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DeWolfe v. Richmond

Court of Appeals of Maryland

September 25, 2013

PAUL B. DeWOLFE, in his official capacity as the Public Defender for the State of Maryland, et al.

Barbera, C. J. Harrell Battaglia Greene Adkins [*] Bell Eldridge, John C. (Retired, Specially Assigned), JJ.


Eldridge, J.

In an opinion and order filed in this case on January 4, 2012, but not officially published because of motions for reconsideration, Judge (now Chief Judge) Barbera for the Court referred to "the complex procedural history of this case." Since that time, the case's procedural history has become a great deal more complex. Despite the historical complexity, however, the case both then and now has presented a single broad legal issue: whether an indigent criminal defendant is entitled to state-furnished counsel at the defendant's initial appearance before a District Court Commissioner pursuant to Maryland Rule 4-213(a).


Plaintiffs in this case filed a complaint in the Circuit Court for Baltimore City alleging that they were denied Public Defender representation during their initial appearance proceedings before a District Court Commissioner. They named as defendants the District Court of Maryland, the Chief Judge of the District Court of Maryland, the Administrative Judge of the District Court in Baltimore City, and several other District Court officials in Baltimore City.[1] The plaintiffs asserted that the initial appearance proceeding, during which a District Court Commissioner determines whether there is probable cause for the defendant's arrest if the arrest occurred without a warrant and whether an arrested individual is to be detained, or released on bail, or released on his or her own recognizance, is a critical stage of the criminal proceeding requiring state-furnished counsel under the provisions of the Public Defender Act, Maryland Code (2001, 2008 Repl. Vol., 2012 Supp.), §16-204(b)(2) of the Criminal Procedure Article. They also relied upon the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights. In addition, they argued that the failure to furnish counsel violated the due process protections of the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights. Plaintiffs sought a declaratory judgment and an injunction to enjoin the defendants from violating the plaintiffs' right to representation at initial appearances before District Court Commissioners.

Plaintiffs Quinton Richmond, Jerome Jett, Glenn Callaway, Myron Singleton, Timothy Wright, Keith Wilds, Michael LaGrasse, Ralph Steele, Laura Baker, Erich Lewis, and Nathaniel Shivers were each separately arrested for unrelated criminal activity occurring in Baltimore City. Each plaintiff was arrested for a "serious offense" as defined in the Public Defender Statute, § 16-101(h)(1)-(4). Each plaintiff was detained at the Central Booking Jail in Baltimore City and brought before a Commissioner for an initial appearance pursuant to statute and Maryland Rule 4-213.[2]

While the Rules indicate that a defendant's first appearance must be before a "judicial officer, " the Rules also provide that a "judicial officer" may be either a District Court Commissioner or a Judge. Maryland Rule 4-102(f). In each criminal case involving the plaintiffs in this civil case, the judicial officer was a District Court Commissioner. The parties agree that it is general practice that Commissioners, rather than District Court Judges, preside over initial appearances. A Commissioner need not be a lawyer. See Maryland Code (1974, 2013 Repl. Vol.) § 2-607(b) of the Courts and Judicial Proceedings Article; Rule 4-102(f); State v. Smith, 305 Md. 489, 501-505, 505 A.2d 511, 517-519, cert. denied, 476 U.S. 1186, 106 S.Ct. 2925, 91 L.Ed.2d 552 (1986).

The District Court Commissioner determines at the initial appearance, pursuant to Maryland Rule 4-216, whether a plaintiff is eligible for pretrial release. If a defendant was arrested without a warrant, the Commissioner determines whether there was probable cause for each charge and for the arrest. If there was no probable cause, the defendant is released with no conditions of release.

If the Commissioner finds that there was probable cause, Rule 4-216(f) details the numerous factors a Commissioner must take into consideration when imposing "on the defendant the least onerous condition or combination of conditions of release" that serves the purposes of "ensur[ing] the appearance of the defendant, " "protect[ing] the safety of the alleged victim, " and "ensur[ing] that the defendant will not pose a danger to another person or to the community." These factors include, among other things, the nature and circumstances of the offense charged, the defendant's prior record of appearance at court proceedings, and the defendant's family ties, employment status, financial resources, reputation, character, and length of residence in the community and in the State. The recommendation of the State's Attorney and any information presented by the defendant or defendant's counsel also must be considered.

If a Commissioner does not release an arrested individual following this initial appearance, the defendant must be presented to a District Court Judge "immediately if the Court is in session, or if the Court is not in session, at the next session of the Court."[3] As this Court pointed out in its January 4, 2012, opinion, the Commissioner's initial bail decision is not often changed during subsequent review, with the bail set by the Commissioner being maintained by the Judge in nearly half of the bail reviews.

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. Moreover, studies show that the bail amounts are often improperly affected by race.

In Baltimore City, an arrestee's initial appearance occurs in a "tiny narrow booth" in Central Booking Jail, which does not allow the public to attend the proceeding.[4] A record of the proceeding is not made. The Commissioner is separated from the arrested individual by a plexiglass partition, and all communications take place through a speaker system. There are no prohibitions against attorneys participating in these proceedings, but, in practice, arrested individuals are rarely represented by an attorney during an initial appearance before the Commissioner. The State's Attorney, however, maintains a 24-hour "war room" in Central Booking for the purpose of making recommendations to the Commissioner regarding bail. These communications usually occur ex parte and without any public record. Without a public record of the proceedings before the Commissioner, the plaintiffs point out that "it [is] impossible to review what a Commissioner or arrestee said or to understand the basis for the ruling."

At each of the initial appearances involved in this case, the plaintiff requested an attorney to represent him or her, and also informed the Commissioner that he or she was unable to afford an attorney. Despite the plaintiffs' requests, the Commissioner declined to appoint attorneys and proceeded by setting bails.

In the present civil case, the District Court defendants filed a motion in the Circuit Court for summary judgment as to all claims, and the plaintiffs filed a cross-motion for partial summary judgment. The Circuit Court granted the defendants' motion for summary judgment and entered final judgment for the District Court defendants. The plaintiffs timely appealed and, while the case was pending in the Court of Special Appeals, this Court issued a writ of certiorari. After briefing and oral argument in this Court, we held that, under Rule 2-211(a), the Circuit Court should have dismissed the complaint because of the plaintiffs' failure to join the Public Defender as a party to the action. See Richmond v. District Court of Maryland, 412 Md. 672, 990 A.2d 549 (2010). We vacated the Circuit Court's judgment and remanded the case to the Circuit Court with directions to dismiss the complaint unless the plaintiffs joined the Public Defender as a party.

In the Circuit Court on remand, the Public Defender was joined as a defendant in the action. After some procedural skirmishes in the Circuit Court, which we shall not recount here, the Circuit Court granted the plaintiffs' motion for summary judgment and filed a declaratory judgment. The court, however, denied the plaintiffs' request for injunctive relief. The Circuit Court determined that the plain language of the Public Defender Act, § 16-204(b), required the Public Defender to represent indigents at the initial appearance proceedings before a commissioner. The Circuit Court also decided that the failure to provide representation during initial appearances "violated Plaintiffs' due process rights." The Circuit Court stayed its judgment pending appellate review.

Both the Public Defender and the District Court defendants noted timely appeals. The plaintiffs cross-appealed and also filed in this Court a petition for a writ of certiorari. The questions presented by the plaintiffs queried whether indigent defendants have a right to counsel at initial appearance proceedings before District Court Commissioners under any of the following: Maryland's Public Defender Act, the Sixth Amendment, Article 21 of the Maryland Declaration of Rights, the Federal Constitution's due process guarantee or the Maryland Declaration of Rights' due process guarantee. The Public Defender filed a cross-petition for certiorari, questioning whether the Circuit Court erred in issuing its declaratory judgment "without in any way addressing remedy and how . . . [a] funding shortfall" created by the need to provide counsel at initial appearances before commissioners "might be practicably addressed." This Court granted the petitions. DeWolfe v. Richmond, 420 Md. 81, 21 A.3d 1063 (2011).

In the opinion filed January 4, 2012, this Court held that, under § 16-204(b) of the Public Defender Act, indigent defendants are entitled to public defender representation at any initial appearance proceeding conducted before a commissioner. Because the case was decided on statutory grounds, the Court did not reach the state and federal constitutional issues.[5] The Court held that:

"The initial appearance before the Commissioner – including the bail hearing that is part of that event – is clearly encompassed within a 'criminal proceeding, ' and may result in the defendant's incarceration. The only remaining question is whether the bail determination is a 'stage' of that proceeding. Doubtless it is."

We pointed out that the Commissioner must take into account numerous considerations when determining whether a defendant is to be released on his or her own recognizance or incarcerated pending the subsequent District Court bail review. Given the number of factors considered by the Commissioner, we held that the "presence of counsel for that determination surely can be of assistance to the ...

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