Gansler files to overturn bail ruling

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Maryland Attorney General Douglas F. Gansler urged Maryland’s top court Tuesday to overturn its landmark decision that arrestees have a state constitutional right to counsel at initial bail hearings.

In papers filed with the Court of Appeals, Gansler said the court was wrong to hold that the constitution’s due-process provision requires defendants to be provided counsel at this pre-trial stage. A defendant’s liberty is not directly at stake in an initial hearing, as it is in a bail review hearing before a judge and at trial, when counsel is constitutionally mandated, he added.

“An initial appearance conducted in accordance with the existing rules does not affect the fairness of the trial or impair the defendant’s ability to defend on the merits,” Gansler wrote. “Instead, for most arrestees, the initial appearance principally serves to enhance liberty, by providing an early opportunity for release from custody after an arrest.”

Gansler’s filing came as the high court prepares to hear the state’s argument that a Baltimore City Circuit Court judge improperly ordered that attorneys be provided for indigent defendants at initial bail hearings. Judge Alfred Nance handed down the order last month, citing the high court’s Sept. 25 decision in DeWolfe v. Richmond that defendants have a right to counsel at initial bail hearings.

The Court of Appeals has scheduled arguments in the case for March 7. The case is Ben C. Clyburn et al. v. Quinton Richmond et al., No. 105, September Term 2013.

“This appeal presents an opportunity for this court to correct a mistake,” Gansler wrote. “The court’s declaration … of a right to have counsel present at the initial appearance does not advance any of these fundamental constitutional guarantees” of due process, he added.

“The initial appearance before a commissioner involves the setting of temporary conditions of release,” Gansler wrote. “There is a presumption that a defendant will be released on personal recognizance or bail … and commissioners accordingly release nearly half of all arrestees without the assistance of counsel; these defendants do not appear before a judge. For the remaining arrestees, the temporary conditions of release are in effect only until a judge makes an independent bail determination, which must take place immediately after the appearance before the commissioner if the district court is then in session, or, if not, at the next session of the court.”

Attorneys for the indigent defendants in the case could not be reached for comment Tuesday night.

But in an earlier high-court filing, the lawyers urged the Court of Appeals to uphold Nance’s order and hold fast to DeWolfe v. Richmond, so recently decided.

The indigent defendants “should not continue to be thwarted indefinitely in receiving their constitutional right to counsel, and thereby securing their liberty where appropriate, while the long-term remedies continue to be debated by the policymakers,” attorney Michael Schatzow wrote with his co-counsel Mitchell Y. Mirviss, both of Venable LLP in Baltimore.

The high court should consider the state’s appeal “for the sole purpose of deciding how [the defendants’] constitutional rights can be honored as soon as possible,” the attorneys added.

The court’s 4-3 ruling in DeWolfe v. Richmond has prompted all three branches of government to examine ways the state can comply with the requirement that counsel be provided at initial bail hearings, a mandate that Maryland Public Defender Paul B. DeWolfe estimated could cost at least $28 million annually.

State and judiciary task forces, for example, have recommended the sharp reduction or elimination of initial bail hearings before District Court commissioners in favor of a single hearing before a judge. The Senate Judicial Proceedings Committee has scheduled hearings for Wednesday to consider proposals in response to the Richmond decision.

Meanwhile, Gov. Martin O’Malley, state Senate President Thomas V. Mike Miller Jr., D-Prince George’s and Calvert, and House Speaker Michael E. Busch, D-Anne Arundel, have voiced hope that the Court of Appeals would reconsider its right-to-counsel decision.

Miller noted last month that only two of the four judges in the majority in September are active members of the court.

The majority included judges Robert M. Bell, who was chief judge when the case was argued, and John C. Eldridge, another retired jurist Bell had specially assigned to the panel. Now-Chief Judge Mary Ellen Barbera wrote the opinion for the three dissenters.

Gansler, in his filing, stated that the court should overrule its decision and adopt “the sound reasoning of the dissenting opinion.”

He added that “the initial appearance, as the dissent correctly recognized … is ‘straightforward, guided by rule, and of limited duration’ and for those arrestees who do not obtain their release from the commissioner, an independent determination promptly follows, where the arrestee is represented by counsel.”

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