Court adopts rule on lawyers at bail review

ANNAPOLIS – Maryland‘s top court has adopted a procedural rule for providing public defenders to indigent defendants at bail review hearings.

The Court of Appeals’ rule, which took effect last Tuesday, follows the enactment last month of House Bill 261, which amended a law the high court had interpreted as requiring that counsel be provided even earlier in the legal process: when a defendant is first brought before a District Court commissioner and bail is initially set.

Lawmakers had balked at the Court of Appeals’ broad interpretation of the Public Defender Act in January, when Maryland Public Defender Paul B. DeWolfe told them the state’s cost of providing representation at approximately 177,000 annual bail hearings would be $28 million.

The legislators opted instead to require counsel at the bail review hearing, which generally occurs 24 hours after the initial hearing. The law, which went into effect June 1, bars prosecutors from using against the defendants anything they said before a commissioner without an attorney present.

Only three Maryland jurisdictions had already provided public defenders at bail-review hearings: Baltimore City and Montgomery and Harford counties.

“It’s a great move forward for indigent defendants across the state,” DeWolfe said Tuesday of the amended law and the court’s new rule.

DeWolfe added he has no updated figures on the state’s cost to provide representation at the 35,000 additional bail-review hearings annually statewide. In January, he put that cost at about $3.8 million.

Under the new rule, judges at bail-review hearings must tell defendants they have a right to counsel and that an attorney can be helpful in advocating for pre-trial release on their own recognizance or for bail with minimal conditions or restrictions.

The General Assembly‘s amendments to the Public Defender Act, which led to the new rule, was spurred by the Court of Appeals’ Jan. 4 decision in DeWolfe v. Richmond requiring that public defenders be provided at initial bail hearings.

That 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 placed in custody, which could be 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 this January.