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Zirkin puts constitutional amendment bill on ice

ANNAPOLIS – Sen. Robert A. “Bobby” Zirkin on Thursday called for an indefinite hold on his proposed constitutional amendment to undo a Maryland high court ruling that people have a right to counsel at initial bail hearings before court commissioners, saying he remains confident the lawmakers will vote to preserve Maryland’s two-tier system of pretrial hearings at reasonable cost to the state.

“It is a system worth preserving,” Zirkin said of initial bail hearings followed by a judicial review proceeding. “I believe we can get there.”

Zirkin’s comments came as the Senate and House appear to be at an impasse in their effort to respond to the Maryland Court of Appeals’ Sept. 25 decision in DeWolfe v. Richmond that individuals have a state constitutional right to counsel at initial bail hearings. Maryland Public Defender Paul B. DeWolfe, the nominal petitioner in the case, has said it would cost the state about $30 million annually to have attorneys on call at the 177,000 initial bail hearings statewide each year.

Zirkin disputed that sum, saying that greater use of court-appointed and pro-bono attorneys could keep those costs down while complying with the constitutional mandate that attorneys be provided at initial hearings.

Ideally, the legislature can find a solution that comports to “the court decision not just in its spirit but the letter of it,” Zirkin said.

Zirkin, D-Baltimore County, declined to comment on whether he has discussed any specific proposal with any other legislator.

Zirkin said his optimism is rooted in the House Judiciary Committee’s rejection Wednesday of Senate-passed legislation to replace initial bail hearings before district court commissioners with a highly controversial, objective pretrial risk assessment computer program. The program would assess a person’s risk of offending or fleeing if released from custody before trial. Individuals who are not released would be afforded a bail review hearing before a judge, generally within 24 hours, at which they would have the right to counsel.

The legislation, Senate Bill 973, would require people to be held pending judicial review if a police officer states under oath that they are a threat to public safety or of fleeing.

Senate Judicial Proceedings Committee Chair Brian E. Frosh, D-Montgomery and the measure’s chief sponsor, called the bill a cost-effective response to Richmond and a solution that advances the cause of justice by ensuring that individuals who do not present a threat to the public or of flight are quickly released on their own recognizance.

But the House Judiciary Committee rejected implementation of a computer program Wednesday as it approved House Bill 1232, which calls for a task force to examine the program’s feasibility.

Del. Joseph F. Vallario Jr., D-Prince George’s and Calvert, the House committee’s chairman, said he is opposed to having a computer program ever replace a district court commissioner.

Zirkin, who shares Vallario’s view, said Thursday that he introduced the constitutional amendment solely to give lawmakers an alternative to SB 973, which he said would “turn our justice system over to autopilot robots.”

Zirkin said he chose to hold, rather than withdraw, the proposed amendment to preserve it as an option if SB 973 is restored by a Senate-House conference.

“My intention is to withdraw it when a better idea is put forward,” he said.

Recognizing the General Assembly’s effort to craft a response, the Court of Appeals on March 11 said it would stay enforcement of the Richmond decision until June 5 to give legislators a chance to act. 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 legislative session, which ends Monday.

The proposed constitutional amendment, Senate Bill 1114, would alter 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 initial appearances before a district court commissioner.”

The Court of Appeals had cited the provision — Article 24 of the Maryland Declaration of Rights – in its Richmond decision finding a right to counsel at initial bail hearings.