Gideon Alert: MD Circuit Court finds right to counsel at bail hearings

BY David Carroll on Thursday, October 7, 2010 at 12:15 PM

On September 30, 2010, a Maryland Circuit Court determined that bail hearings are a critical stage of a criminal proceeding where an indigent person is entitled to be represented by an attorney.  The case, Richmond v. District Court of Maryland, involves eleven named petitioners who requested counsel at bail hearings and were denied.  They sought relief on behalf of themselves and all indigent persons denied counsel at such hearings.

In Maryland, an arrested person is brought before a Commissioner to have bail set.  As is the case in a number of states, Commissioners do not have to be lawyers and do not have to meet any particular educational qualifications such as having “a college degree, high school diploma or criminal justice background.”  At the bail hearing, the Commissioner tells the defendant the charges for which he has been arrested, informs him of the possible penalties, advises him of his constitutional rights, sets the amount of bond necessary for the defendant to be released, and determines whether there is probable cause for the arrest.  During the hearing, the Commissioner asks the defendant questions, which he is expected to answer.  

The Maryland Court observed that defendants “run the risk of incrimination by possibly making an inculpatory statement” that the defendant “believes would assist in the chance of obtaining bail.” The Court also found that, at the time of the bail hearing, the state has committed to prosecute the defendant and the defendant's liberty is restricted.

Though the decision is rooted in both state law and federal constitutional jurisprudence, the Maryland circuit court relied heavily on their reading of Rothgery v. Gillespie County. The Maryland court reasoned that in Rothgery "[t]he Supreme Court held that a criminal defendant's initial appearance before a magistrate, where he learns the charge against him and his liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel."  Because the Maryland bail hearings before a Commissioner are similar to the hearing before the magistrate in Rothgery, the Maryland court said "[t]here can be no doubt that the appearance before a Commissioner, where each [defendant] was informed of the accusations that were lodged and where each had restrictions placed on his or her liberty, constitutes a critical stage for purposes of the right to counsel."

Maryland’s public defender system is in the midst of a caseload crisis.  On September 16, 2010, the U.S. Department of Justice, Bureau of Justice Statistics (BJS) released results from its 2007 public defender survey.   Of the 22 state public defender systems surveyed, Maryland public defenders collectively handled more cases than any of the other surveyed states (199,750 total cases).  With 508 attorneys, the DOJ report determined that the Maryland system would need an additional 184 attorneys to meet the nationally-recognized workload standards.  As noted in our September 17, 2010 Gideon Alert, the situation is actually much worse.  DOJ acknowledges that its methodology undercounts workload demands because the formula only counts new assignments per attorney per year, while national standards are based on every case worked in a given year (i.e., pending cases + new assignments).  And, it should be noted that the DOJ report details information from 2007, a time at which most of the nation had yet to experience the recent financial difficulties.

Because the Maryland State public defenders do not currently represent indigent people during the hearings where bail is set, the new ruling would significantly exacerbate the caseload crisis if implemented immediately.  The defendants in the Maryland case urged concerns about the fiscal impact and raised arguments about separation of powers issues. The circuit court stayed its decision to allow time for appellate review.