Pro Se Task Force

TASK FORCE ON DENIAL OF RIGHT TO COUNSEL TO MISDEMEANOR CRIMINAL DEFENDANTS IN MONTGOMERY COUNTY, MARYLAND

In Montgomery County’s District Court, increasing numbers of unrepresented, pro se defendants are pleading guilty in misdemeanor criminal cases such as traffic offenses, drug possession, possession of drug paraphernalia, underage possession of alcohol, theft, and the like.

Prosecutors facilitate this process (or lack of it) by their willingness to take guilty pleas even when police officers and/or other necessary witnesses fail to appear on the day set for trial.

Defense lawyers facilitate it through:

A cumbersome system to qualify for public defender representation, with requirements that approximately 60% of applicants do not fulfill;
A private defense bar that does not want it, for self-interested economic reasons, to be too easy for misdemeanor defendants to qualify for public defender representation.

District Court judges facilitate it by:

Noncompliance with Md. Crim. Pro. Rule 4.215(a), which requires “the court” to advise criminal defendants of their right to counsel on their first appearance in court (which may be the day set for trial, if the defendant posted bond set by a commissioner immediately after arrest). (There is an unresolved question about whether this rule, which speaks of “the court,” applies only to Circuit Court and not to District Court proceedings; moreover, the State contends that, in any event, the requirements of the rule are satisfied by a defendant’s appearance before a commissioner at a mass-defendant “preliminary inquiry” – even though the Court of Appeals has held that in a Circuit Court proceeding the “preliminary inquiry” does not amount to compliance with Rule 4.215(a)).
Noncompliance with Rule 4.215(c) (which does, without question, apply in District Court) by finding waivers of counsel by “inaction” (often on the first trial date, which usually occurs within 45 days of arrest) without making sufficient factual record to justify a finding of waiver (a point developed in the attached habeas corpus petition in Merriweather v. State). (A copy of the relevant rules, annotated and current to May, 2004, is also attached.)

The enabling attitude – a view apparently shared by prosecutors, some defense lawyers, and judges alike – is that misdemeanor convictions (even without representation by counsel) in District Court do not hurt defendants all that much because (a) jail sentences (which typically involve only local incarceration) are not very significant, and (b) an unrepresented defendant who is dissatisfied with the outcome of a proceeding in District Court (whether after a bench trial, or even after a sentence imposed on a guilty plea) can, as a matter of right, obtain a de novo trial (including, in some cases, a jury trial) in Circuit Court – where counsel may, of course, appear on the defendant’s behalf. (The latter “no prejudice” point – argued by the State in habeas petitions filed in connections with District Court cases – ignores the fact that counsel in a District Court case may, as a tactical decision, choose to remove a case to Circuit Court before trial or entry of a plea of guilty in the District Court, thereby preserving a right to appellate review in the event of a Circuit Court conviction; a defendant unrepresented by a lawyer in District Court is, of course, quite unlikely to understand that a de novo trial in Circuit Court after a District Court conviction extinguishes the right to further appellate court review. Moreover, the District Court judges are known to impose (very) large appeal bonds (often $10,000 cash or more) that must be paid to stay the imposition of any sentence imposed in District Court pending appeal.

The prevailing attitude of de minimus harm ignores the very real and substantial collateral consequences of misdemeanor convictions such as, for example, limiting or extinguishing possibilities for public housing subsidies and financial aid for higher education, changes in immigration status, and increased exposure to incarceration for subsequent offenses. These systemic effects have, moreover, disproportionate impacts on poor minority defendants – particularly young African-American men – that amplify the system’s already significant impairment of their opportunities for eventual achievement and success.

The objectives of summer, 2007, work by law students and members of the Montgomery County Task Force On Pro Se Defendants would be to research underlying legal issues and, even more importantly, to gather essential factual data by:

Retrieving, from the District Court’s computer files and dockets, information about the incidence of unrepresented misdemeanor convictions and the number of subsequent appeals to the Circuit Court;
Obtaining audio recordings of previous District Court proceedings, and compiling and summarizing relevant information;
Observing and collecting information about current and on-going District Court proceedings;
Attending a June, 2007, bench/bar conference sponsored by the Montgomery County Bar Association to glean the views of judges on these issues;
Detailing the collateral consequences of misdemeanor convictions in particular instances – e.g., someone who may have lost financial aid at Montgomery County Community College as the result of a conviction – in order to individualize and humanize the issues