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Joseph F. Murphy
Retired Court of Appeals Judge Joseph F. Murphy (The Daily Record/Maximilian Franz, file)

Former Court of Appeals judge weighs in on lawyers at bail proposal

A retired Court of Appeals judge is backing a proposal by one state senator that would allow defendants to waive their right to counsel at hearings where bail is set.

“Given the rights that defendants are entitled to waive, I conclude that the defendant cannot be prohibited from waiving his or her right to counsel at the defendant’s initial appearance before a District Court commissioner,” Joseph F. Murphy Jr., now an attorney at Silverman, Thompson, Slutkin & White, wrote in a March 24 letter to Sen. Robert A. “Bobby” Zirkin. I understand that the Rules Committee has arrived at a similar conclusion, and has approved of a proposed rule that will allow the defendant to waive the right to an attorney at the defendant’s initial appearance if the District Court commissioner “finds that the waiver is knowing and voluntary.”

In the letter, obtained by The Daily Record, Murphy thanks Zirkin for requesting his opinion on the matter, though Zirkin says it was not a paid consulting arrangement.

The right to waive counsel is a key part of Zirkin’s proposal, which would set a predetermined bond fee schedule for some defendants. Other defendants who fall outside the schedule would be required to appear before a judge for a bail hearing and at that time could waive the right to counsel.

Murphy, in his letter, also strongly rejects a counter proposal favored by some legislators including Sen. Brian E. Frosh and Kathleen M. Dumais, that would create a risk assessment tool that would decide which defendants are to be released and which are held.

‘I also understand that the General Assembly is considering whether the DeWolfe v. Richmond “problem” can be solved by transferring the pretrial release determination from the Judicial Branch to the executive branch, and by using a “risk assessment” tool to identify defendants who should be released pending trial,” Murphy writes. “The decision to initiate criminal charges is an executive branch decision. The decision to arrest a defendant, however, requires a determination of whether that defendant should be detained pending trial, or whether that defendant should be released on one or more conditions of release. In my opinion, those determinations must be made by a judicial officer.”

The letter is the latest twist in a legislative effort to resolve issues surrounding the Court of Appeals landmark decision in DeWolfe v. Richmond establishing the right to counsel when bail is set. The court has temporarily delayed implementation of the decision pending General Assembly action.

Legislators are attempting to resolve the issue without hiring additional public defenders which could cost an estimated $30 million annually.

Legislators from the House and Senate have been meeting in a work group to draft and pass a bill before the session ends on April 7.

Murphy weighs in on attorneys at bail proposals