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Zirkin draws fire with bid for constitutional change

Senate panel weighs bill to excise newly found right to counsel at bail

ANNAPOLIS — Criminal defense attorneys Tuesday sharply attacked a proposal to change the state constitution in order to undo the Maryland high court’s finding that the right to counsel attaches at the initial bail determination.

Ratification of the constitutional amendment “would allow people to suffer incarceration without representation,” attorney Michael Schatzow told the Senate Judicial Proceedings Committee. “This is not a meaningless right we’re talking about.”

Maryland Public Defender Paul B. DeWolfe added that the amendment, if ratified, would deny counsel “only to poor people,” as individuals of means can afford their own attorneys.

Sen. Robert A. “Bobby” Zirkin’s proposal, Senate Bill 1114, would amend the Maryland Constitution’s due process provision to state that it “may not be construed to grant a criminal defendant the right to counsel at an initial appearance before a district court commissioner.”

The Court of Appeals cited Article 24 of the Maryland Declaration of Rights in its Sept. 25 decision, DeWolfe v. Richmond. The court’s ruling sparked concern in the General Assembly from lawmakers concerned about the predicted $30 million it would cost the state annually to have attorneys on call at the 177,000 initial bail hearings held statewide each year.

In response, the Senate on Monday passed legislation to replace initial bail hearings before district court commissioners with a pretrial risk assessment computer program that would use several factors to assess an arrestee’s risk of offending or fleeing if released from custody before trial. People who are not released would have a bail hearing before a judge, generally within 24 hours, at which they would have the right to counsel.

That legislation, Senate Bill 973, also would require the suspect to be held pending judicial review if a police officer states under oath that he or she is a threat to public safety or a flight risk.

Zirkin, who opposes SB 973, said a constitutional amendment removing the right to counsel is unwelcome but necessary to prevent the state from replacing a judicial officer with a computer program, which he has likened to a robot.

“This [constitutional amendment] is a far better fix” to the Richmond decision, said Zirkin, D-Baltimore County. The amendment is a way of “overturning the problem that caused this in the first place,” he added, referring to the high court’s decision.

But Schatzow assailed the proposal as “reprehensible.”

“Maryland’s poor … are voiceless enough in the criminal justice system,” said Schatzow, who represented indigent arrestees asserting their right to counsel in the Richmond case. “You cannot incarcerate people without giving them the right to representation.”

Schatzow, of Venable LLP in Baltimore, said that if the Maryland constitution were amended, he would pursue the right to counsel for indigent arrestees under the U.S. Constitution’s Sixth Amendment right to an attorney.

Law professor Douglas Colbert called Zirkin’s proposal “dangerous” because it strips away a right that individuals have, whereas constitutional amendments generally add rights.

“You’re really flirting with a very dangerous path,” added Colbert, who directs the Access to Justice Clinic at the University of Maryland Francis King Carey School of Law.

DeWolfe, the nominal petitioner in the Richmond case, said he believed the last time rights were taken away by constitutional amendment was in 1919. That’s when the 18th Amendment was ratified, ushering in the prohibition on the production, transport and sale of alcoholic beverages. It was repealed by the 21st Amendment in 1933.

As for SB 1114, “This constitutional amendment is unnecessary because we already have a fix,” DeWolfe said, referring to SB 973. “We have a reasonable fix to the Richmond decision.”

With passage in the Senate, SB 973 moves to the House of Delegates, where its future is uncertain. The General Assembly’s regular session ends April 7.

To be ratified, the constitutional amendment would have to be approved by three-fifths of both the Senate and House of Delegates and then be approved by a majority of Maryland voters on Election Day, Nov. 4.

In a March 11 order, the Court of Appeals said it would stay enforcement of the Richmond decision until June 5 to give the

General Assembly an opportunity to act before the legislative session ends Monday.

The court has scheduled oral arguments for May 6 on what enforcement order it should issue in light of the General Assembly’s action or inaction this session.