Counsel for bail reviews at issue

Attorneys have differing views on state court ruling

`All means all'

April 21, 2001|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

Poor people accused of crimes have a right to an attorney at "all stages in the proceedings," the state's highest court ruled this week."`All' means `all,'" Judge John C. Eldridge wrote for the unanimous Court of Appeals. But lawyers have differing interpretations of what "all" includes.

Advocates for extending the right of legal representation for defendants to bail reviews said the 12-page decision means Maryland's top court could be doing what the General Assembly would not do. They interpreted the ruling to say that the Maryland Public Defender Act can be applied to bail review hearings.

But state Public Defender Stephen E. Harris said, "Our interpretation is it does not."

At bail reviews, a judge sets bail based largely on whether a criminal defendant is a flight risk and dangerous. A defendant who does not see a lawyer at that time might not see one for weeks.

Studies show that defendants without lawyers, even if accused of nonviolent crimes, are more likely to spend time in jail at taxpayer expense, and that having lawyers at bail reviews helps defendants and their families as well as the system.

Bills to spend nearly $1 million a year to extend public defender representation to bail reviews have failed repeatedly in the General Assembly.

Harris, who has backed such measures and who said he lacks the resources to staff bail reviews, said his office is continuing to digest the ruling but so far does not see it as an expansion of defendants' rights.

"Until there is a court order that says we have to do it -- we don't have the funding," he said.

University of Maryland law professor Douglas L. Colbert, who founded Lawyers at Bail, an 18-month Abell Foundation-funded project that supplied lawyers to defendants at bail hearings, called the ruling "one of the most important right-to-counsel decisions" in Maryland with a broad application.

Having attorneys for bail review hearings aims to level the playing field early in criminal proceedings by helping poor defendants win pre-trial freedom, he said.

The Court of Appeals ruling "says that Maryland is on record for protecting every person's right to counsel at every stage of a criminal proceeding. There is no reasonable interpretation to exclude any phase of a criminal case and certainly bail reviews are included from a fair reading of the court's opinion," Colbert said.

The decision Monday overturned the Wicomico County drug conviction of Antwone P. McCarter, who had waived his constitutional right to a jury trial at his first court appearance, but not his right to a lawyer. Once a public defender took on the case, McCarter wanted a jury trial.

The court said that a trial judge should not ask a defendant who has not waived his right to an attorney to make a crucial decision about whether to be tried by a judge.

Colbert said the decision should be applied to bail reviews as well.

"When a person's freedom is at stake, that is when you want a lawyer to represent you," he said.

Dwight Sullivan, managing attorney for the American Civil Liberties Union of Maryland, agreed with Colbert.

"All means all. That is an enormous statement," Sullivan said.

Only in four Maryland jurisdictions are there public defenders for bail reviews.

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