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Court of Appeals postpones lawyers-at-bail order

With just hours to spare, Maryland’s top court has decided to wait almost two weeks before ordering that public defenders be provided to indigent suspects when a court commissioner sets their bail.

The Court of Appeals’ order, which was to be issued Friday, will not be issued until Feb. 16 at the earliest. The order, or mandate, gives effect to the top court’s Jan. 4 ruling that criminal defendants have a statutory right to counsel at initial bail hearings.

The postponement will give the court a chance to consider motions from the state public defender and attorney general to delay implementation of the ruling in DeWolfe v. Richmond.

It will also give the court time to consider and vote on proposed procedures for implementing the forthcoming order, said retired Court of Appeals Judge Alan M. Wilner, who chairs the Maryland Judiciary’s Standing Committee on Rules of Practice and Procedure.

The rules, which the committee approved Friday and sent to the court, state that a public defender “may provisionally represent” a defendant at an initial bail hearing and withdraw that representation afterward if the defendant is later found to be ineligible for free counsel.

The high court has scheduled a hearing and a possible vote on the proposed rules and procedures for Feb. 16.

Maryland Public Defender Paul B. DeWolfe, in his motion for reconsideration, is urging the court to put off implementation of the order for at least 180 days, or until early August. The delay is needed to give the office an opportunity to coordinate the logistics and funding needed to implement the order, he stated in the motion.

DeWolfe, who supports the right to counsel at initial bail hearings, has said it would cost $28 million to provide for public defenders at the 177,000 annual initial bail hearings statewide.

DeWolfe’s argument for reconsideration is similar to one the high court rejected in its Richmond decision.

“The public defender’s asserted defense of budgetary impracticability, though evidently pertinent in many contexts, is not a proper consideration for the judiciary,” Judge Mary Ellen Barbera wrote in the court’s majority opinion. “We cannot declare that [defendants] have a statutory right to counsel at bail hearings and, in the same breath, permit delay in the implementation of that important right and thereby countenance violations of it, even for a brief time.”

Attorney General Douglas F. Gansler’s motion for reconsideration is on procedural grounds. He said the Richmond decision did not expressly call for implementation but merely affirmed a decision of the Baltimore City Circuit Court. The high court, therefore, must issue a notice of the forthcoming order, Gansler’s motion said.

Legislation proposed

Under the Court of Appeals’ procedures, orders are generally issued 30 days after a decision, which in the Richmond case would have been Feb. 3.

The 180-day delay DeWolfe seeks would also enable the General Assembly to consider and pass pending legislation that would amend the state Public Defender Act and remove its requirement — as stated by the high court in Richmond — that public defenders be provided to indigent defendants at initial bail hearings.

Pending legislation in the state House and Senate would soften the blow to criminal defendants by expressly giving them the right to counsel at bail review hearings, which occur the first business day after the initial hearing. Three Maryland jurisdictions regularly provide public defenders at these reviews: Baltimore City and Montgomery and Anne Arundel counties.

The Senate Judicial Proceedings Committee is scheduled to hold hearings Wednesday on two such measures: Senate Bill 422, sponsored by committee chair Sen. Brian E. Frosh, D-Montgomery; and SB 165, sponsored by Sen. Richard F. Colburn, R-Eastern Shore.

The House Judiciary Committee held hearings Tuesday on the two bills in that chamber: House Bill 261, sponsored by committee chair Del. Joseph F. Vallario Jr., D-Prince George’s and Calvert, and HB 112, sponsored by Del. Michael A. McDermott, R-Wicomico and Worcester.

The Richmond litigation began in November 2006 in Baltimore City Circuit Court on behalf of 11 indigent defendants. The class action challenged procedures at the city’s Central Booking and Intake Facility, where a District Court commissioner sets the initial bail.

Judges then hold bail review hearings on the first business day after a defendant is in custody, which could mean a Monday if a defendant is arrested on Friday.

A circuit court judge originally granted summary judgment for the state, but the Court of Appeals sent the case back in March 2010 with instructions to add the public defender as a party.

That October, Judge Alfred Nance ruled there was a right to counsel, a decision the Court of Appeals affirmed last month.