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 defendant’s 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 defendant’s 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 defendant’s 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 defendant’s 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

i 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 petitioner’s

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

petitioner’s 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

petitioner’s 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.