Gideon Alert: Maryland public defender independence increased

BY David Carroll on Tuesday, May 4, 2010 at 5:00 PM

On May 4, 2010, Maryland Governor Martin O’Malley signed into law Senate Bill 97 increasing independence for the state public defender agency.  The legislation expands the Public Defender Board from three members all appointed by the Governor to a thirteen-member board selected by diverse authorities.  No sitting judges, prosecutors, or law enforcement employees may serve on the public defender board.  Following prevailing national standards, SB 97 requires that the chief public defender be appointed for a term of six years and only be terminated for just cause.  The legislation was passed on a near unanimous, bipartisan basis (Senate: 45-0; House: 137-4).

Last year, the then-chief public defender was fired on a 2-1 vote after she refused to increase the caseload of staff public defenders and did not  follow the dictates of the board to disband the capital defense and juvenile protection divisions,  close a community defenders office, and fire the only African-American deputy.  Without taking a position on whether or not the firing was justified, national advocates focused on the failure of the Maryland board to meet national standards and perception that the firing was unduly political.

To prevent such potential undue interference, the first of the ABA Ten Principles of a Public Defense Delivery System calls for the establishment of an independent oversight board whose members are appointed by diverse authorities, so that no single official or political party has unchecked power over the indigent defense function.  To help jurisdictions in the establishment of independent public defender boards or commissions, NLADA has promulgated guidelines.  NLADA’s Guidelines for Legal Defense Services (Guideline 2.10) states: “A special Defender Commission should be established for every defender system, whether public or private.  The Commission should consist of from nine to thirteen members, depending upon the size of the community, the number of identifiable factions or components of the client population, and judgments as to which non-client groups should be represented.”

After a hearing in October 2009 at which members of NLADA, the National Juvenile Defender Center, and the Brennan Center testified, two Senate Bills emerged.  A bill by Sen. Mooney (R) proposed expanding the board to 11 members and sharing appointing authority among all three branches of government, the state bar, and accredited law school deans.  A bill by Senator Muse (D) expanded the board and followed national standards on duties and powers of the Board. The bills were merged in the early part of 2010.