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Circuit Court Judge Rules Defendants Have Right to Counsel Before Commissioner

Judge Alfred Nance of the Baltimore City Circuit Court has ruled that defendants in Maryland criminal cases are entitled to be represented by an attorney at their initial appearance before a court commissioner.

Appellate Courts in Maryland have previously ruled that appearances before a court commissioner were not “critical stages in a criminal proceeding.” Although I have not read his opinion, Judge Nance wisely stayed his seemingly maverick ruling due to the likelihood the matter is far from settled and will be taken up on appeal.

It has been longstanding practice in Maryland that when a criminal defendant is arrested, they are brought before a court commissioner within twenty-four hours of the arrest. Most jurisdictions outside Baltimore City move much faster. At the brief hearing, the commissioner will set an initial bail. These hearings occur at all hours of the day. The bail is subject to review by a Maryland District Court Judge the next day.

It is not required that a court commissioner be a lawyer, in fact, most are not. Notwithstanding, often the bail set by the commissioner is upheld by the Judge the next day. Defendants are afforded the right to be represented at the initial bail review before a Maryland District Court Judge. Based upon my experience, those who appear with lawyers fair better.

In allowing lawyers to enter the mix at the commissioner level, the system may grind to a halt, particularly in Baltimore City. What used to take 2 minutes may now take an additional 30 minutes. If upheld, will the Public Defendant be required to provide around-the-clock counsel? If so, at what cost does it make sense? Particularly when a Judge hears the same facts the next day. For these and other reasons, I do not see Judge Nance’s ruling surviving an appeal.

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