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New bail rules ready, waiting

ANNAPOLIS — Maryland’s top court Monday approved procedural rules designed to ensure that defendants are represented by counsel at initial bail hearings; however, it delayed their implementation for an unknown amount of time.

The Court of Appeals said it will not implement the new rules at least until it can issue its decision on a request from the Maryland attorney general’s office, which has asked the court to stay its September decision that the state constitution gives defendants a right to counsel at initial bail hearings. The attorney general’s office said the executive and legislative branches need more time to figure out how to pay for the additional attorneys needed.

Law professor and attorney Douglas Colbert, who was on the team that urged the high court to find a right to counsel at bail, voiced confidence that the delay will be brief.

“We are moving closer to the day when poor people will have a lawyer to represent them at first appearances,” said Colbert, who directs the Access to Justice Clinic at the University of Maryland Francis King Carey School of Law.

The Court of Appeals’ decision to issue the rules subject to “further order of the court” followed a two-hour hearing during which Maryland Public Defender Paul B. DeWolfe said he is prepared to provide counsel at initial bail hearings, though it would cost his office an additional $28 million annually and require the appointment of private counsel, as stated in the pending rule.

Paul DeWolfe

Maryland Public Defender Paul B. DeWolfe estimates his office will need an additional $28 million annually to implement the court’s September decision. Photo shows DeWolfe at his former district public defender’s office in Montgomery county in 2009. (The Daily Record/Maximilian Franz).

“I would say it’s monumental, but it’s important,” DeWolfe said of the task of providing counsel. “We are ready willing and able to implement this decision.”

But Baltimore County State’s Attorney Scott D. Shellenberger and Montgomery County State’s Attorney John McCarthy urged the high court to stay implementation until July 1, which would give the General Assembly time to approve a budget to fund the right — or perhaps pass legislation eliminating initial bail hearings, and thus the need to provide counsel at them.

“We are facing a sea change in the criminal justice system,” Shellenberger said of the newly annunciated right. “We need time to figure this all out.”

Shellenberger said the state will suddenly transition from a system where public defenders need not be on call for any of the 177,000 initial bail hearings annually to being ready for all of them.

“This is a huge and monumental task,” he added.

McCarthy told the court that a “substantial likelihood” exists that the General Assembly will pass legislation next session to end the bail-setting hearing before the commissioner, and have bail set instead by the District Court judge who now reviews the commissioner’s determination.

“The incentive is financial,” McCarthy said, predicting that it would cost the state $500 million over the next 10 years to provide attorneys, additional security and other court-related expenses at initial bail hearings.

The pending rules call for Maryland District Court administrative judges to 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.

The appointed lawyers would be paid a fee based on the Office of the Public Defender’s payment scale for its appointed, or panel, attorneys. The bill would be sent to the state.

The rule would also require commissioners to tell unrepresented defendants of their right to counsel and that one would be provided if they could not afford one.

The Maryland Judiciary’s Standing Committee on Rules of Practice and Procedure proposed the rule following the high court’s September decision in DeWolfe v. Richmond, which found criminal defendants have a constitutional right to counsel when bail is set by a court commissioner.

At the initial 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 high 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 arguments on the constitutional question this January and issued its decision on Sept. 25.