court should do if it finds a meritorious reason for discharge” of counsel at the defendant’s request, Torres said. “It reaffirms that the court is the ultimate protector of the right to counsel. It reaffirms that the court has the authority to appoint counsel.”

‘Palpable distrust’

Dykes was awaiting trial for an October 2010 home burglary in Baltimore County when he grew distrustful of his first two assigned public defenders and the public defender’s office generally. Dykes said his attorneys had wrongfully waived his right to a pretrial hearing and that the office had manipulated evidence and was conspiring with the Baltimore County state’s attorney’s office.

Baltimore County Circuit Judge John J. Nagle III granted Dykes’ request to discharge counsel, saying his “palpable and obvious distrust” for the public defender’s office was a meritorious reason for his request to fire not only his attorney but the entire office.

Nagle, however, added that the discharge of counsel meant that Dykes would have to represent himself, which Dykes initially accepted but then asked for court-appointed counsel when the case was reassigned to Judge John G. Turnbull II.

Turnbull rejected Dykes’ request, as did Judge Susan Souder when the case was reassigned to her. Souder told Dykes that she lacked the authority to appoint an attorney for him, according to McDonald’s opinion.

Dykes represented himself at the two-day trial in May 2013, after which a jury found him guilty of first-degree burglary and malicious destruction of property less than $500. He was sentenced to 20 years in prison.

With Torres as Dykes’ counsel, the Court of Special Appeals affirmed the conviction in an unreported opinion, prompting Dykes’ successful appeal – with Torres continuing as counsel – to the high court.

Torres said he had a “good working relationship” with Dykes, despite his client’s earlier displeasure with the Office of Public Defender.

“Mr. Dykes and I were able to reach common ground and be on the same page,” Torres added.

Clarifying Rule 4-215(e)

In ruling for Dykes, the Court of Appeals noted that the trial judges may have been confused by Rule 4-215(e), which enables defendants to retain new counsel but “does not explicitly address” if and when an indigent defendant is entitled to a court-appointed attorney.

“For an indigent defendant, however, an opportunity to retain counsel is meaningless if the OPD declines to provide an attorney and the court believes it has no authority to appoint counsel,” McDonald wrote, noting the right to counsel is contained in the federal and Maryland constitutions.

“Under these circumstances,” he continued, “having found a meritorious reason for the discharge of Mr. Dykes’ current assistant public defender, the court should have referred Mr. Dykes to the OPD explicitly for the assignment of a new assistant public defender or panel attorney or, if it believed that to be fruitless, acted on its own authority to offer to appoint counsel for him under its inherent authority.”

In a concurring opinion, Judge Shirley M. Watts urged the Maryland Judiciary’s Standing Committee on Rules of Practice and Procedure to amend Rule 4-215(e) “to clarify what a circuit court must do after determining whether or not there is a meritorious reason for discharge of counsel.”

Kleinbord said he agreed with Watts’ request.

The case is Alexander Dykes v. State of Maryland, No. 70, Sept. Term 2015.