In a ruling that could have a major impact on the Maryland Public Defender’s Office, a state judge in Baltimore found that indigent criminal defendants have a right to counsel at their initial bail hearings.
Judge Alfred Nance of the Circuit Court for Baltimore City issued his ruling after a class of 11 indigent defendants sued the District Court of Maryland in 2006, alleging that their Sixth Amendment rights had been violated because despite requesting to have an attorney present at their initial bail hearing, the hearing was held anyway.
Nance’s 13-page opinion, which was signed on Sept. 30 but wasn’t made public until today, determined that a recent U.S. Supreme Court opinion granted criminal defendants a right to counsel at an earlier stage in the criminal prosecution process. In Rothgery v. Gillespie County, Texas, which was decided in 2008, after the Maryland case was filed, the Supreme Court found that a criminal defendant’s initial appearance before a magistrate, where the defendant’s liberty is subject to restriction, marks the initiation of adversarial judicial proceedings and therefore triggers the Sixth Amendment right to counsel.
Nance’s opinion said that the initial bail hearings in Maryland, which are held before a commissioner, are similar enough to the hearings at issue in the Supreme Court case so as to trigger the same Sixth Amendment protections.
“Ultimately, the initial bail hearing determines whether a defendant will be allowed to retain, or forced to surrender, his liberty during the pendency of his criminal case,” Nance writes in his opinion. He also notes that initial bail hearings are not held in a courtroom and are not transcribed or recorded, making it “impossible” to review what the commissioner or arrestee said to determine the basis of the commissioner’s ruling.
Nance’s opinion marks a win for Venable and the University of Maryland Law School Access to Justice and Bail Clinic, which collaborated on the case. But because the case has already reached the Maryland Court of Appeals, the state’s highest appeals court, Michael Schatzow, a Venable partner who argued the case before Nance, said he wouldn’t be surprised if the Maryland Attorney General’s Office decided to appeal it again.
The class initially appealed the case after Nance granted the district court summary judgment on all counts. The appeals court vacated that decision and sent the case back to the trial level, ordering the plaintiffs to add the Public Defender’s Office as a defendant.
“But in the meantime, a prudent use of time would be for the defendants to figure out how to implement Judge Nance’s most recent ruling in the event that any appeal they file doesn’t work out in their favor,” Schatzow said.
William Brockman, Maryland’s deputy solicitor general who represents the district court, declined to comment. A. Stephen Hut Jr., a partner at Wilmer Cutler Pickering Hale and Dorr, who is representing the Public Defender’s Office pro bono, was not immediately available for comment.