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Public defender seeks dollars, not delay in lawyer-at-bail mandate

The state public defender will not seek to delay the effect of a high court decision that criminal defendants have a constitutional right to counsel at initial bail hearings, a ruling that could require the state to pay $28 million annually to provide the legal assistance.

Maryland Public Defender Paul B. DeWolfe initially considered seeking a stay of the mandate in the counsel-at-bail case, but based on past experience, concluded the Court of Appeals would deny such a request.

Maryland Public Defender Paul B. DeWolfe initially considered seeking a stay of the mandate in the counsel-at-bail case, but based on past experience, concluded the Court of Appeals would deny such a request.

Maryland Public Defender Paul B. DeWolfe’s decision clears the way for the Court of Appeals’ decision, issued Sept. 25, to go into effect on Oct. 25. As of that date, the Maryland Office of the Public Defender will be required to provide counsel at the 177,000 initial bail hearings across the state annually.

DeWolfe said he has been meeting with representatives from the state Department of Budget and Management to get the additional funds necessary to implement the mandate, as well as to ensure that adequate funding is included in Gov. Martin O’Malley’s budget proposal for fiscal 2015, which begins July 1.

The public defender’s entire budget is $94 million this fiscal year. DeWolfe placed his office’s cost of providing public defenders at initial hearings at $28 million per year, representing an increase of more than 250 attorneys.

“It’s a constitutional right so there are very few things that can be done other than a full implementation of the right to counsel at these initial appearances,” DeWolfe said. “It is our obligation as the indigent-defense agency to comply.”

Sen. Edward J. Kasemeyer, who heads the Senate Budget and Taxation Committee, said legislators will give serious consideration to the public defender’s request for more money in fiscal 2015 to meet the constitutional requirement.

“It’s going to require more money,” said Kasemeyer, D-Howard and Baltimore counties. “It’s going to be a big number.”

Attorney Douglas Colbert, who urged the top court to find a constitutional right to counsel, directs the Access to Justice Clinic at the University of Maryland Francis King Carey School of Law. He said he would be willing to have his students assist the public defender’s office in representing indigent defendants at the initial bail hearings.

“I think it’s an idea worth pursuing,” Colbert added.

Daniel Shemer, who co-directs the Criminal Practice Clinic at the University of Baltimore School of Law, said several of his students already are placed in the public defender’s office, which may assign them to initial bail hearings.

DeWolfe said he would welcome the students’ assistance.

“We’ll take all the help we can get,” he added.

Meanwhile, Chief Maryland District Court Judge Ben C. Clyburn has named Judge John R. Hargrove Jr. to head a new Judiciary Task Force on Pretrial Confinement and Release. The panel will examine recommended rule changes for implementing the court’s decision that the Constitution requires counsel at initial bail hearings.

“This is a timely issue that all respective branches of government are examining, and to assume a leadership role at this time is exciting,” Hargrove, a district court judge in Baltimore, said in a statement.

At the initial hearings, district court commissioners set bail or release defendants on their own recognizance. If bail is set but cannot be paid, the defendant is sent to jail, where he or she remains until a bail review hearing is held, usually within 24 hours.

The 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.

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 under state law, a decision the Court of Appeals affirmed in January 2012. The Court of Appeals did not reach the constitutional question at that point.

However, the General Assembly then amended the law, leading the court to hear argument on the constitutional claim this January.

Hours after the high court issued its decision last months, DeWolfe said a request for a stay might be in the offing, to give his office time to secure funding from the General Assembly.

DeWolfe said Wednesday that he later concluded the Court of Appeals would deny such a request, as it said it would do after the January 2012 decision.

“The court was very clear that … the right exists and if the right exists, it is not up to them to decide how it’s going to be implemented.” DeWolfe said.