A year ago Maryland's highest court unanimously ruled that all people arrested and charged in the state must be represented by legal counsel at the initial bail hearing. That's where a commissioner, not a judge, decides an accused person's freedom or incarceration before trial. The Court of Appeals insisted that the statutory rule be immediately enforced.
But the General Assembly, concerned about the multi-million dollar cost of extending a defendant's right to counsel, quickly passed a new law striking down much of what the Court of Appeals had decided. It instead affirmed that defense attorneys need only represent defendants at bail review hearings before a judge, and not at initial hearings before a commissioner.
Professor Doug Colbert of the University of Maryland Carey School of Law wasn't surprised by the legislative backlash. Colbert has spent much of his career arguing that a lawyer is a necessity when people's liberty is at risk, and improperly taken from them at initial hearings. Too often, he says, low-income people, disproportionately of color and charged with non-violent crimes, are held needlessly on unaffordable bail because they had no lawyer to advocate for them. Colbert also notes that having lawyers at the initial bail hearing would result in enormous savings for detention centers because fewer people would remain locked up.
Six years ago, Colbert and his clinic students helped pro bono partners from the Venable law firm put together the DeWolfe v. Richmond lawsuit seeking the guarantee of legal representation at initial bail hearings. This month, the Venable lawyers and Colbert again took the case to the Court of Appeals to test whether the new law complies with an accused person's Sixth Amendment (right to counsel at trial) and Fourteenth Amendment (right to due process) protections.
Colbert says the issue has particular meaning as this is the 50th anniversary year of the Supreme Court's landmark Gideon v. Wainwright ruling which - along with subsequent cases - guaranteed everyone charged with a crime access to a lawyer. He insists "that poor people's constitutional right to counsel entitles them to representation when they first appear at a bail hearing, and a lawyerýs advocacy is essential for protecting liberty pending trial. In Maryland, not a single poor or low-income defendant, most charged with non-violent crimes, gains the benefit of an assigned lawyer."
Maryland's Office of the Attorney General maintains that citizens have no right to counsel at initial bail hearings, calling them neither "critical" nor "adversarial." At the Court of Appeals, Julia Doyle Bernhardt of the attorney general's office argued instead that Maryland is a leader among states requiring that counsel be provided at bail review hearings.
The Court did not indicate when it will issue an opinion.