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Joseph Vallario
House Judiciary Chairman Joseph F. Vallario Jr. (The Daily Record/Maximilian Franz)

The road to bail reform runs through the House Judiciary Committee

ANNAPOLIS — Joseph F. Vallario Jr., powerful chairman of the House Judiciary Committee, wishes Maryland’s top court had never ruled that criminal suspects have a state constitutional right to counsel when their bail is first set or denied.

“I’d like for the case to go away and go back to the old system where you got two bites at the apple,” said Vallario, D-Prince George’s and Calvert.

The chairman, a veteran criminal defense attorney, was referring to Maryland’s current system, under which people who are arrested have an initial appearance before a district court commissioner and, if placed in pretrial custody, go before a judge for a review hearing within a few days’ time.

Lawmakers are hustling to come up with alternatives now that the Court of Appeals has said it will not rescind its Sept. 25 decision, DeWolfe v. Richmond, but will delay implementation for a few months to see what the legislature does this session.

Vallario, whom critics accuse of tabling bills he does not like, said he would not be obstructionist in the committee’s consideration of Richmond-related proposals.

“They’ve got their own votes and their own opinions of what should happen,” Vallario said of the committee’s other 21 members.

Vallario said Tuesday that he has considered introducing a constitutional amendment to undo the right to counsel at initial bail hearings. But he added the likelihood of the amendment’s passage would be slim.

So, Vallario said he accepts that the court’s decision has essentially forced the General Assembly to weigh legislative options that would end initial appearances before commissioners.

Preserving the initial bail hearing system would be too expensive, with the state public defender’s office saying it would cost at least $28 million annually to keep lawyers on call at the 177,000 initial hearings annually, he added.

Vallario himself is sponsoring legislation he said would alter the conduct of initial bail hearings in a way that would strip commissioners of judicial discretion, removing a basis for the constitutional right to counsel that the high court announced.

House Bill 1186 would require commissioners to release people after arrest, on their own recognizance, if they have never disobeyed a court order to appear and are being charged with a minor crime, including crimes punishable by up to one year in prison, indecent exposure or malicious destruction of property.

Commissioners would be statutorily bound to detain all other arrestees, who would be taken “without unnecessary delay” before a judge in district or circuit court, under the legislation.

The judge would then determine if a detained arrestee should be released, assessed bail or held in custody pending trial. The detainee would have a right to counsel at these proceedings before a judge.

Vallario sees problems with another proposal, under serious consideration in both houses, which would replace initial appearances before a commissioner with an objective risk assessment mechanism that would assess whether an arrestee should be released on his or her recognizance, assessed bail or held in custody prior to trial.

The chairman called it inappropriate to replace a court officer with a formula.

“I think someone with court authority should be releasing people to the community,” Vallario said, though he added that commissioners or judges could use the objective assessments to guide their pretrial-release decisions.

Vallario’s comments came one week after the Court of Appeals stayed enforcement of the Richmond decision until 4:30 p.m. June 5 to give the General Assembly a chance to enact legislation in response to the ruling. The General Assembly’s session ends April 7, and the court has scheduled oral arguments for May 6 on what enforcement order the judges should issue in light of the legislature’s action or inaction this session.

Separately, the chairman and private criminal defense lawyer is fighting the public defender’s office on another front: his proposal for a two-step method to ensure that the public defender is representing only clients who are truly indigent. Vallario has introduced legislation for the second straight year that would require the public defender’s office to withdraw its representation of a defendant after a bail hearing, unless the defendant has been placed in custody pending trial.

Defendants who are released, on bail or on their own recognizance, would have to reapply for representation by the public defender’s office under House Bill 1277.

Maryland Public Defender Paul B. DeWolfe has denounced that measure, which died in the General Assembly last session, as a violation of a defendant’s right to effective counsel. Legal representation suffers when it is interrupted and another lawyer takes over the case, DeWolfe said.