Independence in Maryland

In August of 2009, the Maryland state public defender was fired.  She served at the pleasure of a three-person board, and each of those three people were appointed to the board directly by the Governor.  After months of disagreement between the public defender and the board, they fired her on a 2-1 vote after she refused to implement cuts and reorganization demanded by the board that included increasing the caseload of staff public defenders, disbanding the capital defense and juvenile protection divisions, closing a community-oriented defender office in Baltimore, and firing an African-American division chief.

While reasonable minds might differ about the best way to effectively carry out the right to counsel in Maryland, the fact that the head public defender could be fired at will brought into stark relief the lack of independence from political pressures in Maryland’s system of public defense.  There could be no assurance that future chief public defenders would be able to maintain the office’s ethical duty to its clients to exercise independent professional judgment and maintain a zealous defense approach.  Any new public defender would face the same dilemma: comply with the mandates of the politically-appointed board or face losing the job.  NLADA reached out to key state legislators to talk about the need to restructure the public defender oversight board to meet national standards on independence.

On October 27, 2009, David Carroll, NLADA research director, was invited to testify before the Maryland State Senate Judicial Proceedings Committee. Carroll explained that the first of the ABA’s Ten Principles, and the NLADA standards upon which they rely, addresses the importance of independence.  It calls for the establishment of an independent oversight board whose members are appointed by diverse authorities, so that no single official or political party has unchecked power over the indigent defense function.  By contrast, Maryland’s existing statute established a three-person public defender committee appointed entirely by and serving at the pleasure of the Governor. Such unchecked power certainly gives the appearance of undue political interference and, worse yet, may result in terminating effective administrators.  The testimony was well-received with a number of legislators on both sides of the aisle agreeing that changes needed to be made to the  Board to ensure the independence of the public defense system.

In months following, various bills emerged, all looking to expand the make-up and appointing authorities of the new board.  One senate bill sought to expand the board to 11 members and share appointing authorities between all three branches of government, the state bar, and accredited law school deans.  A second senate bill would expand the board and follow national standards on duties and powers of the Board, but it gave undue influence to the Executive and Legislative branches.

NLADA was again asked to testify at a February 24, 2010 hearing on the two bills.  David Carroll opened his testimony by quoting Attorney General Holder’s speech at the DOJ Symposium on Indigent Defense that the Ten Principles are the “building blocks of a well functioning public defender system” and that one of the most pervasive issues facing indigent defense systems is “inadequate oversight.”  Carroll suggested that following the Ten Principles would lead to a middle ground position where the composition of the public defender board as laid out in one senate bill would be merged with the board’s powers and duties as crafted in the second.  The merged bills became the basis for SB 97.

On May 4, 2010, Maryland Governor Martin O’Malley signed into law Senate Bill 97, creating independence for the state’s public defender agency.  The legislation expanded the public defender board from three members all appointed by the Governor to a thirteen-member board selected by diverse authorities.  No sitting judges, prosecutors, or law enforcement employees may serve on the public defender board.  Following prevailing national standards, SB 97 requires that the chief public defender be appointed for a term of six years and only be terminated for just cause.  The legislation was passed on a near unanimous, bipartisan basis (Senate: 45-0; House: 137-4).  

NLADA’s technical assistance to legislators and local stakeholders (including the Maryland State Bar) helped to educate and guide policymakers throughout the entire process.  With NLADA’s assistance, Maryland’s public defender system is now overseen by an independent board, and the chief state public defender may operate free from undue political interference.

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Publication Date: 2010