The Initial Appearance

For the last year I have been working evening shifts at the District Court Commissioner’s Office in Annapolis, Maryland, and at The Central Booking and Intake Facility in Baltimore City.  After the Court of Appeals decisions in what has become known as the Richmond Decision[1], the Appointed Attorneys Program was implemented by Maryland’s Legislature in July of 2014.  The Appointed Attorneys Program allows for eligible defendants to be represented by a Court Appointed Attorney at his or her Initial Appearance Hearing.[2] 

As the Plaintiffs’ in Richmond argued, an attorney is extremely helpful at this stage.  An attorney can not only explain the charges and offer support to the accused in a stressful situation, but he or she can also help them get the best possible pretrial release determination.  Arguments challenging probable cause can lead to the accused being released on his or her own personal recognizance.  Also, the attorney acts as a safe guard against potential self-incrimination.  Further, there are factors that the Court considers when determining pretrial release.  An experienced criminal attorney knows how to get the information they need from the client and present it to the Commissioner in a way that gets them the best possible result. 

I have seen many people waive their right to counsel at these hearings over the last year, and always wondered why.  Is it because they did not know the attorney was actually there waiting to help them?  Are they worried the Commissioner will go harder on them if they seek the advise of counsel?  Are the police pressuring them to waive this right?  My experience in this program has lead me to believe that the Commissioners like hearing from attorneys, and representation has certainly never made the terms of pretrial release harsher.  Having an attorney in these proceedings can only help an individual’s chances of release or obtaining a reasonable bond.  My hope is that more people will exercise their right to an attorney - because I have seen first hand that it makes a difference.     

Being a part of the Appointed Attorneys Program has been one of the most rewarding experiences of my career.  Helping an individual in their most vulnerable moment is a gratifying experience.  I am blessed to be apart of the panel of private attorneys that take the time to help people at the beginning of a potentially long and scary journey through our criminal justice system.

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[1] The Court of Appeals in Dewolfe v. Richmond, 434 Md. 403 (2012), ruled that the Initial Appearance Hearing was a stage in a criminal proceeding where the presence of counsel for the determination of release would be of great assistance to the defendant.   Moreover, the Court gave credence to the argument that “unrepresented suspects are more likely to have more perfunctory hearings, less likely to be released on recognizance, more likely to have higher and unaffordable bail, and more likely to serve longer detentions or to pay the expense of a bail bondman’s non-refundable 10% fee to regain their freedom.” Id. at 429.  Dewolfe v. Richmond, 434 Md. 444 (2013) quoted these reasoning’s as well, and went on to hold that under the Due Process component of Article 24 of the Maryland Declaration of Rights, an indigent defendant has a right to State furnished counsel at an initial appearance hearing before a District Court Commissioner.

[2] The accused also can elect to have a private attorney represent him or her at the hearing. A private attorney can participate in person, by phone, or even by fax.

Baltimore Meltdown The Result Of Police Brutality--Not A Silly Comment By The Mayor

Rick Ungar

I write from the left on politics and policy.

Opinions expressed by Forbes Contributors are their own.

Watching the coverage of the Baltimore riots, I was stunned by how much time was being given by the media to the effort to blame someone for the unfolding violence.

Local and national reporters busily tossed around questions aimed at assigning blame to Mayor Rawlings-Blake for her foolish comment the other day where she appeared to be endorsing those who wanted the ‘space’ to express their displeasure over the death of Freddie Gray by acting out in violence. Reporters also focused on finding blame for the time it took to send the National Guard onto the streets of Baltimore because it makes for better copy to blame government reaction or inaction than to imagine the considerations a Mayor and a Governor face when trying to find a balance between the danger of inflaming a situation versus controlling that situation.

Yes, the Mayor most certainly made an errant and unforced error in her remarks when the rioting first broke out Saturday night—an error that she, like any other human being realizing a mistake, attempted to walk back.

And, maybe the state was too slow to send in the Guard or maybe it was not.

But if you imagine that the Mayor’s silly comment—or the timing of the arrival of National Guard troops—are the reason that the city of Baltimore is in total distress, you are either not paying attention or are simply unwilling to dig into the history of the city to understand what is really at work here.

Poverty is always going to be a fast track to exasperation and from exasperation it is a short hop to violence—and there is plenty of poverty in the City of Baltimore.

Police and demonstrators gather in the aftermath of rioting following Monday’s funeral for Freddie Gray, who died in police custody, on Tuesday, April 28, 2015, in Baltimore. (AP Photo/Evan Vucci)

Reasonable people can argue about who is responsible for a community experiencing abject poverty. Some will say that government has enabled the poverty by providing too much help by way of welfare while others will suggest that government has done too little to help impoverished communities break the cycle. Still others will place the blame on the members of the community themselves.

We can leave that discussion to another day because, in the case of Baltimore, there is a more immediate explanation for why the death of Freddie Gray would set off the explosion first ignited on Saturday night with the full eruption occurring yesterday as Mr. Gray was being laid to rest.

Between the years 2011 to 2014, the City of Baltimore was forced to pay out almost six million dollars in compensation to those who had been adjudged the victims of police brutality. Even more stunning, given that Baltimore is a city of only 622,000 people, there were more than 100 court judgments or settlements awarded to victims of police brutality and civil rights violations.

I think we can all agree that only a tiny percentage of those who may have suffered similar abuse ever manage to bring their cases before a court. Thus, the one-hundred plus who sought to redress their grievances likely represents only the tip of the iceberg.

No doubt, these are all cases of bad guys who smarted off to the cops during an arrest and earned the response they received, yes?

Sadly, no.

In fact, virtually all of the victims who brought court cases were either never charged with a crime or had the charges dropped by the court.

These were not, in the vernacular, righteous busts.

Who were these victims?

A 26 year old pregnant accountant who had witnessed the police berating the victims of an attack and tried to set them straight by explaining to the officers what she had seen so that the police would go after the attackers instead of focusing on the victims. The police responded by pushing the woman to the ground, scraping the skin off her face in the process and cuffing her.

Court transcripts show that the police in question attempted to severely minimize the events in court. However, there had been two, uninvolved witnesses who corroborated the pregnant accountant’s story, leading to the woman receiving $125,000 in compensation from the city.

Vast Changes in Maryland Domestic Violence Law

The Legislature was busy last session.  It passed into law enhanced penalties for repeat DWI offenders, added new statutory crimes like home invasion, and marijuana was significantly decriminalized.  Possession of less than 10 grams of marijuana is no longer a criminal offense. Domestic violence, in particular, received a significant makeover that took effect October 1, 2014. 

First, and most controversial, is the now lower standard of proof required for Final Peace and Protective Orders.  Before October 1^st of this year, Maryland law required a showing of “clear and convincing evidence” by the Petitioner in order to obtain a Final Peace or Protective Order.  The new law requires the “preponderance of the evidence” standard, which is one of the lower thresholds in the court system.  This lower standard will make it easier for the Petitioner to prove allegations of abuse, and lead to more Final Protective Orders granted.  Although Peace and Protective Orders are a civil remedy, the stigma associated with having a Final Peace or Protective Order in place against you is arguably greater than being found guilty of many crimes.  Since the public can easily find out about the issuance of Temporary and Final Protective Orders, there is great concern by many over how it will affect their employment and everyday life should an Order be granted against them. 

To illustrate the difference in required proof, let’s consider the illustration of percentages.  A clear and convincing standard can easily be thought of as a Judge being 75% convinced that the alleged abuse occurred.  A preponderance of the evidence standard, on the other hand, can be thought of as the Judge being about 51% sure that the alleged abuse occurred.  This may not seem like a big difference to the average person, but in my opinion, and the opinion of many Maryland attorneys who also represent parties at these hearings, it is a huge difference that will most likely result in the finding of more Final Orders.

Many see the change in law as a huge step forward to fighting domestic violence.  According to a Press Release on Lt. Governor Brown’s website, “Of the nearly 5,300 final peace or protective orders that were denied last year alone, 3,500 of those were because the victim could not meet the standard of “clear and convincing evidence.”  This important change will ensure more victims of domestic violence have access to the protections they need.”’  (See Lt. Governor Brown’s Press Release, http://www.governor.maryland.gov/ltgovernor/pressreleases/141001.asp (last visited November 8, 2014)).  According to the press release, Maryland was the only state still holding victims of domestic violence to the higher standard of “clear and convincing evidence.”  

Since Peace and Protective Order Hearings are a civil proceeding, the parties involved have to seek private counsel or pro-bono legal services should they want representation.  Sadly, the Office of the Public Defender is not an option for indigent Petitioners and Respondents.

The impact of the new law will most likely be that a Respondent who finds him or herself with an Order against them will face more life challenges as a result – at work, in their custody and child support cases, and even at pre-trial release determinations.

Another major change in law with regard to domestic violence is that the crime of second-degree assault will now be included among the list of crimes for which a person can obtain a final protective order.  According to the Maryland State’s Attorneys Association, the majority of domestic violence cases involve second-degree assault (Maryland State Commission on Criminal Sentencing Policy, 2012). Additionally, a 2012 report showed that 94 percent of domestic violence crimes reported to the police are charged as assault (Uniform Crime Report, 2012).  This new change will also help victims of domestic violence obtain that Final Order for protection with greater ease.

Lastly, the Legislature passed an enhancement regarding violent crimes that are committed in the presence of a minor in the home.  A Judge may now impose an additional five years on top of the sentence for the crime itself.

The enactment of these new laws makes it clear that Maryland is getting tougher on Domestic Violence.  Whether you are the Petitioner or the Respondent, you should seek the help of an experienced attorney for representation at Peace and Protective Order Hearings.