Counsel Required at Bail Hearings in Maryland

Three years ago, SALT supported the Richmond litigation and submitted an amicus brief written by Brooklyn Law Professor Ursula Bentele in which SALT argued that indigent defendants' constitutional right to counsel extends to an accused's first appearance before a judicial officer. SALT contended that bail is a critical stage of a criminal proceeding that requires states to provide for representation.  The Maryland Court of Appeals unanimously ruled that counsel must be made available at the first court proceeding, which is bail.
 
Since then, major steps have been made towards recognizing this essential right: the New York Court of Appeals ruling in Harrell-Haring agreed with SALT's position and the US Supreme Court's ruling in Rothgery v. Gillespie County took an important step toward guaranteeing counsel for the poor. Both Harrell-Hurring and Rothgery were instrumental in persuading a lower Maryland court last year to issue a landmark constitutional ruling in favor of the plaintiffs’ class. The SALT executive committee agreed that SALT should again submit an amicus brief to the Maryland Court of Appeals when the lower court’s ruling ordering counsel at bail hearings was challenged.
 
SALT thanks Professor Bentele who along with her students agreed to draft the constitutional law portion of the amicus brief incorporating these latest advances.  In addition through the efforts of SALT board member Doug Colbert, the pro bono services of Morrison Foerster were secured.  With time pressures mounting, George Harris, a partner in the San Francisco MoFo office, agreed to take SALT on as a pro bono client.  In addition to drafting a procedural argument (the Maryland Public Defender wanted hearings on the affordability of providing counsel before the court declared the right), MoFo took on the responsibility for merging the two sections, editing, and serving and filing the brief on Friday, September 16.

SALT heartily thanks Morrison Foerster, especially Reema Abdelhamid, an associate in the New York MoFo office, who did the lion's share of the research and writing.  She was assisted by Cindy Abramson and Amy Phillips, both associates, and of course, a major thank you to George Harris for taking on this important issue and supervising the entire process.
 
We also owe our colleague Doug Colbert, who is exhausted although exuberant, a real congratulations in bringing these intellectual forces together to expand the concept of fairness in criminal proceedings.  Doug included SALT as part of a concerted effort to expand the right to counsel to the first and definitively critical phase of a criminal proceeding—bail.   

Download a copy of the amicus brief, filed September 16, 2011.