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Private bar may share bail work

Maryland District Court administrative judges would appoint private attorneys to represent defendants at initial bail hearings whenever the public defender’s office cannot provide the representation due to inadequate funding or staffing, under a proposal headed to the state’s top court.

Judge Alan M. Wilner, who chairs the Rules Committee, said the Court of Appeals might be willing to delay the effective date of DeWolfe v. Richmond until Nov. 21.

The appointed attorneys would be paid a reasonable fee, with the bill being sent to the state, according to the proposal from the Maryland Judiciary’s Standing Committee on Rules of Practice and Procedure.

The proposal is one of several the committee adopted Friday and sent to the Court of Appeals in the wake of DeWolfe v. Richmond, the high court’s September decision finding that criminal defendants have a constitutional right to counsel when bail is set by a court commissioner.

The Court of Appeals’ ruling is slated to go into effect on Oct. 25, but Judge Alan M. Wilner said the court could stay the effective date until Nov. 21, when it is scheduled to consider rules proposed by the panel. Wilner, a retired judge, chairs the Rules Committee.

The proposal was prompted by Maryland State Public Defender Paul B. DeWolfe’s stated concerns that his office lacks adequate funding and staffing to provide counsel at initial bail hearings this fiscal year, which ends June 30. This year’s budget of $94 million for the office was set before the court’s decision.

DeWolfe said providing counsel at initial bail hearings will cost his office $28 million annually.

“We’re going to have to have a hybrid system,” DeWolfe told the committee Friday, referring to the need for both public defenders and appointed private counsel. “We don’t have the resources to staff 24-7,” he added, noting that initial bail hearings are held all hours of the day and night.

At the hearings, district court commissioners set bail or decide to 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.

In its 4-3 decision, the Court of Appeals ruled that the Maryland Constitution’s due-process provision holds that the right to counsel “attaches in any proceeding that may result in the defendant’s incarceration,” including an initial bail hearing.

The committee’s proposal would require commissioners to tell unrepresented defendants at initial bail hearings of their right to counsel and that one would be provided if they could not afford one.

Baltimore County State’s Attorney Scott D. Shellenberger had unsuccessfully pressed the committee to require commissioners to tell defendants as well that their request for a lawyer “may cause a delay in conducting this hearing” as counsel is located.

Shellenberger said such a statement from commissioners could prevent delays at initial hearings, where a defense attorney is very often unnecessary.

For example, half of the 177,000 initial bail hearings statewide each year end with the defendants being released on their own recognizance, Shellenberger said. Lawyers are also unnecessary when a defendant is charged with homicide because commissioners are statutorily bound to deny bail in those cases, Shellenberger added.

But DeWolfe said a warning of possible delay from the commissioner would be improper because it could make a defendant feel compelled to waive his right to counsel.

“I see this as an avenue to coerced waiver,” DeWolfe told the committee.

Wilner prodded the panel to approve the proposed rules, noting that time is of the essence for the judiciary to set procedures for providing counsel at initial bail hearings.

“At some point, the mandate is going to be issued and the constitutional right is going to be there,” Wilner said. “We’ve got the DeWolfe opinion sitting there waiting to drop.”

The court originally held, in January 2012, that there was a statutory right to counsel at bail under the Maryland Public Defender Act. Motions for reconsideration were pending when the General Assembly amended the law last year.

The court then reheard argument on the constitutional question this January and issued its decision on Sept. 25.