Maryland Indigent Defense

The State of Indigent Defense in Maryland

The Maryland Court of Appeals, the state’s highest court, made clear on January 4, 2012 that as a matter of state law, every person brought before a bail commissioner is entitled to have a lawyer argue for her release before bail is set, regardless of the individual’s financial situation. The case is DeWolfe v. Richmond, No. 34. The National Association of Criminal Defense Lawyers (NACDL) filed a friend of the court brief on behalf of the plaintiffs. 

Plaintiffs filed a civil lawsuit in the Baltimore City Circuit Court in 2007 claiming that, under Maryland’s Public Defender Act, they were entitled to a public defender at their initial bail hearing because they faced pretrial detention in jail. The defendants in the suit included the Chief Judge of the District Court of Maryland and the Baltimore City Commissioners who hold the hearings and set bail. The plaintiffs claimed that the hearings are held at the Central Booking Jail and “public defenders are never present.” (In fact, the court noted, because of security concerns and procedural issues, retained lawyers seldom are allowed to attend an initial bail hearing.) The Baltimore public defender office, which claimed it had neither the staff nor the funding to provide counsel at the Central Booking hearings, was added as a defendant in 2008.

While the case was still being litigated, the U.S. Supreme Court held in 2008, as a matter of federal constitutional law, that poor defendants have a Sixth Amendment right to counsel at initial bail hearings. But the state high court decided the case under Maryland law. The court said that the plain language of the Maryland Public Defender Act provides that “Representation shall be provided to an indigent individual in all stages” of a criminal proceeding, and the plaintiffs argued that “all means all.” The trial court and the high court agreed.

To make clear that its holding applies to all persons arrested in the state, the court said, “Moreover, notwithstanding that the present case deals only with bail hearings before Baltimore City Commissioners, our holding applies with equal force to initial appearances before Commissioners throughout Maryland.”

NACDL President Lisa Monet Wayne praised the court and counsel for the decision’s clarity. “Most persons placed under arrest recognize that when they are faced with the possibilities of going free on bond or staying in jail until the next court date, they need a lawyer. But even when they were not afraid or too confused to ask for a lawyer, they did not get one. This decision means persons facing pretrial detention in Maryland will not even have to ask for a lawyer. The public defender will have to be there.”

Wayne added, “We are mindful of the additional pressure this will place on an already overburdened Public Defender, and therefore urge the legislature to provide the essential funding.” 

NACDL was joined by 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. 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. A copy of the brief may be downloaded from NACDL’s website: Download brief.

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