Leave bail ruling alone, advocates urge court

Attorneys for indigent defendants on Tuesday assailed Attorney General Douglas F. Gansler’s call for Maryland’s top court 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, lawyers Michael Schatzow and Mitchell Y. Mirviss also took aim at Gov. Martin O’Malley and General Assembly leaders who have publicly called on the judges to reverse their Sept. 25 decision in the case, DeWolfe v. Richmond.

Senate President Thomas V. Mike Miller Jr., D-Prince George’s and Calvert, and House Speaker Michael E. Busch, D-Anne Arundel, with O’Malley, have objected to the logistical problems and expense of complying with the ruling. Maryland Public Defender Paul B. DeWolfe has estimated it would cost the state $30 million annually to have attorneys on call at the 177,000 initial bail hearings conducted statewide.

At a news event in January, O’Malley, Miller and Busch all expressed the hope that the court would change its mind. They noted that the case was decided on a 4-3 vote, that the majority included two retired judges, and that the current chief judge wrote the dissent.

Schatzow and Mirviss urged the high court to hold fast to its five-month-old decision in the face of this opposition.

“The finality of the court’s judgments, particularly its rulings on vital constitutional rights, should not be questioned and overridden so readily, not even if it is prominent politicians who are leading the charge to roll back and repeal the vital, hard-fought constitutional rights of indigent Marylanders to liberty,” the lawyers wrote.

They added the court’s integrity would be subject to question if the judges failed to respect their own precedent, under the doctrine of stare decisis, and instead overturned a decision so recently made.

“Stare decisis is a cornerstone of the law,” wrote Schatzow and Mirviss, both of Venable LLP in Baltimore. “Without it, the court’s rulings lack finality and prominence. Issues are not resolved, and litigants are encouraged to relitigate issues as the composition of the court changes. The law becomes mutable and soft, and cynicism toward the court and its decisions hardens.”

The 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 DeWolfe decision.

The case, which the court will hear Friday, is Clyburn v. Richmond, No. 105, September Term 2013.

Gansler, in papers filed at the high court on Feb. 18, said the court was wrong to hold that the Maryland 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.”

The court’s September 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.

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 and House Judiciary committees have held hearings to consider proposals in response to the decision.

When the case was decided in September, 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.

Schatzow and Mirviss, in their high court filing, said decisions by the Court of Appeals should not change as its membership changes.

“Changed conditions that might justify overturning precedent do not include a different composition of the court,” they wrote.

“Nor is it enough that current members of the court believe an earlier decision of the court to be unfair or wrongly decided,” they added. “[S]tare decisis may be rejected only in extraordinary circumstances.”

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