DeWolfe v. Richmond Brief of Amicus Curiae

    IN THE
COURT OF APPEALS OF MARYLAND

September Term 2011 
No. 34

PAUL B. DEWOLFE, JR., et al.,
Plaintiffs-Appellants,

v.

QUINTON RICHMOND, et al., 
Defendants-Appellees.

ON APPEAL FROM THE CIRCUIT COURT FOR BALTIMORE CITY 
(The Honorable Alfred Nance, Judge)

Pursuant to a Writ of Certiorari to the Court of Special Appeals

BRIEF OF AMICUS CURIAE
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

IN SUPPORT OF APPELLEES

NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC.

John Payton 
Debo P. Adegbile 
Christina Swams 
Johanna B. Steinberg 
99 Hudson Street, Suite 1600 
New York, NY 10013 
(212) 965-2200

Joshua I. Civin *
1444 I Street, NW, 10th floor 
Washington, DC 20005 
(202)682-1300

HOGAN LOVELLS US LLP

Steven F. Barley *
Andrea W. Trento *
Lindsay S. Goldberg *
100 International Drive, Suite 2000 
Baltimore, MD 21202 
(410) 659-2700

Attorneys for Amicus Curiae

* Admitted in Maryland

September 16, 2011



Page

TABLE OF AUTHORITIES......................................................................................... iii

INTEREST OF AMICUS CURIAE............................................................................... xii

INTRODUCTION AND SUMMARY OF ARGUMENT.............................................. 1

STATEMENT OF THE CASE, QUESTIONS PRESENTED, AND
STATEMENT OF FACTS...................................................................................4

ARGUMENT...................................................................................................................8

I. THE PUBLIC DEFENDER ACT GUARANTEES THE RIGHT TO
COUNSEL AT BAIL COMMISSIONER HEARINGS....................................... 8

A. The Circuit Court’s Ruling Is Consistent With This Court’s
Well-Settled Interpretation of the Public Defender A ct............................ 9

B. Legislative History, To the Extent It Is Relevant,
Does Not Compel Reversal...................................................................... 11

II. BAIL COMMISSIONER HEARINGS IN BALTIMORE CITY ARE
A “CRITICAL STAGE” OF CRIMINAL PROCEEDINGS AND 
THUS REQUIRE PROVISION OF COUNSEL UNDER THE U.S. 
CONSTITUTION AND MARYLAND DECLARATION OF RIGHTS..........13

A. Bail Commissioner Hearings in Baltimore City Are a Critical 
Stage For Which Counsel Must Be Provided Under the Sixth 
Amendment..............................................................................................14

1. Baltimore City Bail Commissioner Hearings Meet the 
Supreme Court’s Test for Determining Whether a Stage 
in a Criminal Proceeding is “Critical” for Sixth
Amendment Purposes................................................................... 15

2. Critical Record Evidence Supports the Conclusion That a 
Baltimore City Bail Commissioner Hearing Is a Critical Stage ....20

TABLE OF CONTENTS



B. Rothgery and the Compelling Record Evidence Undermine the 
Continuing Validity of this Court’s Ruling in Fenner v. State... 24

III. AFRICAN AMERICANS ARE DISPROPORTIONATELY AFFECTED 
BY MARYLAND’S FAILURE TO GUARANTEE COUNSEL AT BAIL
COMMISSIONER HEARINGS.........................................................................26

IV. A DECLARATION OF THE RIGHT TO COUNSEL AT BAIL 
COMMISSIONER HEARINGS IS NOT CONTINGENT ON THE 
COURT’S FASHIONING OF A REMEDY TO FULLY IMPLEMENT 
THAT RIGHT.................................................................................................... 34

CONCLUSION............................................................................................................. 39

TEXT OF PERTINENT PROVISIONS
NOT ALREADY PROVIDED TO THE COURT............................................A1

n



TABLE OF AUTHORITIES

Page(s)
Cases

Adamson v. Correctional Medical Services, Inc.,
359 Md. 238 (2000)................................................................................................... 12

Baltimore Sun v. Mayor & City Council o f Baltimore,
359 Md. 653 (2000)................................................................................................... 13

Bounds v. Smith,
430 U.S. 817 (1997)................................................................................................... 37

Brewer v. Williams,
430 U.S. 387 (1977)............................................................................................... 1, 16

Brown v. Board o f Education,
347 U.S. 483 (1954).............................................................................................  34,35

Brown v. Plata,
131 S.Ct. 1910(2011)................................................................................................ 36

Coleman v. Alabama,
399 U.S. 1 (1970)................................................................................................ passim

County o f Riverside v. McLaughlin,
500 U.S. 44(1991)......................................................................................................23

Degren v. State,
352 Md. 400(1999)................................................................................................... 12

Duncan v. State,
795 N.W. 820 (Mich. 2011)........................................................................................xii

Estelle v. Smith,
451 U.S. 454 (1981).............................................................................................  16, 20

Fenner v. State,
381 Md. 1 (2004).....................................................................................  19, 24, 25, 26

Gerstein v. Pugh,
420 U.S. 103 (1975).............................................................................................  19, 20

ill



Gideon v. Wainwright,
372 U.S. 335 (1963).............................................................................................  9, 14

Guttman v. Wells Fargo Bank,
— Md. —, 2011 WL 3568860 (Aug. 16, 2011)........................................................ 12

Hills v. Gautreaux,
425 U.S. 284 (1976)...................................................................................................  35

Hurrell-Harring v. State,
930 N.E.2d 217 (N.Y. 2010)....................................................................................... 37

In re Gloria H.,
410 Md. 562 (2009)...................................................................................................  12

Kirby v. Illinois,
406 U.S. 682 (1972).................................................................................................... 20

Lavallee v. Justices in Hampden Superior Court,
812 N.E.2d 895 (Mass. 2004)....................................................................................  18

Maine v. Moulton,
474 U.S. 159 (1985)...................................................................................................  20

Maryland Conference ofNAACP Branches v. Maryland Department of 
State Police,
72 F. Supp. 2d 560 (D. Md. 1999)............................................................................. 29

McCarter v. State,
363 Md. 705 (2001).............................................................................................passim

Michigan v. Harvey,
494 U.S. 344 (1990)...................................................................................................  16

Milliken v. Bradley,
433 U.S. 267 (1977)...................................................................................................  35

MV A v. Shepard,
399 Md. 241 (2007)...................................................................................................... 9

Richmond v. District Court o f Maryland,
412 Md. 672 (2010)....................................................................................................xii

IV



Robinson v. State,
404 Md. 208 (2008)................................................................................................... 13

Rothgery v. Gillespie County, Texas,
554 U.S. 191 (2008).............................................................................................passim

Ruiz v. Estelle,
553 F. Supp. 567 (S.D. Tex. 1982)....................................................................... 37-38

Schmidt v. Prince George’s Hospital,
366 Md. 535 (2001)...................................................................................................  10

Schmidt v. State,
60 Md. App. 86 (1984).............................................................................................. 19

State v. Campbell,
385 Md. 616 (2005)...................................................................................................  13

State v Flansburg,
345 Md. 694 (1997)...........................................................................................  1,9, 10

State v. Furgal,
13 A.3d272 (N.H. 2010)............................................................................................ 37

Swann v. Charlotte-Mecklenburg Board o f Education,
402 U.S. 1 (1971).................................................................................................xii, 35

Thompson v. U.S. Department o f Housing & Urban Development,
348 F. Supp. 2d 398 (D. Md. 2005)...........................................................................  33

United States v. Ash,
413 U.S. 300 (1973).......................................................................................  15, 16, 20

United States v. Wade,
388 U.S. 218 (1967)......................................................................................  14, 15, 16

Utt v. State,
293 Md. 271 (1982)................................................................................................... 11

Watson v. Memphis,
373 U.S. 526 (1963).................................................................................................  37

Webster v. State,
299 Md. 581 (1984)............................................................................................. 10, 13

v



White v. Maryland,
373 U.S. 59 (1963)..................................................................................................... 16

Wolfe v. Anne Arundel County,
374 Md. 20 (2003)..................................................................................................... 11

Constitutional Provisions

U.S. Const, amend. VI...............................................................................................passim

U.S. Const, amend. XIV.....................................................................................................3

Md. Const, art. 4, § 41G....................................................................................................5

Md. Decl. of Rts. art. 21...........................................................................................passim

Md. Decl. of Rts. art. 24................................................................................................... 3

Statutes

18U.S.C. § 3626..............................................................................................................36

18 U.S.C. § 3626(a)..........................................................................................................36

Md. Code, Corr. Servs. § 5-404(b)(2)...............................................................................5

Md. Code, Cts. & Jud. Proc. § 2-607(b)(l).......................................................................5

Md. Code, Crim. Proc. § 5-202.......................................................................................... 5

Md. Code, Crim. Proc. § 10-103.1................................................................................... 23

Md. Code, Crim. Proc. § 16-201...................................................................................R 9

Md. Code, Crim. Proc. § 16-201(1)..........................................................................12, 13

Md. Code, Crim. Proc. § 16-201(2)..........................................................................12, 13

Md. Code, Crim. Proc. § 16-204(b)(2).................................................................... 1, 8, 10

Public Defender Act of 1970, currently codified at
Md. Code, Crim. Proc. § 16-201 et seq...............................................................passim

vi



Stevens H. Clarke & Susan T. Kurtz, The Importance o f Interim Decisions to
Felony Trial Court Dispositions, 74 J. of Crim. L. & Criminology 476 (1983)........ 31

Todd R. Clear et al., Incarceration and the Community: The Problem o f Removing
and Returning Offenders, 47 Crime & Delinq. 335 (2001).......................................  32

Douglas L. Colbert, Prosecution Without Representation,
59 Buff. L. Rev. 333 (2011)................................................................................  36, 37

Douglas L. Colbert et al., Do Attorneys Really Matter? The Empirical and Legal 
Case for the Right o f Counsel at Bail,
23 Cardozo L. Rev. 1719 (2002).....................................................................  8, 21, 22

Stephen Demuth, Racial and Ethnic Differences in Pretrial Release Decisions and 
Outcomes: A Comparison o f Hispanic, Black, and White Felony Arrestees,
41 Criminology 873 (2003)................................................................................. 27, 28

Stephen Demuth & Darrell Steffensmeier, The Impact o f Gender and Race- 
Ethnicity in the Pretrial Release Process,
51 Soc. Probs. 222 (2004)....................................................................................  27, 30

James Drew, A Chance for a Clean Slate: Automatic Expungement Law 
Has Helped Thousands Clear Arrest Records,
Balt. Sun, July 7, 2008, at 1A....................................................................................23

Jennifer L. Eberhardt et al., Looking Deathworthy: Perceived Stereotypicality o f 
Black Defendants Predicts Capital-Sentencing Outcomes,
17 Psychol. Sci. 383 (2006).......................................................................................  30

Jennifer L. Eberhardt et al., Seeing Black: Race, Crime, and Visual Processing,
87 J. of Personality & Soc. Psychol. 876 (2006)......................................................  30

Charles E. Frazier & Donna M. Bishop, The Pretrial Detention o f Juveniles and 
Its Impact on Case Dispositions,
76 J. of Crim. L. & Criminology 1132 (1985)..........................................................  31

Lauren E. Glaze & Laura M. Maruschak, United States Department of Justice,
Bureau of Justice Statistics, Parents in Prison and Their Minor Children (Aug.
2008), available at http://bis.oip.usdoi.gov/content/pub/pdf/pptmc.pdf
(last visited Sept. 15, 2011).......................................................................................32

Samuel R. Gross & Katherine Y. Barnes, Road Work: Racial Profiling and Drug 
Interdiction on the Highway,
101 Mich. L. Rev. 651 (2002)................................................................................... 29

viii

http://bis.oip.usdoi.gov/content/pub/pdf/pptmc.pdf


Justice Policy Institute, Baltimore Behind Bars: How to Reduce the Baltimore Jail 
Population, Save Money and Improve Public Safety (June 2010), available at 
http://www.iusticepolicy.org/uploads/iusticepolicy/documents/10- 
06 rep baltbehindbars md-ps-ac-rd.pdf (last yisited Sept. 15,2011).......................38

Charles M. Katz & Cassia C. Spohn, The Effect o f Race and Gender on Bail 
Outcomes: A Test o f an Interactive Model,
19 Am. J. of Crim. Just. 161 (1996)..........................................................................  27

Ryan S. King, The Sentencing Project, Disparity By Geography: The War on 
Drugs in America’s Cities 6 (May 2008), available at 
http://www.sentencingproiect.org/doc/publications/dp drugarrestreport.pdf 
(last visited Sept. 15,2011).......................................................................................29

1 Wayne R. LaFave et al., Criminal Procedure § 12.1(c) (3d ed. 2000).........................20

Leadership Conference on Civil Rights, Justice on Trial: Racial Disparities 
in the American Criminal Justice System (2000), available at: 
http://www.protectcivilrights.org/pdf/reports/iustice.pdf
(last yisited Sept. 15, 2011)......................................................................................  31

Jeffrey Manns, Liberty Takings: A Framework for Compensating Pretrial
Detainees, 26 Cardozo L. Rev. 1947 (2005)....................................................... 23, 30

Maryland Commission on Racial and Ethnic Fairness in the Judicial Process,
Report (2004), available at
http://www.courts.state.md.us/publications/racialethnicfairness04.pdf
(last visited Sept. 15,2011)....................................................................................... 33

Maryland Department of Public Safety and Correction Services,
2006 Annual Report (2006), available at
http://www.dpscs.state.md.us/publicinfo/publications/pdfs/AnnualReport2006 
DPSCS.pdf (last visited Sept. 15,2011).................................................................... 29

Maryland Judiciary, FY 2010 Annual Statistical Abstract (2010), available at 
http://www.courts.state.md.us/publications/annualreport/reports/2010/annualre 
port.pdf (last visited Sept. 15, 2011)........................................................................... 8

Marc Mauer & Ryan S. King, The Sentencing Project, Uneven Justice: State 
Rates o f Incarceration by Race and Ethnicity (July 2007), available at 
http://www.sentencingproject.org/doc/publications/rd stateratesofincbyraceand 
ethnicity.pdf (last visited Sept. 15, 2011)............................................................. 31-32

IX

http://www.iusticepolicy.org/uploads/iusticepolicy/documents/10-06_rep_baltbehindbars_md-ps-ac-rd.pdf
http://www.iusticepolicy.org/uploads/iusticepolicy/documents/10-06_rep_baltbehindbars_md-ps-ac-rd.pdf
http://www.sentencingproiect.org/doc/publications/dp_drugarrestreport.pdf
http://www.protectcivilrights.org/pdf/reports/iustice.pdf
http://www.courts.state.md.us/publications/racialethnicfairness04.pdf
http://www.sentencingproject.org/doc/publications/rd_stateratesofincbyraceand


Tracey L. Meares, Social Organization and Drug Law Enforcement,
35 Am. Crim. L. Rev. 191 (1998)..............................................................................  32

Minnesota Supreme Court Task Force on Racial Bias in the Judicial 
System, Final Report {1993), available at
http://www.mncourts.gOv/documents/0/Public/Court Information Office/Race 

Bias Report Complete.pdf (last visited Sept. 15,2011)........................................ 28

James F. Nelson, New York State Division of Criminal Justice Services,
Disparities in Processing Felony Arrests in New York State, 1990-1992 (1995), 
available at http://nysl.nysed.gov/Archimages/73104.PDF
(last visited Sept. 15, 2011).......................................................................................28

Charles J. Ogletree, Jr., Toward a More Effective Right to Assistance o f Counsel:
An Essay on the New Public Defender for the 21st Century,
58 Law & Contemp. Probs. 81 (1995).......................................................................  26

Steven Rickman, The Impact o f the Prison System on the African Community,
34 How. L.J. 524 (1991)............................................................................................  32

Leonard Saxe et al., The Visibility o f Illicit Drugs: Implications for Community- 
Based Drug Control Strategies,
91 Am. J. of Pub. Health 1987 (2001).......................................................................  29

Vincent Schiraldi & Jason Ziedenberg, Justice Policy Institute,
Race and Incarceration in Maryland (Oct. 2003), available at
http://www.iusticepolicy.org/uploads/iusticepolicy/documents/03-
10 rep mdraceincarceration ac-md-rd.pdf (last visited Sept. 15, 2011)..................32

Traci Schlesinger, The Cumulative Effects o f Racial Disparities in Criminal
Processing, 2007 J. Inst. Just. & Int’l Studs. 261 (2007)..........................................  28

Traci Schlesinger, Racial and Ethnic Disparity in Pretrial Criminal Processing
22 Just. Q. 170 (2005)................................................................................................  27

Michael Tonry, The Social, Psychological, and Political Causes o f Racial 
Disparities in the American Criminal Justice System,
39 Crime & Just. 273 (2010).....................................................................................  30

United States Census Bureau, 2006 American Community Survey: ACS 
Demographic and Housing Estimates for Baltimore City, available at 
http://factfmder.census.gov........................................................................................ 29

x

http://nysl.nysed.gov/Archimages/73104.PDF
http://www.iusticepolicy.org/uploads/iusticepolicy/documents/03-


United States Census Bureau, 2006 American Community Survey: ACS 
Demographic and Housing Estimates for Maryland, available at 
http://factfmder.census.gov ......................................................................................29

United States Census Bureau, 2009 American Community Survey 1-Year 
Estimates: Selected Population Profiles for Baltimore City, Maryland, 
available at http://factfmder.census.gov .................................................................. 26

United States Department of Justice, Bureau of Justice Statistics,
Defense Counsel in Criminal Cases (November 2000),
available at http://bis.oip.usdoi.gov/content/pub/pdf/dccc.pdf
(last visited Sept. 15,2011).......................................................................................26

Washington State Minority and Justice Commission, A Study on Racial and Ethnic 
Disparities in Superior Court Bail and Pre-Trial Detention Practices in 
Washington, Final Report (Oct. 1997), available at 
http://www.courts.wa.gov/committee/pdf/1997 ResearchStudy.pdf 
(last visited Sept. 15, 2011).......................................................................................27

xi

http://bis.oip.usdoi.gov/content/pub/pdf/dccc.pdf
http://www.courts.wa.gov/committee/pdf/1997_ResearchStudy.pdf


INTEREST OF AMICUS CURIAE

The NAACP Legal Defense and Educational Fund, Inc. (“LDF”) is the nation’s 

premier civil rights law firm. Founded as an arm of the NAACP in 1939 by Charles 

Hamilton Houston and Thurgood Marshall to redress injustice caused by racial 

discrimination and to assist African Americans in securing their constitutional and 

statutory rights, LDF has operated independently since 1957. Through litigation, 

advocacy, public education, and outreach, LDF works to secure equal justice under law 

for all Americans, and to break down the barriers that prevent communities of color from 

realizing their basic civil and human rights.

LDF has a longstanding commitment to ensuring adequate representation to the 

poor. The issue of adequate indigent defense has a particularly significant impact upon 

the African Americans who are disproportionately represented at every stage of the 

criminal justice system. For over seven decades, LDF attorneys have represented parties 

and participated as amicus curiae in litigation before federal and state courts asserting the 

right to counsel in criminal proceedings, including the prior proceedings before the Court 

of Appeals in this case, Richmond v. District Court o f Maryland, 412 Md. 672 (2010), as 

well as Rothgery v. Gillespie County, Texas, 554 U.S. 191 (2008), and Duncan v. State, 

795 N.W. 820 (Mich. 2011). LDF also has extensive experience with the design and 

implementation of remedies for constitutional violations including in cases such as 

Swann v. Charlotte-Mecklenburg Board o f Education, 402 U.S. 1 (1971), which is cited 

as relevant authority by the Public Defender in this case.

Xl l



INTRODUCTION AND SUMMARY OF ARGUMENT

The right to counsel in criminal proceedings -  guaranteed by both the Sixth 

Amendment to the U.S. Constitution and Article 21 of the Maryland Declaration of 

Rights -  is “indispensable to the fair administration of our adversary system of criminal 

justice.” Brewer v. Williams, 430 U.S. 387, 398 (1977). Indeed, this right is so respected 

in Maryland that the State has enacted the Public Defender Act to provide “significantly 

broader” rights than those provided under the federal or state constitution. McCarter v. 

State, 363 Md. 705, 713 (2001) (quoting State v Flansburg, 345 Md. 694, 700 (1997)); 

see Public Defender Act of 1970, currently codified at Md. Code, Crim. Proc. § 16-201 et 

seq.

The broad sweep of the Public Defender Act provides a clear statutory basis for 

affirming the Circuit Court’s decision declaring that indigent persons are entitled to 

counsel at the initial appearances at issue here, where District Court Commissioners 

make crucial determinations regarding pretrial detention, release, and bail (hereinafter 

“Bail Commissioner Hearings.”). Because the plain language of the Act unambiguously 

requires the provision of counsel to indigents at “all stages” of a criminal proceeding, Md. 

Code, Crim. Proc. § 16-204(b)(2), it necessarily includes Bail Commissioner Hearings. 

Indeed, as the Circuit Court held, this conclusion is “obvious[j.” E. 288.

Should this Court reach the constitutional question of whether the U.S.

Constitution and the Maryland Declaration of Rights also require provision of counsel at 

a Bail Commissioner Hearings, it is now undisputed that such a proceeding “marks the



initiation of adversary judicial proceedings that trigger attachment of the Sixth 

Amendment right to counsel.” Rothgeryv. Gillespie County, 554 U.S. 191, 194-95 

(2008); E. 284. Thus, the only question is whether the Circuit Court correctly applied 

Supreme Court precedent to conclude that a Bail Commissioner Hearing is a “critical 

stage” at which counsel must be afforded. E. 285 & n.6. In arguing that counsel is not 

required for these proceedings, the Commissioners of the District Court of Maryland for 

Baltimore City and the other District Court Appellants (“District Court Appellants”) 

ignore critical record evidence regarding the distinctive nature and adverse outcomes of 

Bail Commissioner Hearings in Baltimore City. In particular, the District Court 

Appellants fail to take account of the following critical facts: Bail Commissioner 

Hearings take place deep inside the jail (rather than in a courtroom); they are not 

transcribed or recorded; a Commissioner, who need not be a lawyer, may receive ex parte 

communications from a prosecutor about the facts of the case or other factors affecting 

the Commissioner’s decision; Commissioners are not required to provide Miranda-type 

warnings to arrestees, and thus arrestees may provide information in response to the 

Commissioner’s questions without knowing that the information may be used against 

them; and individuals who are unrepresented at a Bail Commissioner Hearing are less 

likely to be released on their own recognizance, and more likely to be assessed higher 

bail. In sum, the uncounseled participation in Bail Commissioner Hearings presents a

2



risk of substantial prejudice to the rights of persons charged with crimes, rendering these 

proceedings a “critical stage” under the Sixth Amendment.1

Furthermore, in deciding the constitutional and statutory questions at issue here, 

the Court should bear in mind that the absence of counsel at Bail Commissioner Hearings 

disproportionately affects African Americans and other Maryland residents of color, 

especially in Baltimore City, and contributes to the unfair over-representation of people 

of color in the justice system.2 Although African Americans represent only 64% of the 

population of the City of Baltimore, they account for 87% of persons in pretrial detention 

facilities. Not only are African Americans subjected to disproportionate arrest rates (due, 

in part, to racial profiling and other improper police conduct), but they also are more 

likely to be detained, receive higher bail, and languish in pretrial detention due to their 

inability to post bail as a result of disparities in income, wealth, and access to opportunity. 

As a result, African Americans rely more heavily on state-appointed counsel, and the 

failure to provide such essential assistance at Bail Commissioner Hearings will 

exacerbate the harmful consequences of racial discrimination and disproportionality in 

the criminal justice system.

f / We do not address the Circuit Court’s additional conclusion that due process rights 
provided by the Fourteenth Amendment and Article 24 of the Maryland Declaration of 
Rights guarantee counsel at Bail Commissioner Hearings. See Appellees’ Br. 38-44.
2/ Although this brief primarily focuses on African Americans, other minorities, in 
particular Latinos, are also disproportionately affected by the lack of representation in 
Bail Commissioner Hearings.

3



Finally, this Court should reject the Public Defender’s requests to vacate, defer, or 

otherwise delay a ruling declaring Plaintiffs’ right to counsel at Bail Commissioner 

Hearings. Public Defender Br. 21, 26. Although the Public Defender “agrees with 

Plaintiffs that indigent defendants have a right to counsel at their initial bail hearings 

before a Commissioner on both constitutional and statutory grounds,” id. at 1, he opposes 

the declaration of this right without additional remedial proceedings to address his 

budgetary concerns. While these concerns merit consideration, the Public Defender 

ignores the fact that a legal declaration that a Constitutional right has been violated is not 

contingent on the precise structure of a remedy. Moreover, the growing number of other 

states, as well as the federal government, that guarantee counsel at initial bail hearings 

suggests that the financial issues raised by the Public Defender can be effectively 

surmounted. To the extent that further judicial oversight proves necessary to assist the 

parties in fashioning an appropriate remedy, this Court should ensure that any such 

proceedings are prompt and provide efficacious relief for a long-standing constitutional 

and statutory violation.

STATEMENT OF THE CASE, QUESTIONS PRESENTED,
AND STATEMENT OF FACTS

Amicus joins in and adopts Appellees’ statement of the case, questions presented, 

and the statement of facts, see Appellees’ Br. 1-14, but summarizes here pertinent 

information regarding Bail Commissioner Hearings in Baltimore City.

3/ This brief focuses on the first, second and fourth questions presented by
4



After an individual is arrested in Baltimore City, Maryland Rules provide for the 

suspect to have an “initial appearance” in District or Circuit Court. Md. Rule 4-213. For 

most individuals arrested in Baltimore City, initial appearances are before District Court 

Commissioners (“Commissioners”). These “judicial officers” are adult residents -  who 

“need not be lawyers” -  appointed by the District Court to preside over initial 

appearances and other proceedings. Md. Code, Cts. & Jud. Proc. § 2-607(b)(l); see also 

Md. Const, art. 4, § 41G.

Under Maryland law, these Bail Commissioner Hearings have several purposes. 

First, the District Court Commissioner is required to advise the arrestee of the charges. 

Md. Rule 4-213(a)(1). Second, if an individual was arrested without a warrant, the 

Commissioner determines whether “there was probable cause for the arrest.” Md. Rule 

4-216(a). Third, the Commissioner decides whether the arrestee should be released on 

personal recognizance, released with conditions, such as financial bail, or detained 

without bail. Md. Rule 4-216(b), (e); Md. Code, Crim. Proc. § 5-202 (enumerating 

charges for which Commissioners may not authorize pretrial release).

Record evidence illustrates that -  at least under current practice in the District 

Court for Baltimore City -  Bail Commissioner Hearings have several features that are 

distinctive compared to other criminal proceedings in Maryland and elsewhere. Although 

hearings are required within 24 hours of arrest (unless a court grants an extension), they 

take place within the Baltimore City Booking and Intake Center (“Baltimore Central

Appellees. See Appellees’ Br. 7.
5



Booking Jail”) rather than in a courtroom. See Md. Code, Corr. Servs. § 5-404(b)(2).

The arrestee typically sits on one side of a Plexiglas wall in an interview booth, and the 

Commissioner sits on the other side. They communicate through a speaker system. See 

Abell Foundation, The Pretrial Release Project: A Study o f Maryland’s Pretrial Release 

and Bail System 21 (Sept. 2001) (hereinafter Pretrial Release Project) (E. 518).

There is no provision for state-appointed counsel at these hearings. Nor are 

Commissioners required to provide Miranda-type warnings. See E. 218, 457, 460-61. In 

fact, they did not do so for named representatives of the Plaintiff-Appellee Class. See id. 

Moreover, because these proceedings are closed to the public and the arrestee has been in 

custody since arrest, it is difficult for counsel of any sort, let alone the arrestee’s family 

members or friends, to gain access or advise the accused. E. 211-12, 218-19, 457, 460-61, 

550.

Despite the lack of defense counsel, ex parte communications between the 

Commissioner and the prosecutor are not prohibited and can be outcome determinative.

E. 211, 219-20, 222, 466, 472. The Commissioner asks a series of questions to the 

arrestee concerning residence, employment, family, ties to the community, prior record, 

and the current charge to determine conditions, if any, for release pending trial. See Md. 

Rule 4-216(d)(l). Commissioners “place considerable weight” upon the arrestee’s 

demeanor and responses, as well as past criminal record and the nature and circumstances 

of the charge. See Abell Foundation, Pretrial Release Project 22, 24-25 (E. 519, 

Appellees’ App. 2-3). A failure to answer questions, or a failure to answer the questions

6



in the desired fashion, may result in the imposition of bail or a higher amount of bail 

based on the arrestee’s non-cooperation. Significantly, the proceedings are neither 

officially transcribed nor recorded, but the Commissioner completes a written report in 

which inculpatory statements may be included and, thus, are available for use by the 

prosecutor at trial or for plea purposes. E. 218,457, 460-61.

When a Commissioner determines that an arrestee should be denied pretrial 

release or when an arrestee remains in custody for 24 hours after a Commissioner has 

determined the conditions of release (often because the arrestee cannot afford bail), the 

Maryland Rules provide for a Bail Review Hearing. Md. Rule 4-216(f). This hearing is 

held during the next available court session (usually within one to three days after the 

Bail Commissioner Hearing). Arrestees typically do not appear personally before the 

judge; rather, they appear via video-conference from the Baltimore Central Booking Jail. 

See Md. Rule 4-231(d). In Baltimore City, the Public Defender may (but often does not) 

provide counsel at these Bail Review Hearings; elsewhere in Maryland, indigent 

defendants remain unrepresented. See Appellees’ Br. 1. At the Bail Review Hearing, a 

District Court judge is supposed to review the Commissioner’s pretrial release 

determination and maintain or modify the amount and type of financial bail. Md. Rule 4- 

216(f).

Notwithstanding the unusual circumstances of Bail Commissioner Hearings, they 

acquire a de facto presumption of correctness. “Absent new information, a 

Commissioner’s detention decision is likely to be sustained.” Abell Foundation, Pretrial

7



Release Project 20 (E. 517). This is not surprising because Bail Review Hearings are 

perfunctory. According to a 2001 study, they typically lasted less than three minutes. Id. 

at 27 (Appellees’ App. 6). In nearly four out of five cases in Baltimore City, detainees 

were not even given the opportunity to present evidence or argument on their own behalf. 

Id. at 30 (Appellees’ App. 9).

For those in Baltimore City who do not post bail, the average length of pretrial 

detention is approximately 68 days. See Douglas L. Colbert et al., Do Attorneys Really 

Matter? The Empirical and Legal Case for the Right o f Counsel at Bail, 23 Cardozo L. 

Rev. 1719, 1756 & n.120 (2002). This substantial period of pretrial incarceration is 

especially disturbing given that charges against many individuals are ultimately dropped. 

Indeed, during fiscal year 2010, 54% of cases initiated in Baltimore City District Court 

either were dismissed, nolle prosequi'd, or placed on the inactive docket, a rate that is 

four percentage points higher than the statewide average. See Maryland Judiciary, FY 

2010 Annual Statistical Abstract, Table DC-4 at 54-55 (2010); Appellees’ Br. 11.

ARGUMENT

I. THE PUBLIC DEFENDER ACT GUARANTEES THE RIGHT TO
COUNSEL AT BAIL COMMISSIONER HEARINGS.

Whereas the right to counsel guaranteed by the Sixth Amendment applies only to 

“critical stages” of a criminal proceeding, Coleman v. Alabama, 399 U.S. 1, 7 (1970) 

(plurality), Maryland’s statutory right under the Public Defender Act sweeps more 

broadly, reaching “all stages” of a criminal proceeding, Md. Code, Crim. Proc. § 16-

8



204(b)(2). This Court has held, “‘[a]lT means ‘all,’” McCarter, 363 Md. at 716, and, as 

the Circuit Court properly concluded, certainly includes Bail Commissioner Hearings. 

None of the authority invoked by the District Court Appellants compels a different 

conclusion.

A. The Circuit Court’s Ruling Is Consistent With This Court’s Well- 
Settled Interpretation of the Public Defender Act.

In 1971, eight years after the U.S. Supreme Court’s seminal holding in Gideon v. 

Wainwright, 372 U.S. 335, 344 (1963), made the Sixth Amendment right to counsel 

applicable to the states, the Maryland General Assembly enacted the Public Defender Act. 

See Md. Code, Crim. Proc. § 16-201 et seq. According to the District Court Appellants, 

DCA Br. 12, the “impetus” for the Public Defender Act was Coleman, which reaffirmed 

the right to counsel recognized in Gideon', but this Court repeatedly has recognized that 

“‘the right to counsel under the Public Defender Act is significantly broader than the 

constitutional right to counsel.’” McCarter, 363 Md. at 713-14 (quoting Flansburg, 345 

Md. at 700).

The text of the Public Defender Act plainly establishes that “proceedings where 

there is a constitutional right to counsel constitute only one of the five categories where 

the statute grants a right to counsel.” McCarter, 363 Md. at 715. The Public Defender 

Act also “extend[s] to all stages in . . . criminal proceedings,” including “custody, 

interrogation, preliminary hearing, arraignment, trial, and appeal.” Md. Code, Crim. Proc. 

§ 16-204(b)(2).

9



This Court should “give effect to the statute as it is written.” MVA v. Shepard, 399 

Md. 241, 254 (2007) (citation and internal quotations omitted). Indeed, it has repeatedly 

done so. See Flansburg, 345 Md. at 700 (Public Defender Act guarantees a right to 

counsel for a motion for modification of sentence reimposed at a probation revocation 

hearing); Webster v. State, 299 Md. 581, 604 (1984) (pre-indictment lineups arranged by 

the police, at which suspects are exhibited in order to obtain evidence that they are the 

criminal agents, are “within the ambit of the Public Defender statute”).

Most recently in McCarter, 363 Md. at 716, this Court reaffirmed that the Public 

Defender Act applies to a proceeding quite similar to the Bail Commissioner Hearing at 

issue here -  i.e., an initial appearance before a Circuit Court pursuant to Rule 4-213(c). 

In so doing, this Court recognized that the Act’s identification of the various “stages” at 

which counsel was to be provided was “illustrative]” and not comprehensive, and 

instead “the statutory right to counsel ‘extends to all stages in the proceedings’ . . . 

regardless of [their] categorization.” McCarter, 363 Md. at 716; see Md. Code, Crim. 

Proc. § 16-204(b)(2).4 By this same logic, the Act also guarantees a right to an initial

4/ The District Court Appellants characterize McCarter's holding as “dictum,” DC A 
Br. 38, but it is nothing of the sort. “When a question of law is raised properly by the 
issues in a case and the Court supplies a deliberate expression of its opinion upon that 
question, such opinion is not to be regarded as obiter dictum,” regardless of whether other 
grounds support the determination. Schmidt v. Prince George’s Hosp., 366 Md. 535, 551 
(2001). In McCarter, the issue of whether the Public Defender Act requires counsel to be 
provided at an initial appearance was squarely before the Court. That the initial 
appearance in McCarter also involved a colloquy in which the defendant purported to 
waive his right to a jury trial, see DCA Br. 38, does not alter the analysis, because the 
Court’s holding did not depend on that waiver.

10



appearance before a Commissioner pursuant to Rule 4-213(a), previously referred to as a 

Bail Commissioner Hearing. As McCarter recognized, the Public Defender Act 

“expressly includes ‘all stages’” of a criminal proceeding, and ‘“ [a]ll’ means ‘all.’” 363 

Md. at 715-16; c f Wolfe v. Anne Arundel County, 374 Md. 20, 33 (2003) (relying on 

McCarter to broadly interpret “all” in another provision of the Maryland Code).

The District Court Appellants attempt to steer this Court away from the Act’s 

plain language and the import of McCarter, and instead argue that when applying the Act, 

this Court should undertake some sort of “critical stage analysis that focuses on the 

importance of the right to a determination of guilt or innocence or the protection of other 

important constitutional rights.” DCA Br. 37. Yet this Court has clearly held that the 

Act’s right to counsel is not so limited. McCarter, 363 Md. at 715.5

Because “all” clearly encompasses Bail Commissioner Hearings in Baltimore City, 

the Public Defender Act, and this Court’s interpretation of it in McCarter, control the 

outcome here.

B. Legislative History, To the Extent It Is Relevant, Does Not Compel 
Reversal.

The Public Defender Act is clear on its face and, as a result, this Court need not 

consider the non-statutory sources that the District Court Appellants invoke. Where, as

5/ Moreover, notwithstanding the District Court Appellants’ contention to the 
contrary, DCA Br. 37-39, Utt v. State has little bearing on this appeal. In holding that the 
Public Defender Act did not apply to a hearing on whether to extradite an individual to 
another state, the Court interpreted the Act to extend only to a criminal proceeding 
subject to the laws of Maryland. 293 Md. 271, 288 (1982). By contrast, a Bail 
Commissioner Hearing unquestionably is controlled by Maryland criminal law alone.

11



here, “the statutory language is plain and free from ambiguity, and expresses a definite 

and simple meaning, courts do not normally look beyond the words of the statute itself to 

determine legislative intent.” In re Gloria H., 410 Md. 562, 580 (2009) (quoting Degren 

v. State, 352 Md. 400, 417 (1999)). As this Court recently affirmed, “if a plain reading of 

the statute disposes of the case at hand, our inquiry as to legislative intent ends . . . .  for 

the Legislature is presumed to have meant what it said and said what it meant.” Guttman 

v. Wells Fargo Bank, — Md. —, 2011 WL 3568860, at *3 (Aug. 16, 2011) (citation and 

internal quotations omitted).

Other than the plain statutory text, perhaps the most important keys to divining 

legislative intent are the “policy” statements codified in the opening section of the Public 

Defender Act. The General Assembly unambiguously stated its purpose was not only to 

“provide for the realization of the constitutional guarantees of counsel in the 

representation of indigents,” but also to “assure effective assistance and continuity of 

counsel to indigent accused individuals taken into custody and indigent individuals in 

criminal and juvenile proceedings before the courts of th[is] State. .. .” Md. Code, Crim. 

Proc. § 16-201 (l)-(2). In construing the meaning of a statute, this Court “first attempt[s] 

to ascertain [the legislature’s] intent from the statutory language, reading pertinent parts 

of the legislative language together, giving effect to all of those parts.” Adamson v. 

Correctional Med. Servs., Inc., 359 Md. 238, 252 (2000) (citation and internal quotations 

omitted; second alteration in the original). This codified policy statement makes clear 

that the Act was intended to extend counsel “to indigent accused individuals taken into

12



custody,” and therefore applies to “all stages,” including an “indigent accused

individual[’s]” initial appearance at a Bail Commissioner Hearing, which occurs after the

individual has been “taken into custody.” Md. Code, Crim. Proc. § 16-201 (l)-(2).6

Accordingly, the Circuit Court’s ruling that the Public Defender Act mandates the

right to counsel at Bail Commissioner Hearings for indigent arrestees should be affirmed.

II. BAIL COMMISSIONER HEARINGS IN BALTIMORE CITY ARE A 
“CRITICAL STAGE” OF CRIMINAL PROCEEDINGS AND THUS 
REQUIRE PROVISION OF COUNSEL UNDER THE U.S.
CONSTITUTION AND MARYLAND DECLARATION OF RIGHTS.

This Court “adheres to ‘the established principle that a court will not decide a

constitutional issue when a case can properly be disposed of on a non-constitutional

ground.”’ McCarter, 363 Md. at 712 (quoting Baltimore Sun v. Mayor & City Council of

Baltimore, 359 Md. 653, 659 (2000)); accord Robinson v. State, 404 Md. 208, 217 (2008)

(“[I]t is this Court’s established policy to decide a constitutional issue only when

necessary.”). Should this Court reach the Appellees’ constitutional claims, however, the

distinctive nature of Bail Commissioner Hearings in Baltimore City -  and compelling

evidence of the impact attorneys have on the outcome of those proceedings -  warrants

affirmance of the Circuit Court’s holding under the Sixth Amendment of the U.S.

Constitution and Article 21 of the Maryland Declaration of Rights.7

6/ Nor do any of the legislative sources cited by the District Court Appellants 
contravene the Circuit Court’s conclusion that the Act requires the provision of counsel 
to indigents at Bail Commissioner Hearings. See generally Appellees’ Br. 23-26.
7/ This Court “considers] the right to counsel clause in Art. 21 as in pari materia 
with the right to counsel under the Sixth Amendment.” Webster, 299 Md. at 592 n.3;

13



A. Bail Commissioner Hearings in Baltimore City Are a Critical Stage 
For Which Counsel Must Be Provided Under the Sixth Amendment.

It is undisputed that, in light of the Supreme Court’s recent decision in Rothgery, 

the Sixth Amendment right to counsel has attached by the time a Bail Commissioner 

Hearing occurs. See DC A Br. 22. After the right attaches, the Constitution mandates that 

counsel must be provided to indigent persons at any “critical stage” where “potential 

substantial prejudice to defendant’s rights inheres in the . . . confrontation and the ability 

of counsel to help avoid that prejudice.” Coleman, 399 U.S. at 9 (plurality) (quoting 

United States v. Wade, 388 U.S. 218, 227 (1967)). Ever since Gideon, when the Supreme 

Court concluded that “reason and reflection require us to recognize that in our adversary 

system of criminal justice, any person haled into court, who is too poor to hire a lawyer, 

cannot be assured a fair trial unless counsel is provided for him,” 372 U.S. at 344, the 

animating principle of Sixth Amendment jurisprudence has been the “guarantee[ ]” that 

the “accused . . . need not stand alone against the State at any stage of the prosecution, 

formal or informal, in court or out, where counsel’s absence might derogate from the 

accused’s right to a fair trial.” Wade, 388 U.S. at 226 (emphasis added).

As the Circuit Court below found, the distinctive circumstances of Bail 

Commissioner Hearings in Baltimore City fit the definition of a “critical stage” set forth 

by the Supreme Court.8 This conclusion is compelled by the record evidence which

accord State v. Campbell, 385 Md. 616, 627 n.3 (2005). Thus, our discussion of the 
Sixth Amendment encompasses Article 21 as well.
8/ The District Court Appellants’ contention that the Circuit Court conflated the

14



confirms empirically the importance of counsel at Bail Commissioner Hearings in 

Baltimore City -  both in terms of the outcome of the Bail Commissioner Hearing (i.e., 

whether the defendant is detained pending trial) and the ultimate resolution of the 

criminal proceeding (i.e., whether the defendant is convicted). Thus, if this Court reaches 

the Circuit Court’s constitutional ruling, it should be affirmed.

1. Baltimore City Bail Commissioner Hearings Meet the Supreme 
Court’s Test For Determining Whether a Stage in a Criminal 
Proceeding Is “Critical” For Sixth Amendment Purposes.

The Supreme Court’s “critical stage” test was first articulated in Wade, 388 U.S. at 

227. Distilled to its essence, this standard requires courts to analyze, first, “whether 

potential substantial prejudice to defendant’s rights inheres” in the “particular” stage of 

the proceeding at issue, and second, “the ability of counsel to help avoid that prejudice.” 

Id.\see also United States v. Ash, 413 U.S. 300, 313 (1973) (requiring “examination of 

the event in order to determine whether the accused required aid in coping with legal 

problems or assistance in meeting his adversary”). “Critical stage” analysis invariably 

requires a case-by-case, context-specific determination. See Rothgery, 554 U.S. at 212. 

The Supreme Court has not hesitated to require an “expansion” in the right to counsel

“attachment” and “critical stage” analyses is incorrect. DC A Br. 26. The Circuit Court 
properly found, first, that Rothgery addressed the point at which “the initiation of 
adversary judicial proceedings that trigger attachment of the Sixth Amendment right to 
counsel” occurred, and compared the Bail Commissioner Hearing favorably for these 
purposes to “the hearing before the magistrate in Rothgery.” E. 284. Only then did the 
Circuit Court proceed to conduct its critical stage analysis. See E. 285.

15



whenever “new contexts appear presenting the same dangers that gave birth initially to 

the right itself.” Ash, 413 U.S. at 311.

In finding that the Bail Commissioner Hearing is a “critical stage,” the Circuit 

Court identified the “prompt restrictions on the defendant’s liberty” and the “risk of 

incrimination” inherent in the Bail Commissioner Hearing as factors supporting its 

conclusion. E. 285. These factors are consistent with well-settled precedent on what 

constitutes a “critical stage” for purposes of the Sixth Amendment right to counsel.

The Supreme Court has long “recognized that certain pretrial events” are critical 

stages because they “may so prejudice the outcome of the defendant’s prosecution that, as 

a practical matter, the defendant must be represented at those events in order to enjoy 

genuinely effective assistance at trial.” Rothgery, 554 U.S. at 217 (Alito, J., concurring); 

see also Ash, 413 U.S. at 309-10; Wade, 388 U.S. at 226. Such events include pretrial 

interrogation, a pretrial psychiatric exam, and certain kinds of arraignments. See, e.g., 

Rothgery, 554 U.S. at 217 (Alito, J., concurring); Michigan v. Harvey, 494 U.S. 344, 358 

n.4 (1990); Estelle v. Smith, 451 U.S. 454, 470-71 (1981); Brewer, 430 U.S. at 401; 

Coleman, 399 U.S. at 7; White v. Maryland, 373 U.S. 59, 60 (1963).9

9/ The District Court Appellants treats the “adversarial” character of a stage as 
dispositive as to whether it is “critical,” see DCA Br. 29-31, but the Supreme Court has 
held even non-adversarial events to be “critical stages” for purposes of the Sixth 
Amendment right to counsel. See Estelle, 451 U.S. at 470 (court-ordered psychiatric 
examination is “critical stage”). In any event, a Bail Commissioner Hearing does 
constitute “an adversarial proceeding between an individual and agents of the state,” 
Rothgery, 554 U.S. at 212 n.16, because Commissioners serve as both neutrals and agents 
of the state; they may factor prosecutors’ ex parte communications in their initial bail

16



Coleman v. Alabama was one of the earliest applications of this “critical stage” 

test to pretrial proceedings, and it is particularly pertinent to the circumstances of the 

present appeal. The Court concluded that a preliminary hearing “to determine whether 

there is sufficient evidence against the accused to warrant presenting his case to the grand 

jury and, if so, to fix bail if the offense is bailable” was a “critical stage.” 399 U.S. at 8- 

10; see also id. at 11-12 (Black, J., concurring); id. at 17-18 (White, J., concurring); id. at 

19 (Harlan, J., concurring in part). In reaching this conclusion, the principal opinion 

identified a number of areas in which “the guiding hand of counsel” was “essential to 

protect the indigent accused against an erroneous or improper prosecution.” Id. at 9 

(plurality).

For instance, the principal opinion in Coleman acknowledged that a lawyer’s 

involvement in the preliminary hearing at issue in that case could “expose fatal 

weaknesses in the State’s case that may lead the magistrate to refuse to bind the accused 

over.” Id. So too here, counsel’s presence at a Bail Commissioner Hearing could 

identify weaknesses in the accusatory document, which may convince the prosecutor 

(either at the hearing itself or thereafter) to reduce or dismiss the charge altogether in 

order to prevent an unlawful or unjust prosecution. Indeed, the fact that over half of 

prosecutions initiated in Baltimore City District Court are not ultimately pursued suggests 

that many of these cases were not very strong in the first place.

determination, and they are required to consider numerous facts about the defendant and 
the crime charged. See Appellees’ Br. 34-35.

17



In addition, Coleman recognized that the assistance of counsel may greatly 

improve bail outcomes, as “counsel can also be influential at the preliminary hearing in 

making effective arguments for the accused on such matters as the necessity for . . . bail.” 

Id. Counsel may be able to corroborate information about the accused, such as residence, 

community ties, and employment, which are relevant factors in the pretrial detention 

determination. Or, the attorney may be able to arrange for family members or friends to 

be present to vouch for the arrestee. The attorney may also be able to explain or mitigate 

unfavorable information about the nature of the charges or the client’s prior criminal 

history. As discussed below, see infra § II.A.2, the improved bail outcomes that may 

result from an attorney’s advocacy will have a measurable effect on the ultimate 

disposition of the criminal proceeding against the accused because individuals who are 

detained pending trial are more likely to be convicted and suffer harsher sentences.

Coleman also acknowledged that “trained counsel can more effectively discover 

the case the State has against his client and make possible the preparation of a proper 

defense to meet that case at the trial.” Id. Similarly, counsel’s presence at the Bail 

Commissioner Hearing provides an important opportunity to assess the strength of the 

State’s case, and to consult with the arrestee to obtain assistance in tracking down 

witnesses and other information to prepare an effective defense for trial. Cf. Lavallee v. 

Justices in Hampden Super. Ct., 812 N.E.2d 895, 904 (Mass. 2004) (“The effects of the 

passage of time on memory or the preservation of physical evidence are so familiar that 

the importance of prompt pretrial preparation cannot be overstated.”). Here, this factor is

18



even more crucial because Bail Commissioner Hearings are not transcribed, and thus 

crucial information may be lost once the hearing has ended. See E. 285 (lack of 

transcription or recordation “mak[es] it impossible to review what the Commissioner or 

arrestee said to determine the basis for the Commissioner’s ruling”).

Equally important, counsel may be able to advise the arrestee as to which of the 

questions posed directly by the Commissioner should or should not be answered.

Without the assistance of counsel, certain questions may elicit incriminating answers that, 

in Maryland, may be used against the accused in a subsequent trial or plea negotiation.

See Fenner v. State, 381 Md. 1, 23-24 (2004) (admitting unrepresented defendant’s 

inculpatory statement from a Bail Review Hearing); Schmidt v. State, 60 Md. App. 86, 95 

(1984) (admitting an unrepresented defendant’s statement from a bail hearing taking 

place in district court).10 Conversely, counsel may also help avert situations where 

arrestees refuse to respond to Commissioners’ questions by divulging information that 

poses little risk of self-incrimination but may be quite helpful in obtaining more favorable 

bail outcomes.

The District Court Appellants’ argument that Gerstein v. Pugh, 420 U.S. 103 

(1975), “limits the reach of Coleman” on the issue of what constitutes a “critical stage,” 

DCA Br. 30, is without merit. Gerstein was a Fourth Amendment “unlawful seizure” 

case, not a Sixth Amendment “right to counsel” case, and the Court “limit[ed] [its]

10/ These risks do not appear to have been present in Coleman because Alabama law 
“prohibited] the State’s use at trial of anything that occurred at [a] hearing” at which 
“the accused ha[d] no lawyer.” 399 U.S. at 9.

19



holding to the precise requirement of the Fourth Amendment.” 420 U.S. at 123.

Moreover, the Supreme Court has never subsequently cited Gerstein in Sixth Amendment 

“critical stage” analysis. By contrast, the Court has regularly cited Coleman -  which, as 

discussed, supports the extension of the right to counsel at Bail Commissioner Hearings. 

See, e.g., Rothgery, 554 U.S. at 203; Maine v. Moulton, 474 U.S. 159, 170 (1985); Estelle, 

451 U.S. at 470; Ash, 413 U.S. at 311; Kirby v. Illinois, 406 U.S. 682, 688 (1972). Thus, 

Coleman was not limited by Gerstein, remains good law, and compels affirmance of the 

Circuit Court’s decision that the Bail Commissioner Hearing at issue here is a “critical 

stage” at which the right to counsel must be constitutionally provided. The distinctive 

circumstances of Bail Commissioner Hearings “so prejudice the outcome of the 

defendant’s prosecution that, as a practical matter, the defendant must be represented at 

those events in order to enjoy genuinely effective assistance at trial.” Rothgery, 554 U.S. 

at 217 (Alito, J., concurring).11

2. Critical Record Evidence Supports the Conclusion That a
Baltimore City Bail Commissioner Hearing Is a Critical Stage.

In Coleman, the Supreme Court held that a preliminary hearing was a critical stage 

based largely on speculation regarding the potentially detrimental impacts to the 

unrepresented defendant; here, notwithstanding the District Court Appellants’ suggestion

\\J Scholars, too, advocate that the right to counsel should apply to bail proceedings. 
See, e.g., 1 Wayne R. LaFave et al., Crim. Proc. § 12.1(c), at 640 (3d ed. 2000)
(“Because counsel for the defendant can make such an impact at the bail hearing, there is 
much to be said for the contention that the Sixth Amendment right to counsel applies at 
that time.”).

20



to the contrary, DCA Br. 34, the Court is presented with the unusual benefit of empirical 

evidence conclusively establishing, first, the distinctive nature of Bail Commissioner 

Hearings in Baltimore City, see Abell Foundation, Pretrial Release Project 19-35 (E. 

514-17; Appellees’ App. 2-14), and, second, that a lawyer’s advocacy is a critical factor 

in determining whether arrestees in Baltimore City will be released shortly after their 

arrest or will spend substantial periods of time in pretrial incarceration, see Colbert et al., 

supra, 23 Cardozo L. Rev. at 1763. This study of the impact of a program called the 

Baltimore Lawyers at Bail Project (“Bail Project”) supports what the principal opinion in 

Coleman recognized was a key area in which counsel could provide assistance at an early, 

“critical stage” of the proceeding: “making effective arguments for the accused on such 

matters as the necessity for . . . bail.” Coleman, 399 U.S. at 9; c f Rothgery, 554 U.S. at 

208-09 (refusing to “ignore prejudice to a defendant’s pretrial liberty” in constitutional 

analysis of the denial of counsel).

The critical importance of assistance of counsel in Bail Commissioner Hearings in 

Baltimore City, and its impact on the arrestee, is not an issue of mere conjecture. The 

Bail Project represented nearly 4,000 lower-income arrestees accused of nonviolent 

offenses in Baltimore City in Bail Review Hearings, the proceedings pursuant to Rule 4- 

216(f) at which a District Court judge reviews the initial pretrial detention determination 

by the Commissioner. See Colbert et al., supra, 23 Cardozo L. Rev. at 1720-21. In a 

randomized study evaluating the overall effect of the Bail Project, researchers found that 

indigent arrestees represented by counsel were over two-and-a-half times as likely as

21



unrepresented arrestees with similar characteristics to be released on their own 

recognizance, and two-and-a-half times as likely to obtain a reduction of bail from the 

amount set at the initial Bail Commissioner Hearing to a more affordable level. Id. at 

1720, 1752-56.

Moreover, represented defendants spent less time in jail. Nearly two-thirds of 

represented defendants were released from jail within nine days of their arrest, while only 

half of defendants without lawyers were released. Id. at 1755. Indeed, denial of 

representation in bail proceedings was the single most important reason for lengthy 

pretrial incarceration of people charged with nonviolent crimes. Id. at 1720. Without 

counsel present, judicial officers made less informed decisions and were more likely to 

set or maintain a pretrial release financial condition that was beyond the individual’s 

ability to pay. Id.

The results of the Bail Project study are even more significant when viewed in 

light of statistical analysis that, as previously discussed, over half of all cases initiated in 

the District Court of Baltimore City ultimately are not prosecuted. Moreover, for the 

reasons described below in Section III, there is evidence that African Americans are over­

represented among those arrested in Baltimore and, as a result, they are also over­

represented among those who are detained but ultimately are not prosecuted. Cf. Julie 

Bykowicz, Grand Jury Decries “Arrests without Merit”: Lack o f Charges in Many City 

Cases Noted, Balt. Sun, Mar. 7, 2006, at IB (noting Baltimore Grand Jury finding “that 

21,721 African Americans in Baltimore were arrested but not charged between April

22



2004 and March 2005.”) '12 Consequently, without access to counsel, many pretrial 

detainees, including large numbers of African Americans, spend lengthy periods in jail 

awaiting trials that will not occur on charges that will not be prosecuted. And, as the Bail 

Project confirms, representation at Bail Commissioner Hearings can avert many of these 

unnecessary incarcerations.

This data compels the inevitable conclusion that the absence of counsel at Bail 

Commissioner Hearings in Baltimore City has resulted in the unnecessary incarceration 

of substantial numbers of persons for lengthy periods -  that is, until the “grace of [the] 

Dickensian bureaucratic machine” gives them their due release. County o f Riverside v. 

McLaughlin, 500 U.S. 44, 71 (1991) (Scalia, J., dissenting). Moreover, given the 

frequency at which charges ultimately are dismissed or placed on inactive status, 

prosecutors may be inclined to use the initial pretrial detention period as a form of 

strategic leverage over, or informal punishment for, persons whose cases they will 

ultimately decline to pursue. Cf. Jeffrey Manns, Liberty Takings: A Framework for 

Compensating Pretrial Detainees, 26 Cardozo L. Rev. 1947, 1951 (2005) (“[PJretrial 

detention has become a tool of prosecutorial efficiency to heighten pressure for plea

12/ The General Assembly recently acknowledged the problems caused by high rates 
of arrests that do not lead to prosecution, let alone conviction. In 2007, it passed 
legislation to expunge automatically the arrest records of individuals who are not 
charged. Md. Code, Crim. Proc. § 10-103.1. Expungement protects against collateral 
consequences of arrest records, which may show up in background checks and, thus, 
prevent unlawfully arrested individuals from obtaining jobs, mortgages, or professional 
licenses. See James Drew, A Chance for a Clean Slate: Automatic Expungement Law 
Has Helped Thousands Clear Arrest Records, Balt. Sun, July 7, 2008, at 1A.

23



bargaining and to serve as a means of informal punishment.”). The presence of counsel 

at the Bail Commissioner Hearings is critical to address the systemic risk of such 

manipulation on the part of prosecutors.

B. Rothgery and the Compelling Record Evidence Undermine the 
Continuing Validity of This Court’s Ruling in Fenner v. State.

The District Court Appellants rely heavily on this Court’s decision seven years 

ago in Fenner, in arguing that Bail Commissioner Hearings are not critical stages 

requiring assistance of counsel. See, e.g., DCA Br. 25, 31-32. As the Circuit Court 

recognized, however, the Supreme Court’s recent decision in Rothgery -  as well as the 

compelling statistical evidence demonstrating the distinctive nature of Bail 

Commissioner Hearings in Baltimore City and the material improvement in outcomes 

that comes with the assistance of counsel -  squarely calls into question the continuing 

validity of Fenner. See E. 283-84.

As a threshold issue, Fenner made no mention of the Public Defender Act or the 

Court’s recent interpretation of that statute in McCarter, 363 Md. at 713. Fenner's 

holding was based solely on constitutional grounds and, thus, has no bearing on the 

analysis of the Public Defender Act set forth in Section I, supra.

In any event, the continuing validity of Fenner's constitutional holding, rejecting a 

Sixth Amendment right to counsel at Bail Review Hearings, 381 Md. at 26, is 

questionable. As Rothgery makes clear, the Fenner Court improperly collapsed the 

separate inquiries regarding when the right to counsel attaches, on the one hand, and the

24



identification of critical stages where counsel is absolutely required, on the other. See 

381 Md. at 4 (“holding] that, because petitioner’s bail review hearing was not a ‘critical 

stage4 of the pretrial proceedings . . ., petitioner’s Sixth Amendment right to provided 

counsel had not yet attached.”).

As discussed previously, it is undisputed that the Sixth Amendment right to 

counsel has attached by the time that Bail Commissioner Hearings occur. Rothgery, 554 

U.S. at 213; DCA Br. 22. As the District Court Appellants effectively acknowledge, 

DCA Br. 32 n. 17, to the extent that the outcome in Fenner depended even in part on its 

conclusion that the right to counsel “had not yet attached” at the stage of proceedings at 

issue in that case, Fenner is overruled by Rothgery.

Indeed, this is an easier case than Fenner. Fenner dealt with a Bail Review 

Hearing before a District Court judge, which is a more structured type of proceeding with 

more protections for the accused. Bail Commissioner Hearings, by contrast, are less 

protective of fair trial rights insofar as they are closed to the public and presided over by 

a non-lawyer, non-judge; the defendant remains in jail; the outcome may be influenced 

by ex parte communications between the prosecutor and Commissioner; and arrestees’ 

statements may be used against them at trial even though they are not given Miranda- 

type. warnings, and there is no other option but to speak on one’s own behalf. Moreover, 

the Commissioner’s determination typically acquires a presumption of validity in the 

subsequent Bail Review Hearing.

25



Even setting these distinctions aside, the Court in Fenner was careful to limit its 

holding to the “circumstances” of that case. 381 Md. at 23. Moreover, in Fenner, the 

Court did not have the benefit of the empirical evidence in the record here demonstrating 

precisely how important counsel can be at the Bail Commissioner Hearing, especially in 

Baltimore City. Fenner, therefore, does not provide an impediment to a ruling by this 

Court that counsel is constitutionally mandated for indigent arrestees at Bail 

Commissioner Hearings in Baltimore City.

III. AFRICAN AMERICANS ARE DISPROPORTIONATELY AFFECTED BY 
MARYLAND’S FAILURE TO GUARANTEE COUNSEL AT BAIL 
COMMISSIONER HEARINGS.

African Americans bear the brunt of Maryland’s failure to provide counsel at Bail 

Commissioner Hearings, especially in Baltimore City. As an initial matter, African 

Americans and other communities of color are more likely than whites to rely on state- 

appointed counsel where available. A 2000 survey by the U.S. Department of Justice 

found that “69% of white inmates reported they had lawyers appointed by the court,” 

whereas “77% of blacks and 73% of Hispanics had public defenders or assigned 

counsel.” U.S. Dep’t of Justice, Bureau of Justice Statistics, Defense Counsel in 

Criminal Cases 9 (Nov. 2000).

African Americans’ disproportionate reliance upon state-appointed counsel is 

primarily due to disparities in wealth, income, and access to opportunity. See Charles J. 

Ogletree, Jr., Toward a More Effective Right to Assistance o f Counsel: An Essay on the 

New Public Defender for the 21st Century, 58 Law & Contemp. Probs. 81, 83 (1995). In

26



Baltimore City, for instance, 23.7% of African Americans lived below the poverty rate in 

2009, compared with 13.9% of whites. See U.S. Census Bureau, 2009 American 

Community Survey 1-Year Estimates: Selected Population Profiles for Baltimore City.

Not only do African Americans and other communities of color rely more heavily 

on state-appointed counsel, but they also are disproportionately affected by the failure to 

provide such assistance in Bail Commissioner Hearings. Numerous studies show that 

African Americans experience less favorable outcomes in pretrial detention hearings than 

whites. For instance, the odds of pretrial detention for African-American and Latino 

defendants, respectively, are 96% and 150% higher for drug offenses and 50% and 61% 

higher for property offenses than for white defendants. See Stephen Demuth, Racial and 

Ethnic Differences in Pretrial Release Decisions and Outcomes: A Comparison of 

Hispanic, Black, and White Felony Arrestees, 41 Criminology 873, 898 (2003); see also 

Stephen Demuth & Darrell Steffensmeier, The Impact o f Gender and Race-Ethnicity in 

the Pretrial Release Process, 51 Soc. Probs. 222, 238 (2004) (finding African-American 

and Latino males are “more likely to be preventively detained, to receive a financial 

release option, to post a higher bail, and to be unable to post bail to secure their release” 

than white males); Traci Schlesinger, Racial and Ethnic Disparity in Pretrial Criminal 

Processing, 22 Just. Q. 170, 173-74 (2005) (summarizing literature).13

13/ Studies of jurisdictions elsewhere in the country also have found racial disparities 
in pretrial detention. See, e.g., Washington State Minority and Justice Commission, A 
Study on Racial and Ethnic Disparities in Superior Court Bail and Pre-Trial Detention 
Practices in Washington, Final Report 7 (1997) (“[Minority defendants . . . were less

27



Similarly, higher bail amounts are imposed upon African Americans. See, e.g.,

Ian Ayres & Joel Waldfogel, A Market Test for Race Discrimination in Bail Setting, 46 

Stan. L. Rev. 987, 992 (1994) (finding that “bail amounts set for black male defendants 

were 35 percent higher than those set for their white male counterparts”). Even where no 

such racial disparity in the amount of bail exists, African Americans are more likely to 

remain in jail awaiting trial because they are significantly less likely to be able to afford 

bail, due to the disparities in income and access to opportunity previously discussed. See 

Traci Schlesinger, The Cumulative Effects o f Racial Disparities in Criminal Processing, 

2007 J. Inst. Just. & Inf 1 Studs. 261, 273 (2007) (“Blacks and Latinos have odds of 

making bail that are less than half those of [wjhites with the same bail amounts and legal 

characteristics.”); see also Demuth, supra, 41 Criminology at 899. The bond agent’s fee 

alone can impose a severe burden. See Abell Foundation, Pretrial Release Project ii n.5

likely to be released on their own recognizance than others even after adjusting for 
differences among defendants in the severity of their crimes, prior criminal records, ties 
to the community and the prosecuting attorney’s recommendation.”); Charles M. Katz & 
Cassia C. Spohn, The Effect o f Race and Gender on Bail Outcomes: A Test o f an 
Interactive Model, 19 Am. J. of Crim. Just. 161, 172, 179 (1996) (African Americans in 
Detroit were less likely to be released pending trial than whites, after controlling for prior 
felony conviction, probation status, other pending charges, and several variables 
measuring the seriousness of the crime); James F. Nelson, New York State Division of 
Criminal Justice Services, Disparities in Processing Felony Arrests in New York State, 
1990-1992, at v-vi, xi (1995) (10% of all minority pretrial detainees in New York City, 
and 33% of all minority pretrial detainees in the rest of New York State, would be 
released before arraignment if minorities were detained as often as comparably situated 
whites); Minnesota Supreme Court Task Force on Racial Bias in the Judicial System, 
Final Report 23 (1993) (“[Rjace of the defendant is a statistically significant factor when 
offense severity level is held constant in the setting of bail and pretrial release in 
Hennepin County,” Minnesota’s most populous jurisdiction).

28



(“Seventy percent of interviewed arrestees for this Study reported that the expense of the 

bondsmen’s fee would result in a delay paying rent and utilities and in buying less food.”) 

(citation omitted) (E. 491).

As a result of these far less favorable outcomes at pretrial detention hearings, it is 

not surprising that African Americans are disproportionately represented among the 

pretrial detention population in Baltimore City. Whereas African Americans comprised 

approximately 64% of Baltimore City’s population and 29% of the State of Maryland’s 

population in 2006, see U.S. Census Bureau, 2006 American Community Survey: ACS 

Demographic and Housing Estimates for Baltimore City, U.S. Census Bureau, 2006 

American Community Survey: ACS Demographic and Housing Estimates for Maryland, 

they accounted for 87% of the pretrial detainee population in jails operated by the 

Maryland Department of Pretrial Detention Services as of June 30, 2006. See Maryland 

Department of Public Safety and Correctional Services, 2006 Annual Report 25 (2006).14

14/ In addition, racial disparities in pretrial detention are a consequence of inequities 
in arrest rates, especially for drug-related offenses. See Ryan S. King, The Sentencing 
Project, Disparity By Geography: The War on Drugs in America’s Cities 10 (May 2008). 
By 2003, an African American in Baltimore City was over four times more likely to be 
arrested for a drug offense than a white resident. Id. at 15. Yet “there are no national 
data that would suggest that black rates of drug use or selling rose dramatically more than 
white rates” since 1980, a period that saw a dramatic increase in drug-related arrests. Id. 
at 16. Rather, African Americans’ higher arrest rate primarily reflects a tendency by law 
enforcement to focus on inner-city, high-poverty neighborhoods, where drug sales are 
more visible and fewer treatment resources are available. See, e.g., Leonard Saxe et al., 
The Visibility o f Illicit Drugs: Implications for Community-Based Drug Control 
Strategies, 91 Am. J. of Pub. Health 1987 (2001). Racial profiling also contributes to 
disparate arrest rates. See Samuel R. Gross & Katherine Y. Barnes, Road Work: Racial 
Profiling and Drug Interdiction on the Highway, 101 Mich. L. Rev. 651, 715-17 (2002);

29



Not only would the provision of a right to counsel at Bail Commissioner Hearings 

benefit all arrestees because, as the studies cited in § II.A.2 supra illustrate, persons who 

are counseled at such proceedings fare better than those who are not, but in addition 

attorneys may help reduce racial disparities as well. Racial disparity in pretrial outcomes 

is explained, at least in part, by biases -  even if unconscious -  about African-American 

and other minority defendants that may inform Commissioners’ analyses of the relevant 

factors for pretrial release determinations. See Demuth & Steffensmeier, supra, 51 Soc. 

Probs. at 226 (“Research on labeling and stereotypes of black and Hispanic offenders 

reveals that court officials (and society-at-large) often view them as violent-prone, 

threatening, disrespectful of authority, and more criminal in their lifestyles.”); see also 

Michael Tonry, The Social, Psychological, and Political Causes of Racial Disparities in 

the American Criminal Justice System, 39 Crime & Just. 273, 276 (2010); Jennifer L. 

Eberhardt et al., Seeing Black: Race, Crime, and Visual Processing, 87 J. of Personality 

& Soc. Psychol. 876 (2006); Jennifer L. Eberhardt et al., Looking Deathworthy: 

Perceived Stereotypicality o f Black Defendants Predicts Capital-Sentencing Outcomes,

17 Psychol. Sci. 383 (2006). The assistance of counsel at Bail Commissioner Hearings 

may help challenge or overcome such stereotypes by providing useful evidence regarding 

the individual arrestee’s particular background and circumstances.

Racial disparities in pretrial detention outcomes, in turn, have serious

see also Md. Conference ofNAACP Branches v. Md. Dep’t o f State Police, 72 F. Supp.
2d 560 (D. Md. 1999).

30



consequences both for individual arrestees and the broader African-American community. 

After controlling for the type of charge and criminal history, defendants who spend 

longer periods of time in pretrial detention are convicted at higher rates and receive more 

severe sentences. See, e.g., Manns, supra, 26 Cardozo L. Rev. at 1972 (“Numerous 

empirical studies have suggested that the longer a person spends time in pretrial detention, 

the more likely she will be convicted and the more likely that the sentence will be 

severe.”); Charles E. Frazier & Donna M. Bishop, The Pretrial Detention o f Juveniles 

and Its Impact on Case Dispositions, 76 J. of Crim. L. & Criminology 1132, 1139-52 

(1985) (finding that holding all other variables constant, detained juveniles were more 

likely to be convicted and to face harsher sentences than those released on bail). 

Explaining this correlation, defendants released pending trial are more likely to be able to: 

(a) provide assistance to their attorneys in obtaining witnesses and evidence; and (b) 

obtain a beneficial plea bargain or sentence by impressing the prosecutor and/or court 

with evidence of their ability to maintain employment and community ties. Stevens H. 

Clarke & Susan T. Kurtz, The Importance of Interim Decisions to Felony Trial Court 

Dispositions, 1A J. of Crim. L. & Criminology 476, 502-05 (1983). Conversely, a 

defendant may be more willing to accept an unfavorable plea bargain after spending a 

long time in jail pending trial. Id. Moreover, jurors often discern a defendant’s detention 

status—even though they are not supposed to be able to do so—and are more likely to 

convict a defendant who is already incarcerated. See Leadership Conference on Civil 

Rights, Justice on Trial: Racial Disparities in the American Criminal Justice System 16

31



(2000).

Thus, racial disparities in pretrial detention contribute to the higher rates of post­

trial incarceration for African Americans. In 2005, African-American Marylanders were 

5.5 times more likely than whites to be incarcerated. See Marc Mauer & Ryan S. King, 

The Sentencing Project, Uneven Justice: State Rates o f Incarceration by Race and 

Ethnicity 6, 11 (July 2007); see also Vincent Schiraldi & Jason Ziedenberg, Justice 

Policy Institute, Race and Incarceration in Maryland (Oct. 2003).

Moreover, even brief periods of pretrial detention can result in job loss, missed 

doctors’ appointments and interruption in critical medical treatment, eviction from homes, 

and other collateral consequences. The arrestee’s family may suffer the absence of an 

economic provider. During pretrial detention in Baltimore City and elsewhere, arrestees 

often are denied any real chance to arrange child care or other critical needs for the 

families. The consequences for African-American children are particularly significant.

In 2007, 6.7% of all African-American children had a parent in prison -  a rate seven and 

a half times higher than that for white children. Lauren E. Glaze & Laura M. Maruschak, 

U.S. Dep’t of Justice, Bureau of Justice Statistics, Parents in Prison and Their Minor 

Children 2 (Aug. 2008).

The costs associated with pretrial detention also reach beyond individual families 

and deprive minority communities of the social, financial, and human capital necessary 

for stability and vitality. See Todd R. Clear et al., Incarceration and the Community: The 

Problem o f Removing and Returning Offenders, 47 Crime & Delinq. 335, 341 (2001);

32



Steven Rickman, The Impact o f the Prison System on the African Community, 34 How.

L.J. 524, 526 (1991); Tracey L. Meares, Social Organization and Drug Law Enforcement, 

35 Am. Crim. L. Rev. 191, 194 (1998). These community implications are especially 

severe in Baltimore City, where there are concentrations of African-American residents 

in high-poverty neighborhoods, often due to persistent housing discrimination. Cf 

Thompson v. U.S. Dep’t o f Housing & Urban Dev., 348 F. Supp. 2d 398 (D. Md. 2005). 

Thus, there is a recurring cycle. Disproportionate incarceration, even for brief periods 

pending trial, contributes to the inequities in access to resources and opportunity that 

inhibit African Americans’ ability to post bail.

Maintaining an unnecessarily large pretrial population, consisting overwhelmingly 

of poor people of color who are denied counsel and unable to afford bail, also jeopardizes 

the public’s perception of the criminal justice system’s integrity and fairness. See, e.g., 

Donald Braman, Punishment and Accountability: Understanding and Reforming 

Criminal Sanctions in America, 53 UCLA L. Rev. 1143, 1165 (2006) (explaining that 

“prominent legal theorists” and “a broad array of recent empirical studies” support the 

notion that “[wjhen citizens perceive the state to be furthering injustice .. . they are less 

likely to obey the law, assist law enforcement, or enforce the law themselves”). Not 

surprisingly in light of the foregoing, a 2004 survey found that African Americans and 

other minorities in Maryland were twice as likely as whites to perceive unfairness in the 

state criminal justice system. See Maryland Commission on Racial and Ethnic Fairness 

in the Judicial Process, Report 18 (2004).

33



Thus, provision of representation for indigent arrestees at Bail Commissioner

Hearings in Baltimore City would not only be a correct interpretation of the Public

Defender Act and a proper application of the Sixth Amendment and Article 21 of the

Maryland Declaration of Rights, but it also would help ameliorate some indicia of racial

disparity which undermine the criminal justice system locally, statewide, and nationally.

IV. A DECLARATION OF THE RIGHT TO COUNSEL AT BAIL
COMMISSIONER HEARINGS IS NOT CONTINGENT ON THE 
COURT’S FASHIONING OF A REMEDY TO FULLY IMPLEMENT 
THAT RIGHT.

In light of the clear constitutional and statutory mandates that the right to counsel 

should be extended at Bail Commissioner Hearings, as well as the particular impact that 

the implementation of this right will have on African-American and other minority 

communities, this Court should reject the Public Defender’s requests to vacate, defer, or 

otherwise delay a ruling declaring Plaintiffs’ right to counsel at Bail Commissioner 

Hearings. Public Defender Br. 21, 26.

It bears emphasis that the Public Defender “agrees with Plaintiffs that indigent 

defendants have a right to counsel at their initial bail hearings before a Commissioner on 

both constitutional and statutory grounds.” Id. at 1. Yet, notwithstanding the Public 

Defender’s assertion to the contrary, it was not “reversible error” for the Circuit Court to 

issue a declaratory judgment recognizing Plaintiff-Appellees’ right to counsel at Bail 

Commissioner Hearings without addressing in detail “how the newly adjudicated right 

might be practicably implemented.” Id. at 14. The Supreme Court’s seminal opinion in

34



Brown v. Board o f Education, 347 U.S. 483, 495-96 (1954), is but one example of a 

judicial recognition of a right preceding full consideration of an efficacious remedy.

Ultimately, further judicial oversight may prove necessary to guide the parties in 

developing an effective remedy, but this Court should ensure that any such proceedings 

are prompt and provide efficacious relief for this long-standing constitutional and 

statutory violation. As the Public Defender admits, “[ojnce a right and a violation have 

been shown, the scope of a [trial] court’s equitable powers to remedy past wrongs is 

broad.” Public Defender Br. 22 (quoting Swann v. Charlotte-Mecklenburg Bd. OfEduc., 

402 U.S. 1, 15 (1971)). Contrary to the Public Defender’s assertion, the recognition of a 

constitutional right is not contingent on the full shaping of a remedy. Indeed, the Public 

Defender’s reliance on Swann, Milliken, and Gautreaux stands the rulings in those 

landmark housing and school desegregation cases on their heads. See Public Defender Br. 

16, 22 (citing Swann, 402 U.S. at 46, Hills v. Gautreaux, 425 U.S. 284 (1976), and 

Milliken v. Bradley, 433 U.S. 267 (1977)). Far from conditioning the implementation of 

a constitutional right on the crafting of a remedy, these cases reveal the Supreme Court’s 

frustration with protracted “remedy” phases that have the effect of prolonging the 

underlying constitutional violations. See, e.g., Milliken, 433 U.S. at 269 (case “marks the 

culmination of seven years of litigation” which “[f]or almost six years . . . has focused 

exclusively on the appropriate remedy to correct official acts of racial discrimination 

committed by both the Detroit School Board and the State of Michigan”); Swann, 402 

U.S. at 6 (characterizing Brown v. Board o f Education, 347 U.S. 483, as imposing a

35



“mandate to eliminate dual [school] systems and establish unitary systems at once” 

(emphasis added)). These cases do not establish that the articulation of a right should 

yield to the crafting of a remedy; just the opposite, they affirm that a constitutional 

violation must be remedied “as rapidly as possible.” Gautreaux, 425 U.S. at 291. Thus, 

they do not support the Public Defender’s contention that it was error for the Circuit 

Court to articulate a right without fashioning detailed or specific guidelines to implement 

it.

Nor does the Supreme Court’s recent decision in Brown v. Plata, 131 S. Ct. 1910 

(2011), suggest that the constitutional rights at issue in that case -  which involved 

decades-long litigation regarding the overcrowding of, and lack of access to, basic 

medical services in California prisons -  were somehow subject to the ability of the State 

to enforce them. The Public Defender ignores that Brown was decided under the 

auspices of the Prison Litigation Reform Act of 1995, 18 U.S.C. § 3626, which 

specifically required the lower court “to adopt a remedy that [wa]s ‘narrowly tailored’ to 

the constitutional violation.” Brown, 131 S. Ct. at 1944 (quoting 18 U.S.C. § 3626(a)). 

Even in the context of Brown, where a federal statutory mandate required a more tailored 

remedial analysis, the Court ultimately sanctioned a remedy that could have far more 

substantial ramifications than any remedy contemplated in this case.

The fact that a growing number of other states, as well as the federal government, 

guarantee counsel at initial bail hearings, suggests that such budgetary concerns raised by 

the Public Defender can be surmounted. According to a recent study based on 2008-2009

36



survey data, the District of Columbia and at least ten states ensure representation at a 

defendant’s initial bail appearance, irrespective of whether there is a statutory right. See 

Douglas L. Colbert, Prosecution Without Representation, 59 Buff. L. Rev. 333, 389 

(2011) (citing California, Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, 

North Dakota, Vermont, and Wisconsin, in addition to the District of Columbia). Since 

this survey data was collected, both New York and New Hampshire have joined the ranks 

of states that have recognized a right to counsel at hearings where bail is determined. See 

Hurrell-Harring v. State, 930 N.E.2d 217, 223 (N.Y. 2010) (holding that counsel was 

required by Sixth Amendment at arraignment, in part because the accused’s “pretrial 

liberty interests were on that occasion regularly adjudicated with most serious 

consequences”); State v. Furgal, 13 A.3d 272, 281 (N.H. 2010) (holding as a matter of 

procedural due process “that at a minimum the defendant has a right to counsel at [a bail] 

hearing” (citing Rothgery, 554 U.S. at 213)).

Even in states that do not guarantee representation across the board, appointed 

counsel is often made available to indigent defendants at bail hearings in large urban 

jurisdictions with populations and issues similar to those in Baltimore City, including 

Chicago, Atlanta, Seattle, and Philadelphia (and, before the right was recognized state­

wide in Hurrell-Harring, in New York City). See Colbert, supra, 59 Buff. L. Rev. at 391 

n.310, 394 n.325, 402 n.362, 405 n.371, 408 n.381, 409. Moreover, federal court rules 

safeguard the right to counsel “at every stage of the [federal criminal] proceeding from 

initial appearance through appeal[.]” Fed. R. Crim. P. 44(a).

37



Without question, the budgetary concerns raised by the Public Defender are 

important ones. See Public Defender Br. 10-12. Yet “the cost of protecting a 

constitutional right cannot justify its total denial.” Bounds v. Smith, 430 U.S. 817, 825 

(1997); Watson v. Memphis, 373 U.S. 526, 537 (1963) (“[V]indication of conceded 

constitutional rights cannot be made dependent upon the theory that it is less expensive to 

deny than to afford them.”); see also Ruiz v. Estelle, 553 F. Supp. 567, 592 (S.D. Tex. 

1982) (“Constitutional rights are not, of course, confined to those available at modest 

cost. . . . [T]he very nature of the safeguards imposed by the Bill of Rights . . . levy costs 

impossible for an accountant to calculate, but esteemed by us because they are literally 

priceless.”). Accordingly, without foreclosing the possibility of further remedial 

proceedings, this Court should reject the Public Defender’s plea for additional delay in 

affirming Plaintiffs’ right, which even he concedes is “meritorious,” to counsel at Bail 

Commissioner Hearings. Public Defender Br. 14.15

15/ In addition, the Public Defender alleges that the recognition of the right to counsel 
at Bail Commissioner Hearings would have a “perverse effect. . .  on the administration 
of criminal justice in Maryland,” due to the finite resources that would purportedly be 
diverted from the “effective assistance of counsel at later, critical stages.” Public 
Defender Br. 2. Yet the Public Defender fails to consider the potential cost savings 
associated with early representation and corresponding higher incidence of pretrial 
release. See Justice Policy Institute, Baltimore Behind Bars: How to Reduce the 
Baltimore Jail Population, Save Money and Improve Public Safety 17-18 (June 2010) 
(“Moving just 1,000 people from the Detention Center to the Pretrial Release Services 
Program for 30 days, which is the average amount of days until trial, could save 
Maryland $2.92 million per monthly, see also Appellees’ Br. 43 n.21. These savings 
may be pronounced, given the large percentage of criminal cases which are dismissed or 
nolle prosequi'd in Baltimore City.

38



CONCLUSION

For the foregoing reasons, this Court should affirm the Circuit Court’s ruling 

declaring a right to counsel at Bail Commissioner Hearings in Baltimore City under the 

Public Defender Act. Should the Court reach the constitutional issues, it should affirm 

the Circuit Court’s ruling and declare that there is a right to counsel under the Sixth 

Amendment of the U.S. Constitution and Article 21 of the Maryland Declaration of 

Rights.

Dated: September 16, 2011

John Payton
Debo P. Adegbile
Christina Swarns
Johanna B. Steinberg
NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC.
99 Hudson Street, Suite 1600 
New York, NY 10013 
(212) 965-2200

Joshua I. Civin *
NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. 
1444 I Street, NW, 10th floor 
Washington, DC 20005 
(202)682-1300

Respectfully submitted,

Steven F. Barley *
Andrea W. Trento *
Lindsay S. Goldberg * 
HOGAN LOVELLS US LLP
100 International Drive, Suite 2000 
Baltimore, MD 21202 
(410)659-2700

Attorneys for Amicus Curiae 

* Admitted in Maryland

This brief was prepared in 13-point Times New Roman font.

39



CERTIFICATE OF SERVICE

I hereby certify that on this 16th day of September, 2011,1 mailed first class, 

postage prepaid, a copy of the foregoing amicus brief to the following:

Michael Schatzow 
Mitchell Y. Mirviss 
Venable LLP
750 E. Pratt Street, Suite 900 
Baltimore, Maryland 21202 
(410) 244-7400

Douglas L. Colbert 
Maryland School of Law 
500 W. Baltimore Street 
Baltimore, Maryland 21201-1786 
(410) 706-0683

Douglas F. Gansler 
Attorney General of Maryland

William F. Brockman 
Deputy Solicitor General

Julia Doyle Bernhardt 
Assistant Attorney General 
Office of the Attorney General 
311 West Saratoga Street 
Baltimore, Maryland 21201

A. Stephen Hut, Jr.
Aron Goetzl 
Ashley Bashur 
Wilmer Cutler Pickering 

Hale & Dorr LLP 
1875 Pennsylvania Avenue, NW 
Washington, DC 20006

Andrea W. Trento 
HOGAN LOVELLS US LLP



TEXT OF PERTINENT PROVISIONS 
NOT ALREADY PROVIDED TO THE COURT

U.S. Const, amend. XIV

Section 1. All persons bom or naturalized in the United States, and subject to the 
jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 
No State shall make or enforce any law which shall abridge the privileges or immunities 
of citizens of the United States; nor shall any State deprive any person of life, liberty, or 
property, without due process of law; nor deny to any person within its jurisdiction the 
equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to 
their respective numbers, counting the whole number of persons in each State, excluding 
Indians not taxed. But when the right to vote at any election for the choice of electors for 
President and Vice President of the United States, Representatives in Congress, the 
Executive and Judicial officers of a State, or the members of the Legislature thereof, is 
denied to any of the male inhabitants of such State, being twenty-one years of age, and 
citizens of the United States, or in any way abridged, except for participation in rebellion, 
or other crime, the basis of representation therein shall be reduced in the proportion 
which the number of such male citizens shall bear to the whole number of male citizens 
twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of 
President and Vice President, or hold any office, civil or military, under the United 
States, or under any State, who, having previously taken an oath, as a member of 
Congress, or as an officer of the United States, or as a member of any State legislature, 
or as an executive or judicial officer of any State, to support the Constitution of the 
United States, shall have engaged in insurrection or rebellion against the same, or given 
aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each 
House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, 
including debts incurred for payment of pensions and bounties for services in 
suppressing insurrection or rebellion, shall not be questioned. But neither the United 
States nor any State shall assume or pay any debt or obligation incurred in aid of 
insurrection or rebellion against the United States, or any claim for the loss or 
emancipation of any slave; but all such debts, obligations and claims shall be held illegal 
and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the 
provisions of this article.

A1



Md. Const, art. 4, § 41G

(a) (1) There shall be district court commissioners in the number and with the 
qualifications and compensation prescribed by law.

(2) Commissioners in a district shall be appointed by and serve at the pleasure of the 
Administrative Judge of the district, subject to the approval of the Chief Judge of the 
District Court.

(b) Commissioners may exercise power only with respect to and only as prescribed by 
law or rule as to:

(1) Warrants of arrest, or bail or collateral or other terms of pre-trial release pending 
hearing, or incarceration pending hearing; and

(2) Issuance of civil interim peace orders and civil interim protective orders within the 
jurisdiction of the District Court when the Office of the Clerk of the District Court is 
not open.

Md. Const., Deck of Rights, art. 21

That in all criminal prosecutions, every man hath a right to be informed of the accusation 
against him; to have a copy of the Indictment, or charge, in due time (if required) to 
prepare for his defence; to be allowed counsel; to be confronted with the witnesses 
against him; to have process for his witnesses; to examine the witnesses for and against 
him on oath; and to a speedy trial by an impartial jury, without whose unanimous consent 
he ought not to be found guilty.

Md. Const., Deck of Rights, art. 24

That no man ought to be taken or imprisoned or disseized of his freehold, liberties or 
privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, 
liberty or property, but by the judgment of his peers, or by the Law of the land.

A2



18 U.S.C. § 3626(a). Appropriate Remedies with Respect to Prison Conditions.

(a) Requirements for relief. -

(1) Prospective relief.—(A) Prospective relief in any civil action with respect to prison 
conditions shall extend no further than necessary to correct the violation of the Federal 
right of a particular plaintiff or plaintiffs. The court shall not grant or approve any 
prospective relief unless the court finds that such relief is narrowly drawn, extends no 
further than necessary to correct the violation of the Federal right, and is the least 
intrusive means necessary to correct the violation of the Federal right. The court shall 
give substantial weight to any adverse impact on public safety or the operation of a 
criminal justice system caused by the relief.

(B) The court shall not order any prospective relief that requires or permits a 
government official to exceed his or her authority under State or local law or otherwise 
violates State or local law, unless—

(i) Federal law requires such relief to be ordered in violation of State or local law;

(ii) the relief is necessary to correct the violation of a Federal right; and

(iii) no other relief will correct the violation of the Federal right.

(C) Nothing in this section shall be construed to authorize the courts, in exercising their 
remedial powers, to order the construction of prisons or the raising of taxes, or to repeal 
or detract from otherwise applicable limitations on the remedial powers of the courts.
(2) Preliminary injunctive relief.—In any civil action with respect to prison conditions, 
to the extent otherwise authorized by law, the court may enter a temporary restraining 
order or an order for preliminary injunctive relief. Preliminary injunctive relief must be 
narrowly drawn, extend no further than necessary to correct the harm the court finds 
requires preliminary relief, and be the least intrusive means necessary to correct that 
harm. The court shall give substantial weight to any adverse impact on public safety or 
the operation of a criminal justice system caused by the preliminary relief and shall 
respect the principles of comity set out in paragraph (1)(B) in tailoring any preliminary 
relief. Preliminary injunctive relief shall automatically expire on the date that is 90 days 
after its entry, unless the court makes the findings required under subsection (a)(1) for 
the entry of prospective relief and makes the order final before the expiration of the 90- 
day period.

(3) Prisoner release order.—(A) In any civil action with respect to prison conditions, no 
court shall enter a prisoner release order unless—

(i) a court has previously entered an order for less intrusive relief that has failed to

A3



remedy the deprivation of the Federal right sought to be remedied through the 
prisoner release order; and

(ii) the defendant has had a reasonable amount of time to comply with the previous 
court orders.

(B) In any civil action in Federal court with respect to prison conditions, a prisoner 
release order shall be entered only by a three-judge court in accordance with section 
2284 of title 28, if the requirements of subparagraph (E) have been met.

(C) A party seeking a prisoner release order in Federal court shall file with any request 
for such relief, a request for a three-judge court and materials sufficient to demonstrate 
that the requirements of subparagraph (A) have been met.

(D) If the requirements under subparagraph (A) have been met, a Federal judge before 
whom a civil action with respect to prison conditions is pending who believes that a 
prison release order should be considered may sua sponte request the convening of a 
three-judge court to determine whether a prisoner release order should be entered.

(E) The three-judge court shall enter a prisoner release order only if the court finds by 
clear and convincing evidence that—

(i) crowding is the primary cause of the violation of a Federal right; and

(ii) no other relief will remedy the violation of the Federal right.

(F) Any State or local official including a legislator or unit of government whose 
jurisdiction or function includes the appropriation of funds for the construction, 
operation, or maintenance of prison facilities, or the prosecution or custody of persons 
who may be released from, or not admitted to, a prison as a result of a prisoner release 
order shall have standing to oppose the imposition or continuation in effect of such 
relief and to seek termination of such relief, and shall have the right to intervene in any 
proceeding relating to such relief.

Md. Code, Corr. Serv. § 5-404. Policy of State. Centralized Booking Facility.

(a) The Division shall operate a centralized booking facility for Baltimore City.

(b) The centralized booking facility shall include:

(1) pretrial release services;

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(2) District Court Commissioners;

(3) an Office of the State’s Attorney for Baltimore City; and

(4) Baltimore City Police Services.

(c) The centralized booking facility or the Baltimore City Detention Center shall be 
equipped for video bail review.

Md. Code, Crim. Proc. § 5-202. Restrictions on Pretrial Release.

Release o f defendants charged with escaping from correctional facility prohibited

(a) A District Court commissioner may not authorize pretrial release for a defendant 
charged with escaping from a correctional facility or any other place of confinement in 
the State.

Release o f defendants charged as a drug kingpin prohibited

(b) (1) A District Court commissioner may not authorize the pretrial release of a 
defendant charged as a drug kingpin under § 5-613 of the Criminal Law Article.

(2) A judge may authorize the pretrial release of a defendant charged as a drug kingpin 
on suitable bail and on any other conditions that will reasonably ensure that the 
defendant will not flee or pose a danger to another person or the community.

(3) There is a rebuttable presumption that, if released, a defendant charged as a drug 
kingpin will flee and pose a danger to another person or the community.

Release o f defendants charged with crime o f violence prohibited

(c) (1) A District Court commissioner may not authorize the pretrial release of a defendant 
charged with a crime of violence if the defendant has been previously convicted:

(i) in this State of a crime of violence; or

(ii) in any other jurisdiction of a crime that would be a crime of violence if committed 
in this State.

(2)(i) A judge may authorize the pretrial release of a defendant described in paragraph

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(1) of this subsection on:

1. suitable bail;

2. any other conditions that will reasonably ensure that the defendant will not flee 
or pose a danger to another person or the community; or

3. both bail and other conditions described under item 2 of this subparagraph.

(ii) When a defendant described in paragraph (1) of this subsection is presented to the 
court under Maryland Rule 4-216(f), the judge shall order the continued detention of 
the defendant if the judge determines that neither suitable bail nor any condition or 
combination of conditions will reasonably ensure that the defendant will not flee or 
pose a danger to another person or the community before the trial.

(3) There is a rebuttable presumption that a defendant described in paragraph (1) of this 
subsection will flee and pose a danger to another person or the community.

Release o f defendants who committed crimes while released on bail or personal 
recognizance prohibited

(d)(1) A District Court commissioner may not authorize the pretrial release of a 
defendant charged with committing one of the following crimes while the defendant was 
released on bail or personal recognizance for a pending prior charge of committing one of 
the following crimes:

(i) aiding, counseling, or procuring arson in the first degree under § 6-102 of the 
Criminal Law Article;

(ii) arson in the second degree or attempting, aiding, counseling, or procuring arson in 
the second degree under § 6-103 of the Criminal Law Article;

(iii) burglary in the first degree under § 6-202 of the Criminal Law Article;

(iv) burglary in the second degree under § 6-203 of the Criminal Law Article;

(v) burglary in the third degree under § 6-204 of the Criminal Law Article;

(vi) causing abuse to a child under § 3-601 or § 3-602 of the Criminal Law Article;

(vii) a crime that relates to a destructive device under § 4-503 of the Criminal Law 
Article;

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(viii) a crime that relates to a controlled dangerous substance under §§ 5-602 through 
5-609 or § 5-612 or § 5-613 of the Criminal Law Article;

(ix) manslaughter by vehicle or vessel under § 2-209 of the Criminal Law Article; 
and

(x) a crime of violence.

(2) A defendant under this subsection remains ineligible to give bail or be released on 
recognizance on the subsequent charge until all prior charges have finally been 
determined by the courts.

(3) A judge may authorize the pretrial release of a defendant described in paragraph (1) 
of this subsection on suitable bail and on any other conditions that will reasonably 
ensure that the defendant will not flee or pose a danger to another person or the 
community.

(4) There is a rebuttable presumption that a defendant described in paragraph (1) of this 
subsection will flee and pose a danger to another person or the community if released 
before final determination of the prior charge.

Release for defendants charged with protective orders or orders o f protection prohibited

(e)(1) A District Court commissioner may not authorize the pretrial release of a defendant 
charged with violating:

(i) the provisions of a temporary protective order described in § 4-505(a)(2)(i) of the 
Family Law Article or the provisions of a protective order described in § 4-506(d)(l) 
of the Family Law Article that order the defendant to refrain from abusing or 
threatening to abuse a person eligible for relief; or

(ii) the provisions of an order for protection, as defined in § 4-508.1 of the Family 
Law Article, issued by a court of another state or of a Native American tribe that 
order the defendant to refrain from abusing or threatening to abuse a person eligible 
for relief, if the order is enforceable under § 4-508.1 of the Family Law Article.

(2) A judge may allow the pretrial release of a defendant described in paragraph (1) of 
this subsection on:

(i) suitable bail;

(ii) any other conditions that will reasonably ensure that the defendant will not flee or 
pose a danger to another person or the community; or

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(iii) both bail and other conditions described under item (ii) of this paragraph.

(3) When a defendant described in paragraph (1) of this subsection is presented to the 
court under Maryland Rule 4-216(f), the judge shall order the continued detention of 
the defendant if the judge determines that neither suitable bail nor any condition or 
combination of conditions will reasonably ensure that the defendant will not flee or 
pose a danger to another person or the community before the trial.

Release o f defendants previously convicted of certain crimes prohibited

(f)(1) A District Court commissioner may not authorize the pretrial release of a defendant 
charged with one of the following crimes if the defendant has previously been convicted 
of one of the following crimes:

(i) wearing, carrying, or transporting a handgun under § 4-203 of the Criminal Law 
Article;

(ii) use of a handgun or an antique firearm in commission of a crime under § 4-204 of 
the Criminal Law Article;

(iii) violating prohibitions relating to assault pistols under § 4-303 of the Criminal 
Law Article;

(iv) use of a machine gun in a crime of violence under § 4-404 of the Criminal Law 
Article;

(v) use of a machine gun for an aggressive purpose under § 4-405 of the Criminal 
Law Article;

(vi) use of a weapon as a separate crime under § 5-621 of the Criminal Law Article;

(vii) possession of a regulated firearm under § 5-133 of the Public Safety Article;

(viii) transporting a regulated firearm for unlawful sale or trafficking under § 5-140 of 
the Public Safety Article; or

(ix) possession of a rifle or shotgun by a person with a mental disorder under § 5-205 
of the Public Safety Article.

(2)(i) A judge may authorize the pretrial release of a defendant described in paragraph
(1) of this subsection on:

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1. suitable bail;

2. any other conditions that will reasonably ensure that the defendant will not flee 
or pose a danger to another person or the community; or

3. both bail and other conditions described under item 2 of this subparagraph.

(ii) When a defendant described in paragraph (1) of this subsection is presented to the 
court under Maryland Rule 4-216(f), the judge shall order the continued detention of 
the defendant if the judge determines that neither suitable bail nor any condition or 
combination of conditions will reasonably ensure that the defendant will not flee or 
pose a danger to another person or the community before the trial.

(3) There is a rebuttable presumption that a defendant described in paragraph (1) of this 
subsection will flee and pose a danger to another person or the community.

Defendants registered under Title 11, Subtitle 7 of this article

(g) (1) A District Court commissioner may not authorize the pretrial release of a 
defendant who is registered under Title 11, Subtitle 7 of this article.

(2) (i) A judge may authorize the pretrial release of a defendant described in paragraph 
(1) of this subsection on:

1. suitable bail;

2. any other conditions that will reasonably ensure that the defendant will not flee 
or pose a danger to another person or the community; or

3. both bail and other conditions described under item 2 of this subparagraph.

(ii) When a defendant described in paragraph (1) of this subsection is presented to the 
court under Maryland Rule 4-216(f), the judge shall order the continued detention of 
the defendant if the judge determines that neither suitable bail nor any condition or 
combination of conditions will reasonably ensure that the defendant will not flee or 
pose a danger to another person or the community before the trial.

(3) There is a rebuttable presumption that a defendant described in paragraph (1) of this 
subsection will flee and pose a danger to another person or the community.

Global positioning satellite tracking system pilot program in Prince George’s County

(h) (1) This subsection applies only in Prince George’s County.

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(2) The county shall implement a global positioning satellite tracking system pilot 
program as a condition of pretrial release of a defendant described in subsection (e) of 
this section.

(3) (i) The court may order that, as a condition of bail, the defendant be:

1. supervised by means of active electronic monitoring; and

2. except as provided in subparagraph (iii) of this paragraph, responsible for paying 
the fee for active electronic monitoring established by the county.

(ii) Before issuing an order under subparagraph (i)l of this paragraph, the court may 
consider the preferences of the victim and the parties.

(iii) If the court determines that a defendant cannot afford to pay the fee established in 
subparagraph (i)2 of this paragraph, the court may exempt the defendant wholly or 
partly from the fee.

Global positioning satellite tracking system pilot program in Washington County

(i)(l) This subsection applies only in Washington County.

(2) The county shall implement a global positioning satellite tracking system pilot 
program as a condition of pretrial release of a defendant described in subsection (e) of 
this section.

(3) (i) The court may order that, as a condition of bail, the defendant be:

1. supervised by means of active electronic monitoring; and

2. except as provided in subparagraph (ii) of this paragraph, responsible for paying 
the fee for active electronic monitoring established by the county.

(ii) If the court determines that a defendant cannot afford to pay the fee established in 
subparagraph (i)2 of this paragraph, the court may exempt the defendant wholly or 
partly from the fee.

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Md. Code, Crim. Proc. § 10-103.1. Expungement Upon Release Without Charges.

Police records, including photographs and fingerprints

(a) For arrests or confinements occurring on or after October 1, 2007, a person who is 
arrested or confined by a law enforcement unit and then is released without being charged 
with the commission of a crime is entitled to expungement of all police records, including 
photographs and fingerprints, relating to the matter.
Duties o f law enforcement unit

(b) Within 60 days after release of a person entitled to expungement of a police record 
under subsection (a) of this section, the law enforcement unit shall:

(1) search diligently for and expunge each police record about the arrest or confinement 
of the person; and

(2) send a notice of expungement containing all relevant facts about the expungement 
and underlying arrest or confinement to:

(i) the Central Repository;

(ii) each booking facility or law enforcement unit that the law enforcement unit 
believes may have a police record about the arrest or confinement; and

(iii) the person entitled to expungement.

Duties o f Central Repository, booking facility, and other law enforcement units

(c) Within 60 days after receipt of the notice, the Central Repository, a booking facility, 
and any other law enforcement unit shall:

(1) search diligently for and expunge each police record about the arrest or confinement 
of the person; and

(2) advise in writing the person entitled to expungement of compliance with the order.

Expungement by obliteration

(d) ( 1) A police record expunged under this section may not be expunged by obliteration 
until 3 years after the date of expungement.

(2) During the 3-year period described in paragraph (1) of this subsection, the records 
shall be removed to a separate secure area to which persons who do not have a

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legitimate reason for access are denied access.

(3) For purposes of this subsection, a legitimate reason for accessing the records 
includes using the records for purposes of proceedings relating to the arrest.

Failure o f law enforcement unit, booking facility, or Central Repository to expunge 
record

(e) If a law enforcement unit, a booking facility, or the Central Repository fails to 
expunge a police record as required under subsection (b) or (c) of this section, the person 
entitled to expungement may:

(1) seek redress by means of any appropriate legal remedy; and

(2) recover court costs.

Fees or costs related to expungement

(f) A person who is entitled to expungement under this section may not be required to pay 
any fee or costs in connection with the expungement.

Md. Code, Crim. Proc. § 16-201. Policy of State.

It is the policy of the State to:

(1) provide for the realization of the constitutional guarantees of counsel in the 
representation of indigent individuals, including related necessary services and facilities, 
in criminal and juvenile proceedings in the State;

(2) assure the effective assistance and continuity of counsel to indigent accused 
individuals taken into custody and indigent individuals in criminal and juvenile 
proceedings before the courts of the State; and

(3) authorize the Office of the Public Defender to administer and assure enforcement of 
this title.

Fed. R. Crim. P. 44. Right to and Appointment of Counsel.

(a) Right to Appointed Counsel. A defendant who is unable to obtain counsel is entitled

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to have counsel appointed to represent the defendant at every stage of the proceeding 
from initial appearance through appeal, unless the defendant waives this right.

(b) Appointment Procedure. Federal law and local court rules govern the procedure for 
implementing the right to counsel.

(c) Inquiry Into Joint Representation.

(1) Joint Representation. Joint representation occurs when:

(A) two or more defendants have been charged jointly under Rule 8(b) or have been 
joined for trial under Rule 13; and

(B) the defendants are represented by the same counsel, or counsel who are 
associated in law practice.

(2) Court’s Responsibilities in Cases of Joint Representation. The court must promptly 
inquire about the propriety of joint representation and must personally advise each 
defendant of the right to the effective assistance of counsel, including separate 
representation. Unless there is good cause to believe that no conflict of interest is likely 
to arise, the court must take appropriate measures to protect each defendant’s right to 
counsel.

Md. Rule 4-231. Presence of Defendant.

(a) When Presence Required. A defendant shall be present at all times when required by 
the court. A corporation may be present by counsel.

(b) Right to be Present-Exceptions. A defendant is entitled to be physically present in 
person at a preliminary hearing and every stage of the trial, except (1) at a conference or 
argument on a question of law and (2) when a nolle prosequi or stet is entered pursuant to 
Rules 4-247 and 4-248.

(c) Waiver of Right to be Present. The right to be present under section (b) of this Rule is 
waived by a defendant:

(1) who is voluntarily absent after the proceeding has commenced, whether or not 
informed by the court of the right to remain; or

(2) who engages in conduct that justifies exclusion from the courtroom; or

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(3) who, personally or through counsel, agrees to or acquiesces in being absent.

(d) Video Conferencing in District Court. In the District Court, if the Chief Judge of the 
District Court has approved the use of video conferencing in the county, a judicial officer 
may conduct an initial appearance under Rule 4-213 (a) or a review of the 
commissioner's pretrial release determination under Rule 4-216 (f) with the defendant 
and the judicial officer at different locations, provided that:

(1) the video conferencing procedure and technology are approved by the Chief Judge 
of the District Court for use in the county;

(2) immediately after the proceeding, all documents that are not a part of the District 
Court file and that would be a part of the file if the proceeding had been conducted 
face-to-face shall be electronically transmitted or hand-delivered to the District Court; 
and

(3) if the initial appearance under Rule 4-213 is conducted by video conferencing, the 
review under Rule 4-216 (f) shall not be conducted by video conferencing.

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