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Md. high court weighs juvenile lifers’ right to counsel at parole hearing

Convicts sentenced to life in prison for crimes committed as juveniles have a constitutional right to counsel at parole hearings to ensure they have a “meaningful opportunity” to make their case for early release, a public defender argued to Maryland’s top court Thursday.

But a lawyer for the state countered that the right to counsel applies only to court proceedings in which a defendant faces the threat of incarceration and not merely of continued imprisonment. In addition, Maryland’s parole system has sufficient procedural safeguards to ensure juvenile lifers can adequately present their arguments for release based on a showing of rehabilitation and maturation, Assistant Maryland Attorney General Jer Welter told the Court of Appeals.

The attorneys parried as the high court considers whether to broaden the Maryland Constitution’s right to counsel to parole proceedings for juvenile lifers. The court last expanded the Article 24 right in 2013 to include initial counsel at initial bail hearings before district court commissioners.

Appearing before the high court via video conference, Assistant Maryland Public Defender Jeffrey M. Ross said the need for counsel before the Parole Commission is “exponentially greater” than at a bail hearing because the juvenile lifer is “facing the prospect of death in prison.”

Ross said a zealous legal advocate is “absolutely essential” to provide juvenile lifers with the “meaningful opportunity” for release the high court has ruled they are entitled to based on a showing of their maturation and rehabilitation behind bars. Only an attorney can navigate the “complex” laws and regulations governing parole and assemble experts to testify that his or her client has matured and been rehabilitated, Ross said.

“It (the right to counsel) is the best protection against the worst possible outcome,” Ross said, referring to the denial of parole to otherwise deserving convicts who could not make their own case.

“These are damaged individuals,” Ross told the high court. “Someone has to be their advocate.”

Ross was pressing the case of Michael Farmer, who pleaded guilty in Baltimore City Circuit Court in 2003 to two counts of first-degree murder for slayings he committed when he was 17 years old. Farmer, who was sentenced to two consecutive life terms, is seeking a right to counsel for when he comes up for parole in about eight years, a request the intermediate Court of Special Appeals rejected in an unreported opinion in 2019.

Ross’s right to counsel argument drew skepticism from Court of Appeals Judge Steven B. Gould, who said the lawyer had not presented any specific instances in which an otherwise deserving juvenile lifer had been denied parole. Gould added that the Parole Commission’s regulations require that it conduct investigations on each candidate for release.

“We have nothing other than your say so that it doesn’t work,” Gould said. “We don’t have any evidence that it doesn’t work.”

Ross responded that many of the Parole Commission’s regulations predate U.S. Supreme Court decisions in the early 2010s regarding the right of juvenile lifers be given a meaningful opportunity for release.

“The parole system is still catching up,” Ross said.

Welter, the assistant attorney general, said neither the U.S. Supreme Court nor the Maryland Court of Appeals has found a constitutional right to counsel in parole or similar proceedings in which individual’s asserted liberty interest was “a hope of release” rather than the avoidance of incarceration.

In the absence of a constitutional right, the decision of whether juvenile lifers should have a right to counsel before the Parole Commission belongs to the Maryland General Assembly in consultation with the governor, Welter said.

“That is a policy decision that should be made by the policymaking branches,” he added.

The Court of Appeals is expected to render its decision by Aug. 31 in the case, Michael Farmer v. State of Maryland, No. 31, September Term 2021.