Maryland’s Transcript Trap: How Miller v. Smith and Feng v. Chen Expose Access-to-Justice Failures

When Americans think about “access to justice,” most assume it means having a fair chance to appeal if a court gets something wrong. But in Maryland, as two major cases show, that “access” often depends less on justice and more on whether you can afford to pay for a court transcript—or submit yourself to the government’s preferred lawyer.

Miller v. Smith (1997): Choosing Between Your Lawyer and Your Rights

In Miller v. Smith, indigent defendant Bernard Eric Miller faced a choice that should trouble anyone who believes in equal protection under the law: either take a government-appointed public defender or lose your right to a free transcript needed for appeal. Miller had pro bono private counsel, but under Maryland Rule 1-325(b), transcripts were only covered if the defendant applied for a public defender. His refusal meant no transcript, no appeal, and a dismissed case.

The U.S. Court of Appeals for the Fourth Circuit ultimately upheld Maryland’s system, reasoning that indigent defendants have no absolute right to “counsel of choice.” The state could condition transcript access on using its own lawyers, supposedly to save money. But the practical effect was chilling: pro bono attorneys willing to serve the poor were discouraged, while the state grew its bureaucratic empire.

In short, Maryland punished defendants for refusing the state’s monopoly on indigent defense, even when volunteer lawyers were ready to step in at no cost.

Feng v. Chen (2024): A Modern Echo in Civil Court

Fast forward nearly three decades, and the same transcript trap reappears—this time in civil family law. In Feng v. Chen, a self-represented woman lost her divorce appeal because she couldn’t pay for thousands of dollars’ worth of hearing transcripts. Only after the Supreme Court of Maryland intervened and pointed to a brand-new Administrative Office of the Courts (AOC) subsidy program was her case revived.

The message? Without government-approved financial help, access to appellate review is still locked behind a paywall. Families, fathers, mothers, and ordinary citizens trying to represent themselves in divorce or custody battles risk losing their appeals before they even begin—because of paperwork and transcript fees.

Why This Matters

Right-of-center Americans should be alarmed by how Maryland structures this system:

• Government Monopoly: By tying transcript costs to public defender representation, the state strengthens its monopoly and weakens civil society. Volunteer lawyers—often faith-based or local community advocates—are sidelined.
• Hidden Taxes on the Poor: Transcript fees (often $5–$10 per page) can run into thousands of dollars. For many, that’s the equivalent of a month’s rent or more. When appeals die for lack of transcripts, it amounts to a quiet tax on the indigent.
• Bureaucratic “Solutions”: Instead of addressing the root problem—why transcripts are so costly in the first place—Maryland creates new subsidy programs that only expand court budgets and administrative staff.

The Bigger Picture

These cases are not just about legal technicalities. They expose how government systems prioritize control over fairness: funneling indigent defendants into state-appointed lawyers, dismissing appeals for self-represented litigants, and then congratulating themselves for “new programs” that paper over the injustice.

Real reform would mean lowering transcript costs through modern technology (digital recordings, AI transcription), expanding the role of private and pro bono counsel, and stopping the practice of making access to appeals contingent on obedience to state-controlled legal services.

Maryland courts have long spoken of “access to justice.” But as Miller and Feng show, that phrase too often means access on the government’s terms—or no access at all.

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