Maryland Court of Appeals Holds Defendants Entitled to Lawyers at Bail Hearings

The Court of Appeals yesterday decided the case of DeWolfe v. Richmond, No. 34, September Term 2011, holding that the Maryland Public Defender Act entitles anyone who is arrested to counsel at the bail review component of hearings before District Court Commissioners if they cannot afford their own lawyer.

Defendants who are arrested in Maryland are taken before a District Court Commissioner for an initial appearance. At these hearings, commissioners

inform the defendant of the charge and allowable penalties; provide the defendant a copy of the statement of charges, if the defendant does not have one and one is available; advise the defendant of the right to counsel; advise the defendant, when it is relevant, of the right to a preliminary hearing; and comply with the pretrial release provisions of Rule 4-216.

The Court of Appeals held that when a commissioner decides whether to release a defendant, set a bail, or keep him incarcerated that part of the hearing is an important stage of a criminal case and that Maryland law requires the Office of the Public Defender to provide lawyers at these hearings:

No bail determination can be made concerning an indigent person without the presence of counsel at any initial appearance in Maryland, unless such representation has been waived.

The court stated that this holding applied to bail reviews conducted by district court judges, as well.

The Court based its decision on State law; it did not reach the question of whether the Constitution or the Maryland Declaration of Rights require lawyers at bail reviews. Several organizations filed amicus briefs urging such an interpretation, including the American Bar Association, the National Association of Criminal Defense Attorneys, and the Brennan Center for Justice.

The Public Defender's Office had argued that it lack funds to provide lawyers at these hearings. The unavailability of lawyers to represent defendants at the time of their arrest, including on evenings and weekends, will undoubtedly cause delays as both police agencies and the District Court grapple with how to handle this new decision.

Although the Court of Appeals refused to stay the decision as requested by the Public Defender's Office, the decision was released immediately before the General Assembly is about to convene its 2012 session, where the funding issue could be addressed. Because the decision was based on statutory, the legislature could also essentially reverse this decision by amending the public defender act.