Defendants in Maryland deserve an attorney before first facing the possibility of being jailed until their court date, according to a lawsuit argued Friday in front of Maryland’s highest court.
The lawsuit could have sweeping effects for a state judicial system in which arrested individuals generally do not have legal representation until days after their initial bail review, an informal meeting with a court commissioner that takes place within 24 hours of the arrest.
The lawsuit, filed in 2006 by the University of Maryland and lawyers from the firm Venable LLP, alleges that courts have already interpreted the law — though it has not been enforced — to ensure citizens’ right to an attorney at the first bail hearing. The commissioner is not required to have a law degree but decides whether to jail or free the defendant and how expensive to set the bail.
“It’s high time we make this law a reality and not just a law on the books,” said Michael Schatzow, a Venable lawyer who argued the case at the Maryland Court of Appeals in Annapolis.
The case stemmed from several instances at the Baltimore Central Booking and Intake Facility in which poor minorities did not have a public defender at the bail hearing with the commissioner. University of Maryland law students several years ago interviewed the defendants, some of whom lost their jobs because they were jailed.
If the commissioner sets a bail, a judge reviews it a few days later, but Schatzow cited studies that show it costs the state more money to incarcerate people than if an attorney were allowed at the first bail hearing.
Judge Joseph F. Murphy Jr. disagreed.
“The idea that we can be sure that counsel will be effective in getting more people released is questionable,” Murphy said.
Assistant Attorney General Kendra Ausby argued that the law extends only as far as the bail review hearing, but Chief Judge Robert Bell thought the first hearing, with the commissioner, was more significant. He likened the bail review to an appellant court and pointed out that in district court, parties still are entitled to an attorney.
“The bail review is simply the review of a decision already made,” Bell said. “The original decision is the critical one.”
