By Robert W. Jones, Esq.
It is common knowledge that criminal defendants have the right to counsel, even if they can’t afford a lawyer. Everyone who has ever been arrested, knows someone who has, or seen an arrest on TV knows that the court appoints a lawyer for indigent defendants to guide them through the complex and highly technical legal process. But if an indigent criminal defendant is entitled to the assistance of counsel during trial, why are they not entitled to that assistance at their bail hearing – the earliest stage in the judicial process where their freedom is in the hands of the court?
With its decision in DeWolfe v. Richmond, Maryland’s Court of Appeals answered that question: They are entitled to representation even at this early stage of the criminal proceedings. Easy enough to say, but implementation is an entirely different affair. The law requires that bail hearings occur within 24 hours of an arrest. To comply with DeWolfe, a lawyer would need to be present at every District Court commissioner’s station all day, every day. There are 34 stations spread throughout the 12 districts of Maryland. Each station would need an attorney appointed from 8 a.m. until midnight. That’s exactly what Maryland set up with the District Court of Maryland Appointed Attorneys Program.
I was one of the first lawyers to be part of this program. I showed up to the Catonsville District Courthouse in the morning of July 1st not knowing what to expect. Although the program provided some training videos, it did not provide the exact protocol for the day. The Appointed Attorneys Program website had the protocols for some districts, but not for Baltimore County. Nobody else knew exactly what to expect either. While I, at least, was coming into this experience fresh and new, every commissioner I spoke with was having some difficulty adapting to the sudden, massive change to their operations. I learned that their workload has slowed to a crawl. Before DeWolfe, they could crank out one or two dozen bail hearings a day. Now, six bail hearings per eight-hour shift is not uncommon.
The way commissioners handle the changes in conducting the hearings differs from person to person. Some direct all their questions to the defendant and allow me an opportunity to speak afterwards. Some direct all questions to me. I’ve learned to prepare my clients for all of the questions – this way I have them for my records if I’m asked, and my client has gone through a “trial run” if they’re asked. We’re all still learning the system.
Part of what frustrates everyone so much, I think, is the time it takes to interview a client and the logistics of maintaining attorney-client privilege. It’s not like I can have the defendants brought to my office. In Catonsville District Court, I have to interview defendants outside the holding cell with guards and prisoners all around. Essex, at least, provides a small standing room to speak with some degree of privacy. Many defendants are confused about the process. In addition to explaining the charges and asking questions relevant to bail, I have to let them know the bail review isn’t a criminal trial and their guilt or innocence is not being decided.
It’s unfortunate that the appointed attorneys do not have the opportunity to speak to the defendants until after their decision to accept or waive their right to counsel. I believe more defendants would choose to accept representation if I could explain to them the benefits of having a lawyer at this stage of the criminal proceedings. I know that the commissioners explain the benefits of an attorney to every defendant, but many of them seem to waive their right in order to speed the process up or because they think a lawyer can’t help. Most defendants waive their right to an attorney at the initial bail hearing. In an eight hour shift, I’ve yet to represent more than four people.
I was admitted to the Maryland bar last December and the Appointed Attorneys Program has given me an excellent opportunity to learn to navigate the judicial system and gain worthwhile experience. Interviewing clients, arguing my defendants’ points of view, memorizing relevant case and statutory law – these are skills that require actual experience to master.
It’s only been a few days and I’m optimistic about the Appointed Attorneys Program, even with its initial disorder. I strongly believe everybody has the right to an attorney, even if – especially if – they can’t afford one. I hope that, as the program’s reputation grows, more and more criminal defendants will choose to let an attorney speak for them at their initial appearance. Even if that is not the case, I am content to know that criminal defendants are finally being afforded their right to counsel literally from day one. I’m proud to be part of this program in its dawn.