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Hearing: Judges, not commissioners, would set bail on work days

Court commissioners should set bail for criminal defendants only on weekends and holidays, the state judiciary proposed Monday as a cost-saving way to comply with a high-court decision finding that detainees have a constitutional right to counsel at the initial proceedings.

David Weissert and Ben Clyburn

David W. Weissert, left, and Chief Judge Ben C. Clyburn speak at the Bail Task Force Hearing in the House Judiciary Committee hearing room in Annapolis, Monday, Jan. 6, 2014. (Maximilian Franz/The Daily Record)

Under the judiciary’s plan, defendants would be entitled to one bail hearing before a Maryland District Court judge during the work week, within 24 hours of being taken into custody.

Commissioners, who now conduct all initial bail hearings, would continue to do so on weekends and holidays — when judges are not available — to be followed by a bail review hearing on the next court day, said Chief Maryland District Court Judge Ben C. Clyburn. Clyburn presented the proposal Monday to a task force examining ways the state can comply with the Court of Appeals’ September decision.

The proposed move to a single bail hearing during the week would eliminate the inefficient and expensive system that “provides for two duplicative hearings, often within 12 hours of one another, for more than 80,000 defendants a year, to resolve the same issue – pretrial confinement or release – in accordance with the same legal criteria and often on the same evidence,” Clyburn told the Task Force to Study the Laws and Policies Relating to Representation of Indigent Criminal Defendants by the Office of the Public Defender.

“Is that prudent use of our resources?” Clyburn said, referring to the dual system. “On its face the answer is ‘no.’”

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 is held until a bail review hearing is held, usually within 24 hours.

Under the due-process provision of the Maryland Constitution, defendants have a right to counsel in any proceeding that may result in the defendant’s incarceration — including an initial bail hearing, the Court of Appeals held last September in its 4-3 decision in DeWolfe v. Richmond.

Maryland Public Defender Paul B. DeWolfe estimated after the ruling that it will cost between $28 million and $30 million to have attorneys on call at 177,000 initial bail hearings annually statewide.

Clyburn, noting DeWolfe’s concern, called the judiciary’s proposed elimination of the bifurcated system during the week “fiscally responsible.”

He also voiced hope that the General Assembly would approve the addition of 12 additional judges to preside over the initial bail hearings that would occur in court, rather than before the commissioner.

Clyburn also said that circuit court judges might have to be assigned, or “cross designated,” to preside over bail hearings to accommodate the additional number.

The judiciary also proposed expediting bail hearings by holding more of them by videoconference so the defendant need not be transported to the courthouse.

The proposal would cost about $6 million, including $3.6 million for the additional judgeships and support staff; $1.9 million for the expansion of videoconferencing; and $514,000 for additional court space, Clyburn said.

Del. Joseph F. Vallario Jr., who chairs the influential House Judiciary Committee, said Monday that he prefers the current bifurcated system of a bail hearing and review. But he added he recognizes the financial strain maintaining the two-tier system would have on the state’s coffers following the high court’s decision in DeWolfe v. Richmond.

“I was always in favor of two bites at the apple” for defendants, said Vallario, D-Prince George’s and Calvert, who serves on the task force.

“We can’t afford a lawyer at two places,” Vallario added. “We can afford one lawyer, one time.”

Vallario, however, said he remains deeply opposed to holding bail hearings by videoconference.

The justice system must make “sure that a defendant has the ability to face a judge when he is being detained,” added the delegate, who also handles criminal defense work as an attorney in private practice.

The judiciary plans to present its proposals and supporting budget in legislation this General Assembly session, which begins Wednesday.

Separately, the task force last month voted to adopt a subcommittee’s recommendation to eliminate the current system of cash- and surety-based bail and replace it with one that ranks defendants on their public safety risk and whether or not they are likely to show up in court.

The lowest-risk defendants would be released without condition. A second tier of higher-risk defendants would be released with conditions that could include supervision or drug treatment. A third tier of defendants would be ineligible for release under any circumstance.

The proposal presented Monday by the judiciary did not include any comment on that recommendation.