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Counsel at initial hearings: a matter of simple fairness

I didn't need to go to law school to learn that a person charged with a crime is innocent until proven guilty and entitled to the assistance of a lawyer. I knew it in my former life as a sportswriter, and I probably had a grasp of it back in elementary school. Heck, it's America 101.

But it wasn't until last fall, during the first semester of my second year at the University of Maryland Francis King Carey School of Law, that I learned someone accused of a crime in Maryland could spend 30 days in jail before a lawyer advocated for his or her freedom before trial.

This took a while to register: innocent until proven guilty … yet incarcerated for weeks before benefiting from the assistance of counsel? Really?

Yes, really. No counsel is provided at the first commissioner hearing, at which a defendant's pretrial liberty or bail, if any, is determined. In most jurisdictions in the state, counsel is also not present at the next bail review hearing before a district court judge, resulting in defendants remaining in jail for 30 days before seeing a lawyer in court. That means indigent defendants, many of whom are charged with nonviolent misdemeanors, appear by themselves with their liberty on the line.

However, I also learned last semester that the process for righting this wrong was well under way. A class action lawsuit aiming to secure for indigent defendants the right to counsel at initial hearings had made its way to Maryland's highest court.

On Jan. 4, there was a breakthrough. The Maryland Court of Appeals ruled, in DeWolfe v. Richmond, that the statutory right to counsel promised accused criminal defendants a lawyer's representation at initial bail hearings. The decision was unanimous.

Less than three weeks later, however, that landmark decision is in jeopardy. Members of the House of Delegates and the Maryland Senate proposed emergency bills that would nullify the ruling’s effect by denying representation at the first hearing. The legislation is short-sighted and a mistake.

The argument in favor of the legislation is that Maryland's Office of the Public Defender already is stretched extremely thin, so it is not realistic to think it can handle commissioner hearings as well. In addition, there is concern about where Maryland would get the money to add the resources necessary to comply with the court's ruling.

While at first glance the cost of implementing the court's ruling might seem prohibitive, ensuring the representation of counsel at initial hearings likely would save the state money long term. With the assistance of a lawyer, defendants facing nonviolent charges are far more likely to be released on recognizance or have their bail set at an affordable level, saving taxpayers the costly incarceration of many individuals, some of whom will see their cases thrown out before trial.

Yet even if the Richmond ruling would not save our state a cent, there is a far more important reason not to circumvent it with quickly slapped-together legislation: Providing counsel for indigent defendants at the initial hearing is simply the right thing to do.

During the fall semester, I participated in Maryland's Access to Justice Clinic with seven other law students. We observed bail review hearings in Baltimore County and City and watched unrepresented defendants flounder. Some chose not to speak. Others said too much. All who didn't have a lawyer could have used one.

This became clear during our work as student-attorneys. At bail re-review hearings, we represented 42 clients and regained pretrial liberty for 31 of them. I would love to give sole credit to the overwhelming power of our collective advocacy. At times, however, we simply were able to garner our clients' trust and then ask the right questions — or make the phone calls — that yielded information pertinent to the bail decision. Our efforts showed just how important it is to have representation in the pretrial criminal justice system. It meant, for some, going home to families and jobs, and others to treatment programs, instead of sitting in jail (at taxpayers' expense) until trial. In other words, it meant everything.

Maryland's highest court agrees — unanimously. So saying "it's too expensive" or "too complicated right now" isn't good enough. Fairness cannot come with a price tag. Justice cannot be foiled by logistics. Legal rights cannot be compromised. Indigent defendants deserve representation at initial hearings.

Investing in public defenders for the accused? Heck, that's America 101.

Jake Schaller is a second-year law student at the University of Maryland Francis King Carey School of Law. His email is jakeschaller@umaryland.edu.

Copyright © 2015, The Baltimore Sun
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