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A sea-shift in Maryland- A public defender for the first bail review

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On January 4, 2012, Maryland’s highest court ruled, under Maryland law rather than under federal Constitutional law, that indigent criminal defendants are entitled to public defender assistance at initial bond reviews before court commissioners, which are held within hours of arrest, followed by a judicial review on the next business day if the defendant has not bonded out yet. DeWolfe v. Richmond, et al. , ___ Md. ___ (Jan. 4, 2012). The implications of DeWolfe are huge, including:

– Under DeWolfe, clearly public defender representation is now also mandated for indigent defendants at all bond hearings, which was not the case before DeWolfe except for in about three jurisdictions in Maryland.

– Where will the funds come from to make the Public Defender’s Office able to provide effective assistance of counsel at bail proceedings before court commissioners and bail reviews on the first date in court?

– Will commissioners’ offices now better accommodate private lawyers’ ability to appear at commissioner bond reviews, versus my recent episode sitting in my car on a cold night, calling the commissioner every hour to remind her to let me know the time window for my client to be seen by her (and not getting a review until around 2:00 a.m.), seeing that the commissioner’s office in that particular county had no waiting area for lawyers?

Here are a few additional thoughts on DeWolfe:

DeWolfe addresses a prosecutorial "war room" near one commissioner’s office, where prosecutors deliver ex parte communications to the commissioner. Commissioner proceedings for now on need to be recorded (they are not currently recorded), not allowing prosecutors to make ex parte communications.

– Appellant Paul DeWolfe is the chief public defender for Maryland. He is a class act, regardless of my views on his position in this litigation.

– The chief authors of an amicus brief supporting the appellees — for amici including the National Association of Criminal Defense Lawyers — was drafted by Christina M. Gattuso, of the Washington, D.C. office of Kilpatrick Townsend and Stockton LLP, and Gia L. Cincone of Kilpatrick’s San Francisco office. I met Chris Gattuso when I was a summer law clerk in the Regulations and Legislation division of the then-named Federal Home Loan Bank Board, where Chris then worked. I was pleasantly surprised that she took on this amicus task, including that she works at a law firm that does not list criminal defense among its practice areas.