Dominique Strauss-Kahn, the managing director of the International Monetary Fund and an expected candidate for president of France, was arrested in New York City and charged with sexually assaulting a housekeeper at his hotel.

Judge Melissa C. Jackson, supervising judge of the Manhattan Criminal Court denied Strauss-Kahn bail at a hearing, Monday on the basis that he is a flight risk. The judge took note of the fact that he was arrested while on an Air France airplane within moments of departure. But the planned trip had been planned for some time and he had appointments with European leaders this week. Furthermore it is hard to see how he could escape. He is recognized worldwide and hiding would be difficult. He has volunteered to surrender his passport and United Nations travel documents. He has a daughter in New York City and he agreed to stay with her while the case was pending.

But even if he is not a flight risk bail could be denied. The other reason a court can deny bail is that the defendant is a danger to society. There is evidence that the housekeeper is not the first person he has sexually assaulted. If this holds up the judge could have found him dangerous and denied bail on that ground.

A Maryland judge ruled that defendants have a right to be represented by counsel at the initial setting of bail.

In Rothgery v. Gillespie County, Texas, the Supreme Court held, “a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction,marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.”

In Maryland bail is decided by a commissioner. The hearings are not held in a courtroom. Nor are they transcribed or recorded making appeals difficult if not impossible. But as the trial judge stated:

“Ultimately, the initial bail hearing determines whether a defendant will be allowed to retain, or forced to surrender, his liberty during the pendency of his criminal case,”

As a result the court found sufficient similarities to Rothgery where not only was counsel not appointed prior to a bail hearing but no counsel was appointed until after the indictment. In both cases, however, the defendants were denied their liberty without counsel being appointed in violation of the Sixth Amendment.