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Top court won’t stay lawyers-at-bail ruling

Maryland’s top court said Wednesday it will not stay its landmark decision that criminal defendants have a constitutional right to counsel at initial bail hearings — but even so, it may have prolonged the seven-year legal fight between the accused and the state.

The Court of Appeals, in rejecting the state’s request for a stay, directed the Baltimore City Circuit Court to issue a declaratory judgment ordering the state to provide counsel for indigent defendants at initial bail hearings.

However, nothing in the high court’s decision stops the state from asking the circuit court for a delay based on the same argument Attorney General Douglas F. Gansler made in seeking the stay.

The state is reviewing the Court of Appeals’ order rejecting the stay and has not made a final decision on what action it will take, the attorney general’s office said.

In requesting the stay, Gansler said the General Assembly needs time to raise the additional $28 million that the Maryland Office of the Public Defender said it will need annually to have attorneys on call at 177,000 initial bail hearings statewide.

Chief Maryland District Court Judge Ben. C. Clyburn, who joined the stay request in the Court of Appeals, said he will not seek a further delay; instead, he will focus his energy on ensuring that the right to counsel at initial bail hearings is implemented by the District Court commissioners who preside at them.

“I’m not fighting anything,” Clyburn said Wednesday. “I am moving forward. We are ready to go.”

An attorney for the indigent defendants who have waged the seven-year fight said he is “delighted” the District Court will not seek delay.

“I assume that means they’re ready to implement immediately,” added the lawyer, Michael Schatzow of Venable LLP in Baltimore.

Schatzow noted that the Court of Appeals passed procedural rules Monday to ensure defendants are represented by counsel at initial bail hearings. The court, however, placed the rules on hold pending resolution of the Baltimore City Circuit Court litigation.

The rules, when implemented, will permit District Court administrative judges to appoint private attorneys if the public defender’s office is short-staffed.

The appointed lawyers would be paid a fee based on the Office of the Public Defender’s payment scale for panel attorneys — those the office hires when it cannot handle a case itself due to a conflict of interest or some other reason. The bill for services would be sent to the state.

The rules will also require commissioners to tell unrepresented defendants of their right to counsel and that an attorney will be provided if they cannot afford one.

The Maryland Judiciary’s Standing Committee on Rules of Practice and Procedure proposed the rules following the high court’s DeWolfe v. Richmond decision in September.

Maryland Public Defender Paul B. DeWolfe, a titular defendant in the case, said his office did not press for a stay and is not seeking any further delay.

“It is our responsibility as attorneys for indigent defendants to protect their constitutional rights,” DeWolfe added.

At the initial hearings, 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 said 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 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 commissioner sets the initial bail.

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 in January 2012.

The 2012 decision found 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, finding the right existed, on Sept. 25.