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Second time’s the charm: Court rules that arrestees have right to lawyer at initial bail determinations

September 25, 2013:  You’ve been arrested on a Friday night and can’t afford bail. As the cell door closes behind you, your thoughts are whirring. Who’s going to take care of your kids? Will you still have a job? The restaurant might fire you if you don’t show up tomorrow. Will the other inmates hurt you? Will you catch tuberculosis or worse in such close quarters with so many people?  What could you have said to the District Court Commissioner to keep you out of jail until the trial? Your bail review hearing with a public defender won’t be until Monday. It would have been helpful to have a lawyer right away.
The Public Justice Center voiced concerns like these in two amicus briefs which influenced the Maryland Court of Appeals’ September 25th decision in DeWolfe v. Richmond. The Court held that under the Maryland constitution, a person who is arrested and cannot afford a lawyer has a right to be represented by a court-appointed lawyer at his or her initial bail determination before a District Court Commissioner. The Court’s opinion references the PJC’s briefs as well as others:
"As numerous briefs to this Court pointed out, the failure of a Commissioner to consider all the facts relevant to a bail determination can have devastating effects on the arrested individuals. Not only do the arrested individuals face health and safety risks posed by prison stays, but the arrested individuals may be functionally illiterate and unable to read materials related to the charges. Additionally, they may be employed in low wage jobs which could be easily lost because of incarceration…."
Four former Murnaghan Appellate Advocacy Fellows at the Public Justice Center contributed to these briefs:  Greg Care and Matt Hill in 2008 and Jessie Weber and Tom Davies in 2011.
The September decision is the second time the Court of Appeals has ruled on the right to an attorney at initial bail determinations in DeWolfe v. Richmond. On January 4, 2012, the Court affirmed this right under Maryland’s Public Defender Act. The ruling was not implemented, however, as the Maryland legislature voted to amend the Public Defender Act to remove the right to counsel at commissioner proceedings from the Act. The ruling did however spur other legislative reforms that will help keep people who need not sit in jail before trial from having to do so. The Court heard the case again in January 2013, when plaintiffs successfully argued for the right under the Maryland constitution. The Court’s decision is a final decision and a great victory that will further reduce the number of people living in poverty who will languish in jail unnecessarily while awaiting  trial.

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