Dewolfe v. Richmond

• Decision Date: 04 January 2012
• Docket Number: No. 34,Sept. Term, 2011.,34
• Citation: 76 A.3d 962,434 Md. 403
• Parties: Paul DeWOLFE, Jr., et al. v. Quinton RICHMOND, et al.
• Court: Maryland Court of Appeals

434 Md. 403

76 A.3d 962

Paul DeWOLFE, Jr., et al.

v.Quinton RICHMOND, et al.

No. 34, Sept. Term, 2011.

Court of Appeals of Maryland.

Jan. 4, 2012.

Julia Doyle Bernhardt, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, and William F. Brockman, Deputy Solicitor General, Baltimore, MD), on brief, for Appellants/Cross–Appellees.

A. Stephen Hut, Jr. (Aron B. Goetzl, and Ashley Bashur of Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC), on brief, for Appellants/Cross–Appellees.

Michael Schatzow (Mitchell Y. Mirviss of Venable LLP, Baltimore, MD; Douglas L. Colbert of Maryland School of Law Access to Justice Clinic, Baltimore, MD), on brief, for Appellees/Cross–Appellants.

Jessica Weber, Thomas Davies, Francis D. Murnaghan, Jr. Appellate Advocacy Fellow, Baltimore, MD, brief of Public Justice Center, International Cure, Alternative Directions, Inc., and Justice Policy Institute as Amici Curiae for Appellants.

Daniel P. Westman, Morrison & Foerster LLP, McLean, VA, brief of Society of American Law Teachers as Amici Curiae for Appellees.

Howard Schiffman, Andrew P.C. Wright, Schulte Roth & Zabel LLP, Washington, DC, Daniel L. Greenberg, Ronald B. Risdon, Brian C. Tong, Schulte Roth & Zabel LLP, New York, NY, brief of the Leadership Conference on Civil and Human Rights, Amicus Curiae, in Support of Appellees and Affirmance of the Order of the Circuit Court.

Christina M. Gattuso, Kilpatrick Townsend and Stockton LLP, Washington, DC, Gia L. Cincone, Kilpatrick Townsend and Stockton LLP, San Francisco, CA, brief of Amici Curiae National Association of Criminal Defense Lawyers, the American Civil Liberties Union, the American Civil Liberties Union of Maryland, the Brennan Center for Justice at New York University Law School, the Center for Constitutional Rights, and the National Legal Aid and Defender Association in Support of Appellees.

A.J. Bellido De Luna, Michael Pinard, Baltimore, MD, brief of Amici Curiae Faculty Members of the University of Baltimore School of Law and the University of Maryland Francis King Carey School of Law in Support of Appellees.

NAACP Legal Defense and Educational Fund, Inc., John Payton, Debo P. Adegbile, Christina Swarns, Johanna B. Steinberg, New York, NY, Joshua I. Civin, Washington DC, Hogan Lovells US LLP, Steven F. Barley, Andrea W. Trento, Lindsay S. Goldberg, Baltimore, MD, brief of Amicus Curiae NACCP Legal Defense and Educational Fund, Inc. in Support of Appellees.

Baruch Weiss, Dirk C. Phillips, Jeremy W. Hockberg, Rubina S. Madni, Daniel M. Friedman, Ingrid A. Epperly, Arnold & Porter LLP, Washington, DC, William T. Robinson III, American Bar Association, brief of the American Bar Association as Amicus Curiae in Support of Appellees.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA and JOHN C. ELDRIDGE, (Retired, specially assigned), JJ.

BARBERA, J.

When an individual is arrested, he or she must go before a judicial officer for an initial appearance, pursuant to Maryland Rule 4–213(a). The judicial officer, who in all instances relevant to the matter sub judice is a District Court Commissioner (“Commissioner”) ¹, has a number of duties at the initial appearance, among which is to comply with the pretrial release provisions of Maryland Rule 4–216. That rule requires the Commissioner to determine whether there was probable cause for the arrest and, if so, whether the defendant should be released on his or her own recognizance, on bail, or not at all.

We are asked in this appeal whether an indigent defendant is entitled to appointed counsel when a Commissioner makes the Rule 4–216 bail determination. We hold, for the reasons that follow, that an indigent defendant is entitled to such representation, under Maryland's Public Defender statute, Maryland Code (2001, 2008 Repl.Vol.), §§ 16–101 through 16–403 of the Criminal Procedure Article (hereafter “Public Defender Act” or “Act”). ²

I.

This case comes to us from the decision of the Circuit Court for Baltimore City granting summary judgment for the Plaintiffs,³ entering a declaratory judgment, and denying the Plaintiffs' request for an injunction to enforce the rights declared. The Plaintiffs sought a declaration that they and the class of indigent persons they represent ⁴ have the right, under the federal and state constitutions and the Public Defender Act, to be represented by the Public Defender at bail hearings, which are conducted as part of the initial appearance before Commissioners at the Baltimore City Booking and Intake Center (“Central Booking Jail”). To assist in understanding the parties' respective arguments and the issues we must decide, we describe at the outset what occurs at the initial appearance before the Commissioner.

The duties of the Commissioner at the initial appearance are governed by Maryland Code (1974, 2006 Rep. Vol., 2010 Supp.), § 2–607(c) of the Courts and Judicial Proceedings Article (“C.J.”) and Maryland Rules 4–213(a) and 4–216. The Commissioner must inform the defendant of the charge and allowable penalties; provide the defendant a copy of the statement of charges, if the defendant does not have one and one is available; advise the defendant of the right to counsel; advise the defendant, when it is relevant, of the right to a preliminary hearing; and comply with the pretrial release provisions of Rule 4–216. Md. Rule 4–213(a); seeC.J. § 2–607(c)(1)–(2). The pretrial release provisions of Rule 4–216 require the Commissioner, in those instances when the defendant has been arrested without a warrant, to determine whether the arrest was supported by probable cause. If the arrest was not supported by probable cause, then the Commissioner “shall release the defendant on personal recognizance, with no other conditions of release.” Md. Rule 4–216(a).

Of particular relevance to this case is what follows if the Commissioner determines that the arrest was supported by probable cause. In that instance, the Commissioner must comply with the provisions of Rule 4–216(d). That subsection of the Rule requires the Commissioner to determine whether the defendant is eligible to be, and should be, released on his or her recognizance or whether the case requires bail, pending trial. In that process, the Commissioner considers a number of factors that are set forth in Rule 4–216(d).⁵ If the Commissioner “determines that the defendant should be released other than on personal recognizance without any additional conditions imposed,” then the Commissioner “shall impose on the defendant the least onerous condition or combination of conditions of release set out in section (e) ... that will reasonably”: “ensure the appearance of the defendant as required”; “protect the safety of the alleged victim”; and “ ensure that the defendant will not pose a danger to another person or to the community.” Rule 4–216(d)(3).

Rule 4–216(d)(4) further requires the Commissioner to “advise the defendant in writing or on the record of the conditions of release imposed and of the consequences of a violation of any condition.” In addition, “[w]hen bail is required, the judicial officer shall state in writing or on the record the amount and any terms of the bail.” Id.

The initial appearance before a Commissioner in Baltimore City is not conducted in a courtroom. According to the Plaintiffs, the initial appearance is not open to the public and is not recorded.⁶ The Plaintiffs report that the event takes place in a “tiny narrow booth” at Central Booking Jail. A plexiglass wall separates the arrestee and the Commissioner, and the two communicate through a speaker system. According to the Plaintiffs, “public defenders never are present” at the initial appearance, notwithstanding that many arrestees are indigent. The Plaintiffs report:

Theoretically, private lawyers may participate, but, in practice, security concerns, lack of personnel for escorts, cramped quarters, and procedural issues at Central Booking make private representation rare. In contrast, by Rule and by practice, the commissioner may receive ex parte recommendations for bail from the State's Attorney, without any public record of such contact. The State's Attorney staffs a 24–hour war room in Central Booking for this purpose.

The Plaintiffs further report that, because the initial hearings are “not open to the public ... [and are] not transcribed or recorded,” “it [is] impossible to review what a Commissioner or arrestee said or to understand the basis for the ruling.” Moreover, Commissioners “are not required to give Miranda warnings and thus do not.” When commissioners “ask about residence, employment, family, community ties, prior record, and, frequently, the charges [,] ... [a]rrestees are expected to answer. Most do, not knowing that the information may be recorded in a closed envelope for use against them by judges and prosecutors. They are not informed whether a prosecutor has ex parte contact with a commissioner.”

Whenever the Commissioner does not release a defendant following the initial appearance, the defendant is presented to a District Court judge for a bail review hearing “immediately ... if the court is then in session, or if not, at the next session of the court.” Md. Rule 4–216(f). The Plaintiffs also inform us that, when a warrant is served with a “preset” bail issued after a defendant fails to appear in violation of a summons, the Commissioner “typically declines to modify the bail previously set in absentia or to consider the defendant's explanation for the [failure to Appear].” Furthermore, “[t]hat bail remains in effect until a bail review hearing, where most judges defer to a colleague's preset amount.” ⁷

The Lawsuit

On November 13, 2006, the Plaintiffs filed in the Circuit Court for Baltimore City a class action complaint (later amended) seeking injunctive and declaratory relief. They sought a declaratory judgment that: (1) the initial bail hearing before the Commissioner is a stage of the criminal proceeding,...