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Court of Appeals delays bail counsel rule

ANNAPOLIS — Maryland’s top court has effectively decided to hold off on ordering that public defenders be provided to indigent suspects at initial bail hearings until the General Assembly acts on legislation that could make such an order moot.

Chief Judge Robert M. Bell

The Court of Appeals on Thursday considered but deferred a vote on proposed rules regarding how district court commissioners and public defenders could coordinate such legal representation at the proceedings when a commissioner first sets a defendant’s bail.

Adoption of rules is necessary for implementing the order, which has been officially stayed by the court since Feb. 3. The order would give effect to the high court’s Jan. 4 ruling that criminal defendants have a statutory right to counsel at initial bail hearings.

The court’s postponement in adopting rules, and thus in issuing an order, will also give the judges a chance to consider motions from the state public defender and attorney general to delay implementation of the ruling in DeWolfe v. Richmond, said Chief Judge Robert M. Bell.

The high court’s decision not to vote concluded an hour-long hearing on the proposed rules. Such hearings on proposed rules of judiciary procedure generally end with the court’s vote of approval — but not this time.

“We’ll just say, ‘We’ll defer it,’” Bell said.

The proposed rules contain a provision to permit a public defender to “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.

Alan M. Wilner, who heads the Maryland Judiciary panel that developed the rules, told the high court that provisional representation would be necessary because even wealthy people can appear destitute after being arrested and brought before a commissioner.

“If he [the arrestee] ever had any money on him, the police have taken it away from him,” said Wilner, a retired Court of Appeals judge and chair of the Standing Committee on Rules of Practice and Procedure.

Del. Tiffany T. Alston, who testified in favor of the rule as a private citizen, said the court’s decision to defer adopting rules deprives lawmakers of judicial guidance and will make it more difficult for the General Assembly to pass legislation in response to the Richmond decision.

“We would have known what direction to move in,” said Alston, D-Prince George’s.

Legislation under consideration in the Senate (Senate Bills 422 and 165) and House of Delegates (House Bills 261 and 112) 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.

The legislation 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.

Maryland Public Defender Paul B. DeWolfe, in his pending motion for reconsideration, is urging the court to put off implementation of the order 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. That price tag has spurred the legislative efforts to remove the requirement of counsel at initial bail hearings.

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.

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.

One comment

  1. To all you indigent arrestees out there hoping to have a lawyer at bail good news: Maryland’s highest court says you have an absolute right to a public defender at bail. The Public Defender himself says you have an absolute right to a public defender at bail. The bad news: You’re just not getting one.