Recently, an unrepresented misdemeanor defendant appeared before a rather new Maryland judge for the non-jailable but nevertheless criminal misdemeanor charge of possessing an open alcoholic beverage container. Md. Code Alc. Bev. art. §6–322 (which confirms itself to be a criminal statute:  “a person who violates this section is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $100”).

The defendant asked the judge for a postponement, apparently to seek a lawyer. I heard the judge then say that for this case where only a fine and no jail applied, the defendant did not have the right to a lawyer. 

Incorrect! The judge perhaps was conflating (1) a correct statement of the current law that criminal defendants are not entitled to indigent defense counsel when charged with non-jailable crimes (and in Virginia, judges routinely deny court-appointed counsel when the police or prosecutors are not seeking jail time), with (2) the Sixth Amendment right to counsel for all criminal cases. In other words, this open alcoholic beverage container defendant had the right to hire his own lawyer for the case even if a court-appointed or public defender lawyer would not have been available to him were he indigent.

The Sixth Amendment to the United States Constitution proclaims “In all criminal prosecutions, the accused shall enjoy the right… to have the assistance of counsel for his defense.” Thank goodness for that.

Of course, for Constitutional rights to have meaning, judges must abide by them. Judges are generalists, to be sure. However, if one is to become and remain a judge, a judge must know and correctly apply such basic law as the right to counsel.  

Here, the judge might not have considered that even though the maximum available fine for the matter is only $100, plus court costs, some people will hire a lawyer for such cases to try to win — and such cases are often winnable — to help maintain their reputations, avoid a conviction’s causing a probation/parole violation. and keep a cleaner criminal record for any pending or potential sentencing dates for other cases.

The right to counsel — even though it is a right that can be waived by action or inaction — must always be honored.