Appointed Attorneys Program has provided counsel to thousands

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In 2013, when Maryland’s highest court recognized people’s constitutional right to have an attorney present at their initial court appearance, officials had to make that right a reality – and find a way to pay for it. They were frantic.

Attorney General Brian E. Frosh, chairman of the Senate Judicial Proceedings Committee in 2014, said the decision, which he supported, was a “sea change” that was “very inconvenient and expensive” for the legislature.

In DeWolfe v. Richmond, the Court of Appeals held the Constitution’s due process provision requires the state to provide counsel at initial appearances, where district court commissioners decide whether to release an individual, assign bail or hold the person pending trial.

“It was very controversial,” Frosh said of the ruling. “The General Assembly was trying to figure out how we were going to pay for this and how this was going to work.”

Maryland Public Defender Paul B. DeWolfe proposed his office provide the attorneys to indigent defendants, estimating the plan’s cost at $30 million. The legislature rejected the proposal as too expensive and instead allocated $10 million from the Maryland Judiciary’s budget to fund the Appointed Attorneys Program, created by the Court of Appeals Standing Committee on Rules of Practice and Procedure in late 2013.

The program launched on July 1, 2014, the effective date for Richmond set by the court. The program employs private attorneys who work eight-hour shifts around the clock for $50 per hour.

Legislators, jails and advocates had concerns: about the cost, about finding space for attorneys in courthouses and about delays that could imperil the right to “prompt presentment” of a defendant before a judicial officer. District court commissioners themselves were worried about what adding a lawyer to their hearings would mean.

“There was this huge fear. We had people quit,” said Timothy Haven, director of the district court commissioners. Haven, a sitting commissioner at the time, said he saw the program implemented “on the front lines.”

The General Assembly in 2015 even considered amending the constitution to undo the Court of Appeals’ decision after the Appointed Attorneys Program had been in place for less than a year. The legislation failed to pass.

Despite the concerns, any bumps in the program were smoothed over within a few months and no serious issues have arisen since, said District Court Chief Judge John P. Morrissey, who had been on the job for just a month when Richmond took effect.

“It’s been institutionalized by us right now as a program that we just do day in and day out,” Morrissey said.

Under the rules, the commissioner informs defendants of their right to counsel and asks questions about their finances to determine if they are eligible for a state-sponsored attorney. If they are, an attorney is appointed. If they are not, they must be given reasonable time to obtain counsel.

Douglas Colbert, a professor at the University of Maryland Francis King Carey School of Law who worked on the Richmond case, said the rules committee made a big difference in setting out how the decision would be implemented.

“The rules committee and the Court of Appeals acted in the highest tradition of our profession,” he said. “They did their best to balance the scales of justice for the poor and the low-income working person who are the most likely to be arrested, most likely to wind up before a commissioner and then before a judge.”

Mitchell Y. Mirviss, one of the attorneys who represented the plaintiffs in Richmond, said he was not surprised by the initial fears.

“Change is always unpleasant, or the prospect of change is always unpleasant, (but) we honestly did not expect jail operations or law enforcement efforts would be affected,” said Mirviss, partner at Venable LLP in Baltimore.

Michael Schatzow, another attorney for the plaintiffs, said he was surprised by how smoothly the program worked.

“I think credit should go to Judge Morrissey,” said Schatzow, now chief deputy state’s attorney in Baltimore. “Once the court and the legislature determined how this was going to be done, I think he did a really good job of implementing the legislation and the rulings.”

Waiver rates

In five years, the Appointed Attorneys Program has provided counsel at more than 220,000 initial appearances, according to data provided by the judiciary. However, that number represents only about one-third of the initial appearances conducted in that time. Defendants waive their right to counsel, either private or appointed, on average, 67% of the time.

After years of litigation to secure the right to state-appointed counsel, the two-thirds waiver rate has surprised many.

DeWolfe said defendants waive their right to counsel because they may be required to wait hours or even overnight for an attorney to be appointed.

“DeWolfe v. Richmond was supposed to be a watershed decision in the right to counsel at initial appearance,” DeWolfe said in an emailed statement. “Unfortunately, the waiver rates throughout the state show that is still not the case.”

Though he would not say whether he still believes the Maryland Office of the Public Defender should be providing attorneys at the hearings, DeWolfe said there is a “wide variety in the quality of representation” by appointed attorneys.

“(The) impact of the lawyer at this critical proceeding is muted by a lack of training or standards for appointed attorneys, who may not have any criminal defense experience,” he said.

No study has been done to ascertain the reasons why people waive counsel, but Morrissey said he has heard defendants express their belief that they don’t need the help. He added that in some small jurisdictions — where waiver rates are 90% or higher — people might waive their right to counsel because they know the parties and are familiar with the system.

In at least one case he observed early in the program, Morrissey said, a defendant in Prince George’s County waived his right to counsel even though he was told the  attorney was standing by and was available immediately. When asked why, Morrissey said, the man told him he did not think he needed an attorney. He was released on his own recognizance.

Frosh, who had been unaware of the waiver rate, said he was surprised to learn how high it was.

Referring to Baltimore County — where release rates at initial appearances have remained at or below 50% despite statewide bail reform and where waiver rates are above 80% — Frosh said, “Those are not good benchmarks.”

Mirviss said that the rate of waivers concerns him and that he would like to see the reasons studied to determine if there is a systemic problem.

“What we don’t know and we’re not able to investigate is the extent to which the waivers are the result of informed judgment of how much extra time it would take and uninformed judgment based on subtle pressure or encouragement by officials within the jail,” he said.

Colbert said it’s concerning that people are waiving their right to counsel two-thirds of the time.

“I would want to know more about what’s being said to these folks,” he said. “Why are they giving up a constitutional right?”

Under the rules, if an attorney cannot appear promptly, the defendant is informed that the hearing may need to be continued and that they will be held.

DeWolfe said the prospect of waiting for an attorney or proceeding immediately without one may be a significant factor in the decision to waive a right to counsel, adding that “counsel needs to be readily available at the moment of detention, so that defendants are not forced to choose between having an attorney and having a timely hearing.”

Schatzow, too, suggested the delays often inherent in choosing to be represented by counsel could be driving up the waiver rate.

“If you tell people you have a right to counsel but you have to remain locked up for I don’t know how long before we can get you counsel, it’s not surprising that people turn it down,” he said.

Schatzow agreed that the reasons for waiving merit study.

“It would be interesting to know why they’re turning down representation,” he said.

For his part, Frosh said he’s interested in finding out where “kinks” in the system keep people in jail.

“We have a bully pulpit and we use it, especially on bail reform,” he said.

Legacy

Schatzow said that despite the high waiver rate, the legacy of Richmond is that people who did not previously have the right to counsel now have the option.

“Because I believe that counsel is a requirement in order for a defendant to successfully navigate the criminal justice system, I think it’s a very good thing,” he said. “I think it should ultimately result in better decisions by commissioners about who is released and who isn’t released.”

Schatzow and Mirviss also said the litigation highlighted issues that would later drive the bail reform movement, which culminated in 2017 with a new rule on pretrial release.

“Richmond was directly responsible for casting a focus and a narrow spotlight on issues of pretrial release, and while we were focused on right to counsel, other things came up in discussions surrounding what the legislative fix would be,” Schatzow said.

Frosh confirmed that the Richmond decision is what brought the bail issue to his attention and said that he carried his concerns with him into his role as attorney general. In 2016, he wrote an opinion expressing his belief that the system of pretrial release in Maryland – which relied heavily on cash bail – was unconstitutional.

“For me, it put on my radar this hugely serious problem which was we were keeping thousands of people in jail just because they were poor,” he said. “Bail was set, it was set in amounts the commissioners and judges thought (people) could meet, and there were some people who were just too poor to meet it.”

Since 2016, when Frosh wrote his opinion and Morrissey followed up by issuing an advice letter to judges and district court commissioners, the use of cash bail has plummeted and release rates have risen.

Mirviss said the Richmond case “catalyzed” the recent reforms.

“It educated the legislature, the judiciary and the broader public to how bail assessments were a significant problem (and) how they discriminated against poor individuals, people of color and how they caused serious harm in communities,” he said.