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Committee redrafts rules for lawyers at bail

The incoming head of the Maryland District Court urged the state’s lawyers Friday to sign up to represent indigent arrestees at initial bail hearings — for free, if possible, or at a compensation rate of $50 per hour.

Judge John P. Morrissey made the request as a Maryland Judiciary panel was drafting revisions to the rules for implementing the state high court’s Sept. 25 decision that arrested individuals have a state constitutional right to counsel at the initial hearings before district court commissioners.

The draft rules, which await the Court of Appeals’ approval, call on administrative District Court judges to appoint attorneys to represent the defendants at the initial bail determinations.

“For everyone who is an attorney here, I am going to pass around a sign-up sheet,” said Morrissey, a judge in Prince George’s County who assumes the top post June 1. He will succeed Chief Judge Ben C. Clyburn, who has announced his May 31 retirement.

Morrissey also told those attending the rules committee session in Annapolis to encourage other lawyers to sign up, including newly minted attorneys seeking employment.

The draft rules largely supplement a rule the Court of Appeals approved Nov. 6 but has not put into effect and which needs updating after the General Assembly last month earmarked $10 million from the Judiciary’s budget for the appointment of counsel.

The high court has withheld implementing its decision in DeWolfe v. Richmond pending its adoption of a final rule. The court has not yet scheduled a date for its consideration of and vote on the draft.

But the high-court judges “want this and they want it quick,” said retired Court of Appeals Judge Alan M. Wilner, who chairs the Standing Committee on Rules of Practice and Procedure. “The Judiciary is trying to do everything it can do to stretch that $10 million and make it work.”

Morrissey, as chief judge, will be in charge of administering the appointment of attorneys and of a system for determining if individuals qualify for appointed counsel or must retain private lawyers.

These administrative functions have historically been the responsibility of the Maryland Office of the Public Defender but will now belong to the District Court under the General Assembly’s $10 million earmark. The proposed rule is largely silent on how the commissioners will determine if an individual is indigent and in need of appointed counsel.

Morrissey, without mentioning specifics, said the determination will be made while the defendants are awaiting their initial bail hearings and not when they appear before the commissioners.

“I don’t want to see a defendant in jail for one more minute than they have to be,” Morrissey said.

Court of Appeals Chief Judge Mary Ellen Barbera appointed Morrissey to be the top district judge on April 14, a little over a week after the General Assembly essentially placed on the chief the obligation of administering the $10 million program.

Wilner said Morrissey might not yet have a full appreciation of the awesome task that awaits him.

Morrissey is “like the young man who joined the Navy on Dec. 6, 1941,” the day before Japanese forces bombed the U.S. naval base at Pearl Harbor, said Wilner.

The high court has been holding the Nov. 6 rule in abeyance pending its ultimate resolution of the underlying litigation in Richmond, which it had remanded to the Baltimore City Circuit Court for procedural reasons.

On remand, Circuit Judge Alfred Nance in January ruled that the right to counsel when bail is set should begin immediately. The state sought review of Nance’s action by the Court of Appeals, which stayed the effect of Nance’s order until it could hear arguments on March 7.

Having heard the arguments, the court extended the stay until March 11 and then to June 5, to give the General Assembly a chance to respond to the Richmond decision and Wilner’s committee an opportunity to revise the rule in light of the legislature’s response.