A lesson in justice

Law students help win a case to expand defendants' rights

October 09, 2010|By Jean Marbella, The Baltimore Sun

It's a class project that's been under way for about 14 years now — and counting. But perhaps that's the lesson: The wheels of justice do move, just slowly.

Students who have taken an access-to-justice clinic at the University of Maryland School of Law over the years did much of the groundwork for a lawsuit won recently in Baltimore Circuit Court. In a decision issued last week, Judge Alfred Nance ruled that criminal defendants have a right to legal representation at hearings in which their bail is determined.

I know: You probably thought they already had that right. Anyone who has seen even one episode of any legal drama on TV knows that even if you can't afford a lawyer, you're entitled to one. That's true, but as it turns out, when it comes to legal proceedings in Maryland, that right doesn't kick in immediately.

Defendants here aren't entitled to lawyers for the first two proceedings after they're arrested — either the appearance before the court commissioner who can release them or set a bail amount, or the district judge who reviews the bail the next business day.

The upshot is that Central Booking in Baltimore gets filled with people who are too poor to make bail or hire a lawyer who might have helped get the amount reduced or even eliminated. They sit in jail for weeks, even months, awaiting a trial, which won't even happen if the charges get dismissed.

Here's my second "I know what you're thinking": Who cares? If you got arrested, you probably did something wrong, so who cares if you have to cool your heels in jail while awaiting trial?

But many of these people are charged with nonviolent or minor offenses. They're in jail not so much because they're dangerous but because they can't make bail. In the meantime, jobs are lost, rents go unpaid and, as Slate magazine said this week about some new criminology research, "poverty creates prisoners and … prisons in turn fuel poverty."

"There are so many collateral consequences," said Anne Deady, now a defense lawyer but several years ago one of the law clinic students who was surprised to find out that people were going into bail hearings without representation. "It's almost like you're punishing people before trial for not being able to afford bail."

The effort was launched by University of Maryland law professor Doug Colbert, who moved here after 12 years as a Legal Aid lawyer in New York City, where those arrested had lawyers at bail hearings. Studies have shown that you're much more likely to be released on your own recognizance or get a reduced bail if you have an attorney, Colbert said.

Initially, he and his law clinic students went the legislative route, but they met with significant pushback from the bail bond industry. Then, four years ago, the students made a two-hour presentation about the problem to several partners of the Venable law firm and convinced them to help them, pro bono, file suit to get indigent defendants the right to counsel during their initial appearances.

Nance initially ruled against them. They appealed, the appellate court sent the case back to Nance, and he reversed his previous finding. Nothing changes for now because the judge stayed his order to give the state time to decide whether to appeal. Still, Colbert, the Venable lawyers and the current and former students are cheering what they call a potentially huge advance in the rights of criminal defendants.

"It is such a pleasure to see, when you're a student or a new lawyer, that you can make a difference," Deady said. "It shows me this is what we're supposed to do in this profession."

Several weeks back, for another article, I happened to sit in on some bail review hearings at Central Booking. It was immediately obvious that, lacking much information about the defendants, the safest thing to do was to set a bail high enough to keep them in jail until their cases could be sorted out. Who wants to be the guy who lets out someone who then commits a dangerous crime?

"People who just hear the words 'releasing criminals' or 'releasing the accused,' and they think of someone robbing or raping people," said third-year Maryland law student Portia Wood. "No one is saying a person who is accused of murdering someone, let him out."

Instead, she and her classmates represented people like an Iraq War veteran who remained in jail for 2 1/2 weeks because he couldn't afford a $1,000 bail on a marijuana-possession case that ultimately was dismissed. Then there was the 63-year-old man who spent nine days in jail on a charge of public urination because he couldn't come up with $100 bail.

"It's the people with the least voice and the least power in society that are really being affected," Wood said.

jean.marbella@baltsun.com

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