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Insecure justice in Maryland

How a bill to deprive low-income people of representation, right when they need it most, almost became law this year

By Doug Colbert

6:00 AM EDT, April 15, 2013

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While the nation celebrated the 50th anniversary of a poor person's constitutional right to a lawyer, Maryland legislators' support for House Bill 153 in the recently concluded General Assembly session threatened to return to the days when an accused person went without a public defender's representation.

Without any fanfare or media attention, HB 153 quietly made its way through the House of Delegates. Then, it took just one proponent to convince the Senate Judicial Proceedings Committee to approve a bill that prohibited a public defender from continuing to represent clients beyond a bail review hearing, upon the client's release from jail. The bill allowed defenders to represent detainees who remained incarcerated.

What a choice for a defendant: Either instruct your lawyer to fight for your personal liberty — knowing you will lose your defender the moment you hit the street — or stay in jail and keep your lawyer during the critical period for investigation, finding witnesses, preparing a defense and evaluating the charges.

The bill effectively limited the successful public defender to quick "lawyer for a day" representation before a reviewing judge. Thereafter, defendants would be left to fend for themselves until they traveled to the public defender's office, reapplied, and an independent supervisory review confirmed eligibility. Many working and poor people, who are disproportionately African-American and Latino, find this reapplication process a daunting task.

Defenders and court observers witness daily the many defendants who already forfeit their right to counsel because they fail to arrive within the required 10 days before their scheduled court appearance. Many choose instead to go to work or school, while others lack transportation.

Why would legislators aggressively pursue a bill that leaves low-income defendants without a lawyer for days or weeks? One legislator, the only witness to testify in the House hearings, charged fraud, stating that public defenders are representing ineligible people who could afford a private lawyer. The state's public defender, Paul DeWolfe, rejected this unsubstantiated notion. Mr. DeWolfe explained that defenders do a complete eligibility review, and he asked for specific examples of misrepresentation; proponents could cite none.

Defenders, Mr. DeWolfe concluded, already have too many clients to be looking for ineligible defendants too.

So what else could have driven HB 153? While one hopes that it was not the oft-heard grumbling by a small group of private lawyers that public defenders are taking potential clients away from the private bar, experience in the ways of Annapolis teaches otherwise. Unrepresented working defendants facing criminal charges are desperate for representation. If they lose their public defender, many will use their limited wages to pay for a private lawyer's advocacy. Seen from this perspective, HB 153 sought to sacrifice the low-income person's right to counsel to benefit the professional interests of a few members of the private bar.

Leading proponents of the legislation also are private criminal defense attorneys. Good public policy takes a direct hit when individual legislators introduce an extreme measure where they or colleagues stand to benefit financially.

HB 153 represented an unconstitutional and improper use of legislative power. When a defendant first appears before a District Court commissioner, the constitutional right to counsel attaches, meaning the state must provide a public defender for poor people who cannot afford counsel.

That argument gave some Senators pause. They also noted that proponents of HB 153 included no evidence to show a problem existed to justify the added cost of recertification. Proponents never explained why a defendant freed on recognizance or bail should have to jump through additional hoops that would delay regaining his or her assigned defender.

Indeed, when state law deprives a defendant of a lawyer by exercising raw legislative power, it leaves criminal convictions subject to reversal on appeal.

Yet, until an 11th hour amendment, a Senate majority seemed ready to follow leadership's support for the bill. The amendment made possible public defender review of eligibility at the bail hearing to allow for continued representation. In the final hours of the 2013 session, members of the House of Delegates remained unwilling to accept the Senate's compromise. That proved too much for a conference committee to overcome, and the bill died.

Given Maryland's checkered right-to-counsel history, this year's technical setback will likely not deter legislators from renewing their effort to reduce an accused poor person's right to counsel.

Consider that Maryland's indigent defendants waited 170 years before being guaranteed counsel at a felony trial — and another decade before receiving a lawyer's assistance for misdemeanors.

On the other hand, following the landmark 1963 Gideon ruling, Maryland's 1970 legislature was one of the first to create a statewide public defender and to embrace the Supreme Court's view that "lawyers are a necessity, not a luxury" at all stages of a criminal proceeding.

In recent years, the legislative pendulum has swung against guaranteeing representation. In 2000, the House rejected a bill that the Senate had overwhelmingly approved to guarantee counsel at the bail stage. Last year's legislature rejected a unanimous Court of Appeals ruling that recognized the necessity of a lawyer at a defendant's first appearance to protect individual liberty. At the same time, legislators affirmed counsel's advocacy beginning at the second appearance bail review hearings through trial.

This year, the "lawyer in and out" philosophy embodied by HB 153 came this close to joining the strand of legislature failure to protect poor people's freedom and fair trial rights. Rather than looking for ways to strip poor people of a right to counsel and the chance to gain a level playing field, legislators should reject all such efforts in the future as unworthy of justice in Maryland.

Doug Colbert teaches at the University of Maryland School of Law. His email is dcolbert@law.umaryland.edu.

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