State Seeks Reversal of DeWolfe II: What Do You Think?
Yesterday, the State filed its opening brief in Ben C. Clyburn et al. v. Quinton Richmond et al., No. 105, Sept. Term 2013. Clyburn v. Richmond addresses the injunction entered by the Circuit Court for Baltimore City to implement DeWolfe II, which found a state constitutional right to counsel at initial appearances. The State has asked the Court of Appeals to reverse DeWolfe II. The State’s summary of that argument (from pages 27 through 29 of the brief) is pasted below. We’d love for our readers to start a conversation on both the substance and the form of that argument. Click here or go down to “Leave a Reply” at the bottom of this post.
Here’s the State’s argument:
What makes the task of fashioning a workable remedy so hard in this case is the inherent tension in this Court’s ruling in DeWolfe II, which works a fundamental alteration in Maryland’s pretrial criminal procedure system, because the decision declares a constitutional right, but that right is engrafted on the initial appearance, a feature of the State’s pretrial procedures that is not itself constitutionally required. This Court adopted the rules creating the State’s current pretrial procedures for determining conditions of release for arrestees more than four decades ago. But it was not until five months ago that this Court determined that those procedures are constitutionally inadequate. If the initial appearance is both constitutionally unnecessary and constitutionally inadequate, why not just get rid of the initial appearance as we know it? Significantly, that is the approach embraced by every major policy proposal currently under consideration, including the Judiciary’s proposal (App. 15-18, 25-27, 39-40, 51-58, 67). The problem is that, although many laudable policy reforms have been proposed in response to the DeWolfe II ruling, the initial appearance also has undeniable benefits—for the pretrial system as a whole, but especially for arrestees, almost half of whom currently obtain their release from a commissioner at the initial appearance, without the assistance of a lawyer, and without the need to appear before a judge. The ruling in DeWolfe II makes it difficult to preserve the salutary and liberty-enhancing aspects of the initial appearance.
By decreeing that the State must furnish a lawyer whenever it implements a procedure that offers an opportunity for a prompt release following arrest, the Court has construed the constitution to produce a perverse result, by making it more costly for the State to offer an arrestee his or her freedom. The State raised this concern when it moved for reconsideration of the DeWolfe II ruling. (App. 201.) The plaintiffs opposed the motion, but they acknowledged that eliminating the initial appearance would be undesirable. Indeed, the plaintiffs decried what they described as a “‘Sophie’s Choice” between the newly declared “right to counsel and the[] right to liberty,” and they characterized then-nascent policy proposals to collapse the existing two-step sequence for determining an arrestee’s conditions of release into a single appearance before a judge (with counsel) as an “undisguised threat against Plaintiffs’ liberty.” (App. 207.)
This appeal presents an opportunity for this Court to correct a mistake. The judgment under review is flawed not merely because it represents an unworkable approach to implementing the DeWolfe II ruling, but also because the DeWolfe II ruling is itself flawed. Thus, in answering whether the circuit court erred in ordering the District Court Defendants to appoint counsel for arrestees at initial appearances and in preventing the District Court Defendants from conducting initial appearances without appointed counsel present, this Court should conclude that due process does not require the presence of counsel at an initial appearance. Process is not an end in itself: constitutional guarantees of due process are meant to protect liberty, and the liberty enhancing features of the existing system of pretrial procedures should not be sacrificed to a conception of due process that was based on erroneous factual assumptions and a misapplication of established principles. The Court should overrule its decision in DeWolfe II.
Maryland Appellate Blog 
In the interest of completeness, it should be noted that this argument (the argument that Richmond II should be reversed) is the State’s third and final argument – despite the press coverage to the contrary, it is not the core of the State’s case. The State precedes it with two procedural arguments, the simplest one being that the circuit court erroneously issued an injunction without first issuing a show cause order and giving the defendants the opportunity to respond. It is quite possible that the Court of Appeals may reverse solely on that procedural ground. At present, the circuit court’s order is stayed until 4:30 pm on March 7, 2014, the date of oral argument. Of course, the Court of Appeals need not (and probably will not) specify its reasoning when it issues whatever order it will issue at 4:30 pm on that date. Instead, it might simply state that the judgment is reversed for reasons to be explained later, as it does, for example, in election cases and (sometimes) in attorney grievance cases. The court might not issue its actual opinion until its self-imposed deadline in August. In the meantime, the Richmond II ruling, and the circuit court’s injunction, would be in abeyance. Once the Court of Appeals eventually issues an opinion in which it reversed the circuit court on procedural grounds, the case would presumably return to the circuit court for additional proceedings that are consistent with whatever directives the Court of Appeals gives. But in the meantime, we are likely to see legislative enactments that materially alter the current system of pretrial release and, in that way, effectively moot the Richmond II decision.