As Clear as Mud: A Detailed Look at the Presidential Pardon

Maryland’s Court of Appeals (its highest court) ruled today that, every person brought before a bail commissioner is entitled to have a lawyer argue for her release before bail is set, regardless of the individual’s financial situation. The case is DeWolfe v. Richmond, No. 34. (Click here for the NACDL amicus brief).
DeWolfe was a civil case. The plaintiff filed suit in 2007 claiming that (under Maryland’s Public Defender Act) they were entitled to a public defender at their initial bail hearing because they faced pretrial detention in jail. The defendants in the suit included the Chief Judge of the District Court of Maryland and the Baltimore City Commissioners who hold the hearings and set bail. The plaintiffs claimed that the hearings are held at the Central Booking Jail and “public defenders are never present.” The court noted, because of security concerns and procedural issues, retained lawyers seldom are allowed to attend an initial bail hearing. The Baltimore public defender office, which claimed it had neither the staff nor the funding to provide counsel at the Central Booking hearings, was added as a defendant in 2008.”

While the case was still being litigated, the U.S. Supreme Court held in 2008, as a matter of federal constitutional law, that poor defendants have a Sixth Amendment right to counsel at initial bail hearings. But the state high court decided the case under Maryland law. The court said that the plain language of the Maryland Public Defender Act provides that “Representation shall be provided to an indigent individual in all stages” of a criminal proceeding, and the plaintiffs argued that “all means all.” The trial court and the high court agreed. To make clear that its holding applies to all persons arrested in the state, the court said, “Moreover, notwithstanding that the present case deals only with bail hearings before Baltimore City Commissioners, our holding applies with equal force to initial appearances before Commissioners throughout Maryland.”

Because of the Court’s reliance on the Public Defender Act, it is unclear whether the ruling will help criminal defendants in Michigan. In Michigan, criminal defendants rarely have counsel at the initial arraignment and are given very high bonds. In the two to three weeks it takes to get to a preliminary examination and a reevaluation of the bail decision, a defendant can lose employment, be evicted, be denied critical medication, and loses the ability to make essential plans to start the defense of their case.