By Danny Jacobs
The Daily Record
BALTIMORE, Md. — In the fall of 2007, one of Sara Kafshi’s clients was charged with possessing marijuana and could not pay his $5,000 bail. He faced five weeks in jail before his hearing in Baltimore City District Court, time that could have cost him his job and rent payments.
Kafshi, who at the time worked in the University of Maryland School of Law’s Access to Justice clinic representing indigent defendants charged with nonviolent offenses at district court bail hearings, took the case 10 days after her client was arrested.
She got him released on his own recognizance during a bail review hearing - and achieved the same result for her seven other clients.
“With representation, these people have a chance to be appropriately released,” said Kafshi, now a third-year law student.
Representation at bail hearings is not required by law in Maryland, however. Whether it should be was debated Friday morning in a lively Court of Appeals hearing attended by Kafshi and a dozen past and present clinic participants.
Those students, along with Professor Douglas L. Colbert, filed the November 2006 class-action lawsuit with the help of pro bono lawyers from Venable LLP challenging the bail procedures at the Baltimore Central Booking and Intake Facility.
In Baltimore and across the state, defendants make initial appearances before appointed district court commissioners who determine if bail should be set and how much. Judges then hold bail review hearings on the first business day after a defendant is in custody, which could mean on a Monday if a defendant is arrested on a Friday.
Only the city and Montgomery County make public defenders available for bail review hearings, but even then a third of defendants in the city do not get representation, said Colbert, who has run the clinic since its inception a decade ago and has written extensively on the need for representation at bail hearings.
“It’s been an excellent learning experience for students to learn the right to counsel does not apply to the initial hearing,” Colbert said before the hearing, adding the lawsuit “fits nicely with pedagogical objectives of the law school and public-service interest attorneys have. “
‘Critical stage’
The Court of Appeals has previously held a defendants’ Sixth Amendment right to counsel extends to “all stages” of proceedings but that a bail review hearing is not a “critical stage” and is therefore not covered by the right.
Michael Schatzow, the Venable partner who argued the case Friday before the court, said the Maryland Public Defender Act entitles defendants to counsel in all stages of a criminal proceeding.
“The rights inferred by the statute have to be enforced,” Schatzow said.
But Kendra Y. Ausby, an assistant attorney general representing the District Court of Maryland, called the proposal an “unprecedented” and “impractical” definition of the law, which does not specifically mention bail hearings.
“We have to give some weight to the fact it’s notably missing,” Ausby said.
The judges’ comments explored the practicalities of both sides’ arguments. Judge Joseph F. Murphy Jr. called the need for counsel at all bail hearings “questionable,” saying someone who kills a witness “could have Clarence Darrow standing next to him and he’s not going to be released. “
Judges Clayton Greene Jr. and Lynne A. Battaglia wondered how it would be determined if someone qualified for a public defender and what would happen if there were multiple defendants involved in the same crime, respectively. Schatzow said one scenario would involve establishing a duty public defender who would meet with a defendant at the same time charges are being processed.
Chief Judge Robert M. Bell questioned Ausby as to why the state did not consider the bail hearing “critical” if probable cause has already been established by the commissioner in order to set bail.
“Your prosecution starts the moment you’re charged,” he said. “It’s the original decision. That is the critical one. That’s where the lawyer is most effective. “
Judges Sally D. Adkins and Mary Ellen Barbera offered solutions to the problem. Adkins suggested instructing commissioners to have more liberal standards for bail and judges not to simply defer to a commissioner’s decision. Barbera asked if the issue would be better addressed at bail review stage, where a judge presides in open court.
Following the hearing, Colbert said he did not want to talk about the judges’ comments before they issued their opinion, but took it as a good sign the judges were asking so many questions. He then excused himself to thank the students who attended the hearing, the epitome of a teachable moment.
“We will continue to try to provide representation to those who don’t have it,” he told them.
The case is Quinton Richmond et al. v. The District Court of Maryland et al., CA No. 54 (Sept. 2008 Term).
Copyright 2009 Dolan Media Newswires