March 24, 2014

Honorable Bobby A. Zirkin 301 James Senate Office Building 11 Bladen Street Annapolis, MD 21401 bobby.zirkin@senate.state.md.us Re: Waiver of Right to Counsel at Initial Appearance before District Court Commissioner Dear Senator Zirkin: Thank you for requesting my opinion on the question of whether, at a defendants initial appearance before a District Court commissioner, the defendant can waive his or her right to be

represented by an attorney. For the reasons that follow, I am persuaded that the answer to this question is yes. In light of DeWolfe v. Richmond, 434 Md. 444 (2013), at his or her initial appearance before a District Court commissioner, the defendant has two constitutional rights one provided by the Constitution of the United States, and one provided by Article 24 of the Maryland Declaration of Rights. In Gerstein v. Pugh, 420 U.S. 103 (1975), the United States Supreme Court held that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest. 420 U.S. at 114. The probable cause determination, however, does not trigger the defendants Sixth Amendment right to counsel.i As a result of DeWolfe, supra, it is of no consequence that a defendant does not have a Sixth Amendment right to appointed counsel at his or her initial appearance, because that right is provided by Article 24 of the Maryland Declaration of Rights. The question is whether that right can be waived. To answer this question, it may be helpful to identify rights that criminal defendants are entitled to waive. Every criminal defendant is entitled to waive his or her right to (1) The privilege against compelled self-incrimination. State v. Luckett, 413 Md. 360, 379 (2010). (2) A prompt presentment. Md. Rule 4-212(e) & (f); Logan v. State, 289 Md. 460, 469-70 (1981). (3) A preliminary hearing. Md. Code Ann., Crim. Proc. 4-103(b)(2); Md. Rule 4-221(a). (4) The assistance of counsel at trial. Md. Rule 4-215. (5) A speedy trial.

(6) A trial by jury. Md. Rule 4-245(b). (7) A 12-person jury. Md. Rule 4-311(b). (8) Jury unanimity. Md. Rule 4-311(b). (9) Allocution before sentencing. Logan v. State, 289 Md. 460, 487 (1981). (10). Appeal. Thanos v. State, 332 Md. 511, 520 (1993). Given the rights that defendants are entitled to waive, I conclude that the defendant cannot be prohibited from waiving his or her right to counsel at the defendants initial appearance before a District Court commissioner. I understand that the Rules Committee has arrived at a similar conclusion, and has approved of a proposed rule that will allow the defendant to waive the right to an attorney at the defendants initial appearance if the District Court commissioner finds that the waiver is knowing and voluntary. In the criminal procedure context, a statement made by a defendant during custodial interrogation is not coerced merely because the defendant did not volunteer to be arrested, and an inculpatory statement made by the defendant during the interrogation is voluntary as long as the statement was not compelled or obtained as a result of force, promise, threat, inducement or offer of reward. During criminal proceedings, trial judges accept voluntary waivers from defendants who have not volunteered to be charged and/or convicted and/or sentenced. For these reasons, I also conclude that there is no merit in the argument that a District Court commissioner should be prohibited from accepting an initial appearance waiver of counsel from any defendant until that defendant has actually conferred with counsel. While a District Court commissioner should never accept a coerced waiver, a defendant whose waiver of counsel is knowing and voluntary should not be forced to remain in custody until he or she has been interviewed by a public defender or other appointed counsel. I also understand that the General Assembly is considering whether the DeWolfe v. Richmond problem can be solved by transferring the pretrial release determination from the Judicial Branch to the Executive Branch, and by using a risk assessment tool to identify defendants who should be released pending trial. The decision to initiate criminal charges is an Executive Branch decision. The decision to arrest a defendant, however, requires a determination of whether that defendant should be detained pending trial, or whether that defendant should be released on one or more conditions of release. In my opinion, those determinations must be made by a judicial officer. Respectfully submitted,

Joseph Murphy
Judge Joseph F. Murphy, Jr. (Retired) JFM:bas

The Gerstein Court also stated that [b]ecause of its limited function and its nonadversary character, the probable cause determination is not a critical stage in the prosecution that would require appointed counsel. 410 U.S. at

122. Consistent with this holding is Fenner v. State, 381 Md. 1 (2004) in which, while rejecting the petitioners argument that his inculpatory response to a general question appropriate at a bail review hearing should have been excluded as violative of his Miranda rights, the Court of Appeals stated: We also hold that there existed no Sixth Amendment right to provided counsel at petitioners bail review hearing. A bail review hearing, such as the one that took place here, is not normally a critical stage of trial. We do not find that a proceeding, the purpose of which was merely to review bail and inform petitioner of the scheduled date for his preliminary hearing, was an adversary judicial criminal proceeding that would require the aid of provided counsel. Because petitioners bail review hearing was not a critical stage of the merits trial, there existed no Sixth Amendment right to provided counsel at that time. 381 Md. at 26.