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Sept-Oct 2013 , Page 11 

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NACDL News: Another State Recognizes Counsel Is Required at First Appearance Where Liberty Is at Stake

By Ivan J. Dominguez and Isaac Kramer

Read more NACDL News columns.

On Sept. 25, 2013, the Maryland Court of Appeals, the state’s highest court, ruled in a 4-3 decision that “under Article 24 of the Maryland Declaration of Rights, an indigent defendant is entitled to state-furnished counsel at an initial hearing before a district court commissioner.” This means that every person brought before a bail commissioner throughout the state of Maryland is entitled to have a lawyer argue for his or her release before bail is set, regardless of the individual’s ability to pay for counsel. At least a dozen states and the District of Columbia have now explicitly recognized this right. The case is DeWolfe v. Richmond, No. 34. NACDL filed a friend of the court brief on behalf of the plaintiffs.

NACDL President Jerry J. Cox praised the decision, stating, “Fifty years after the Supreme Court’s landmark decision in Gideon v. Wainwright, Maryland has recognized another obvious truth — that defendants require counsel to deal with pretrial issues such as bail just as much as they need counsel to deal with the trial itself.”

NACDL strongly advocates for the right to counsel throughout the nation at initial appearance before a judicial officer at which liberty is at stake or at which a plea of guilty to any criminal charge may be entered. See the “Board Resolution Urging Recognition of Right to Counsel at Initial Appearance,” which is available on NACDL’s website. The majority in the DeWolfe decision recognized a number of the reasons why the vindication of this right is so critical:

[T]he failure of a commissioner to consider all the facts relevant to a bail determination can have devastating effects on the arrested individuals. Not only do the arrested individuals face health and safety risks posed by prison stays, but the arrested individuals may be functionally illiterate and unable to read materials related to the charges. Additionally, they may be employed in low wage jobs which could be easily lost because of incarceration. Moreover, studies show that the bail amounts are often improperly affected by race.

The American Civil Liberties Union, the ACLU of Maryland, the Brennan Center for Justice at New York University Law School, the Center for Constitutional Rights, and the National Legal Aid and Defender Association joined NACDL on the amici curiae brief. The brief was written by Christina M. Gattuso, of the Washington, D.C., office of Kilpatrick Townsend and Stockton LLP, and Gia L. Cincone of Kilpatrick’s San Francisco office. The brief and the decision in DeWolfe are available on NACDL’s website.

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