Reality and the Right to Counsel in Maryland

It has been nearly 50 years since the Supreme Court acknowledged in Gideon v. Wainwright that “lawyers in criminal courts are necessities, not luxuries.”  The right to court-appointed counsel is now common knowledge, but the devil is in the details.  When does this right attach?  For some criminal defendants, it may be too late.

Recently, the Maryland Court of Appeals heard arguments in DeWolfe v. Richmond, in which the Brennan Center participated as a friend of the court.  The case involves people who were arrested in Baltimore and detained after a bail hearing. Their requests for an attorney at this bail hearing were ignored.  The circuit court ruled that they were entitled to an appointed attorney during the bail hearing because it constituted a “critical stage” in the proceeding.

The Maryland Attorney General is arguing that the initial bail hearing is not a critical stage for three reasons: the proceeding is not yet a “case” under the Maryland Public Defender Act, the hearing is not adversarial, and the lack of counsel is inconsequential because people facing criminal charges are only without counsel for 24 hours. This argument is flawed in each of its points, but more importantly, it demonstrates a disturbing disconnection from the realities faced by people going through the criminal justice system. It is only by elevating process over people that the Attorney General’s arguments are even plausible. A client-centered analysis of the situation reveals how correct the circuit court’s decision was, and why the Court of Appeals must affirm.

People arrested in Baltimore City are taken to Central Booking where charges are prepared and they wait to see a Bail Commissioner.  The average wait time until a person is formally charged is 18 hours, during which the person is held in a crowded cell.  It is difficult to tell a person who’s locked in a cage that they don’t yet have a “case.” 

Viewed from the perspective of the accused, the proceeding is decidedly adversarial.  The prosecutor sets out the probable cause for arrest and may request bail. The person then has the opportunity to argue against the prosecutor.  Confronted with the authority of the Bail Commissioner and the charges arrayed against them, the accused are being forced to defend themselves against a powerful, professional adversary. Keep in mind that the average person accused of a crime does not have a high school diploma.  These are exactly the kinds of circumstances where the advice of a lawyer is “a necessity.”

The Attorney General’s argument that bail hearings are inconsequential is laughably unrealistic. Twenty-four hours in jail is consequential for anyone who experiences it, as Judge Adkins pointed out during oral arguments.  And people who can’t pay the amount set by the Commissioner must wait in jail until the next court session, which could be up to 30 days later. 

Further, defense counsel is necessary at bail hearings to protect the accused and prevent prosecutorial overreaching. Without the advice of a lawyer, a person may reveal harmful or irrelevant information that could put their job, housing, or immigration status in jeopardy in ways that the right to counsel was designed to prevent. Since the Bail Commissioners are not required to have any legal training, the only lawyer in the room is the prosecutor. At this critical stage, the adversarial system is one adversary short.

The Sixth Amendment was not created to make the criminal justice system easier for the state to administer — it was designed to protect people.  In holding that bail hearings are a “critical stage,” the circuit court correctly prioritized people over process. The Court of Appeals should affirm the circuit court’s decision and acknowledge that people have the right to counsel at the initial bail hearing.