Please ensure Javascript is enabled for purposes of website accessibility

In a hurry? Just waive your rights

Legislation that could encourage defendants to waive their right to counsel at initial bail hearings before District Court commissioners has been introduced in the Maryland General Assembly.

Sen. Robert A. “Bobby” Zirkin

“You have the right to counsel available to you,” the bill’s sponsor, Sen. Robert A. “Bobby” Zirkin, said. (The Daily Record/Maximilian Franz)

The measure, Senate Bill 748, would essentially limit to 9 a.m. to 5 p.m., seven days a week, the regular on-duty time of District Court commissioners for all initial bail hearings, including those in which the defendant has requested a public defender.

Currently, commissioners are available around the clock. Under the bill, they would be available outside business hours only for defendants who waive their right to counsel or are represented by private attorneys.

“You have the right to counsel available to you,” the bill’s sponsor, Sen. Robert A. “Bobby” Zirkin, said. “You may have to wait 12 hours (to see a commissioner). Or you can waive your right to counsel and do it [see a commissioner] quickly.”

Zirkin, D-Baltimore County, introduced the measure in response to the Maryland Court of Appeals’ September decision that defendants have a right to counsel at all judicial proceedings that can result in incarceration, including initial bail hearings before a commissioner.

But law professor Douglas Colbert said Zirkin’s proposal would lead to the “unequal treatment” of defendants who can afford an attorney and those who cannot — a disparity the constitutional right to counsel and the court’s decision were intended to prevent.

“The group with private counsel will be able to be represented,” said Colbert, who directs the University of Maryland Francis King Carey School of Law’s Access to Justice Clinic and is part of the legal team representing low-income defendants seeking counsel at initial bail hearings. “The indigent defendant must surrender a right to counsel in order to see a commissioner sooner.”

Zirkin said his proposal would save the state much of the nearly $30 million that Maryland Public Defender Paul B. DeWolfe predicted it will cost his office annually to comply with the high court’s decision and provide counsel at the 177,000 initial bail hearings conducted around the clock statewide. Public defenders would be required only during business hours under the measure.

“You’re not going to have a public defender there 24 hours a day, seven days a week” Zirkin said of his bill. “The system was never designed for that.”

The Senate Judicial Proceedings Committee, on which Zirkin sits, has scheduled a hearing on the measure for Feb. 19.

Sen. Brian E. Frosh, who chairs the committee, has also introduced legislation in the wake of the Maryland high court’s Sept. 25 decision in DeWolfe v. Richmond.

Frosh’s measure, Senate Bill 973, would create pre-release trial programs in Baltimore City and each county that would determine if the defendant qualifies for pre-trial release. Defendants who do not qualify for pre-trial release would be taken before a judge, not a commissioner.

Pre-trial release would not be available for violent crimes, including domestic violence, and sexual offenses.

Zirkin said Frosh’s legislation might be too much too soon because it would drastically change the state’s pretrial detention program without careful enough review.

“It would be foolish to try to overhaul the criminal justice system as we know it in the next two months,” Zirkin said, referring to the time left in this year’s General Assembly session. “There should be no rush. We should be moving slowly and deliberately. The most important thing is public safety.”

Frosh responded that, though changes to the pre-trial release system should not be made hastily, the groundwork can be set this session for a program that expedites the release of defendants who need not be incarcerated prior to trial.

“It will take time to set up and organize and I think we can figure that out during the legislative process,” said Frosh, D-Montgomery. “It will make the administration of justice better.”

The Court of Appeals has placed on hold implementation of its decision requiring state-appointed counsel at initial bail hearings pending its consideration of the state’s appeal of Baltimore City Circuit Judge Alfred Nance’s January order that attorneys be provided for indigent defendants.

The high court has scheduled oral arguments for March 7 in that case, Ben C. Clyburn et. al v. Quinton Richmond et al., No. 105, Sept. Term 2013.

A decision is expected by Aug. 31.