Background: On September 16, 2011 the Brennan Center participated as a friend of the court in an important right to counsel case pending before Maryland’s highest court. The case, DeWolfe v. Richmond, will determine how early in a criminal case counsel must be provided to a low-income person facing criminal charges. It is one of the first cases in which a state supreme court will apply the U.S. Supreme Court’s 2008 decision in Rothgery v. Gillespie County, which held that the right to counsel attaches once a police officer files a criminal charge and the accused is brought before a judicial officer.
In DeWolfe, the Maryland Court of Appeals will apply the Rothgery holding to the specific procedure used in the Baltimore City criminal courts, where a person charged with a crime may be brought before an official called a Commissioner for an initial bail hearing. During this hearing, the accused is not provided with counsel, even though the prosecutor is present. As a result, the accused may unwittingly incriminate himself. And he may be unable to meaningfully advocate for the Commissioner to decide against incarceration. The Brennan Center, together with the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, the American Civil Liberties Union of Maryland, the Center for Constitutional Rights, and the National Legal Aid and Defender Association, filed an amicus brief urging that Maryland law and the state and federal constitutions require that counsel be provided to represent the accused person at the hearing.