On September 25, the Maryland Court of Appeals ruled that under the state's constitution criminal defendants appearing at their first bail hearings have the right to legal counsel.
Almost 20 months ago on January 4, 2012, the state's highest court unanimously ruled that state law gave indigent criminal defendants the right to a lawyer's representation at their first bail hearing. Concerned about the cost of implementing the decision, the Maryland General Assembly then passed a new law, providing indigent criminal defendants with free representation at the subsequent bail review hearing held 2-5 days after arrest.
The court's latest 4-3 decision finds the new law unconstitutional based upon Maryland's Declaration of Rights.
UM Carey Law Professor Doug Colbert and his clinic students initiated the law reform effort 15 years ago. Then, in 2006, they joined pro bono lawyers, Mitch Mirviss and Michael Schatzow of Venable, a Baltimore law firm, in filing the suit. Students continued to work on both cases.
"It's a remarkable decision," Colbert told The Baltimore Sun. "It's the most important right-to-counsel decision for poor people since Gideon. In its1963 Gideon v. Wainwright decision, the U.S. Supreme Court ruled that a "poor man" charged with a felony cannot be forced to face his accuser at trial without the assistance of a lawyer.
"This decision is a tremendous victory for low-income people accused of crime who may otherwise spend time in jail waiting for a trial simply because they can't afford counsel or bail," noted Phoebe Haddon, UM Carey Law Dean and Professor of Law. "It is part of the law school's long tradition of expanding access to justice for all, particularly the poor."
The decision provides access to an attorney for "all indigent persons arrested, detained at Central Booking, [and] brought before a Commissioner for initial bail hearings," the court said, in Baltimore City and at defendants' "initial appearances throughout the state of Maryland."
Currently, people arrested in Maryland for misdemeanor and felony offenses go before a Commissioner, a judicial officer who decides whether or not they can be released on their own recognizance, on bail, or not at all. An arrested poor person appears alone--in Baltimore City, the hearings take place inside the jail and are closed to the public. The hearing is neither recorded nor transcribed. If the Commissioner sets bail which can't be met, defendants are held in jail. Typically, a reviewing judge maintains the same bail and defendants will remain there for weeks and months until trial.
Professor Colbert and dozens of his students have worked on guaranteeing legal representation at the bail stage since 1997. They engaged in legislative and administrative law reform efforts and devoted seven years to the original law suit in this case as it wound its way through the courts.
The students who have worked on the case did so through Professor Colbert's Access to Justice clinic, one of more than 20 offered as part of the school's clinical law program, ranked fifth in the nation by U.S. News & World Report.