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.