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The Board of Public Works meets in the State House in Annapolis. (FILE)

Bills would undo right to counsel at hearings

Committees in both houses now want to change Constitution

ANNAPOLIS — A proposal to amend the Maryland Constitution and remove the right to counsel at initial bail hearings is likely to go to a vote of the General Assembly this month now that the proposal has the support of a majority of the Senate Judicial Proceedings Committee and the influential chair of the House Judiciary Committee.

If three-fifths of both the Senate and House approve the proposal, Maryland voters will have the chance in November 2016 to undo the state high court’s controversial decision that the Constitution requires the state to provide counsel for indigent people at the initial proceedings before district court commissioners.

The Court of Appeals held in DeWolfe v. Richmond in September 2013 that the Constitution’s due-process provision requires the state to provide counsel at this early stage at which commissioners decide whether to release or remand to custody an arrested individual prior to trial.

Senate President Thomas V. Mike Miller Jr., D-Prince George’s, Charles and Calvert and an outspoken opponent of the Richmond decision, told the Judicial Proceedings Committee in an open hearing Wednesday to “work your ass off” and pass something that would relieve the state of the financial burden the decision has placed on the state. Under current law, $10 million of the Maryland Judiciary’s budget has been earmarked this fiscal year for the payment of attorneys to provide counsel at initial bail hearings at a rate of $50 per hour.

Senate Bill 942 would amend the Maryland Constitution’s due process provision to state that it “may not be construed to require government-funded legal representation of an indigent defendant at an initial appearance before a district court commissioner.”

Sen. Michael J. Hough, the proposed amendment’s chief sponsor, called the Richmond ruling “an activist decision.” The Court of Appeals was “legislating from the bench,” added Hough, R-Frederick and Carroll.

“This [right] is not in the Constitution; it’s a new right that they interpreted,” he said Friday. “Quite frankly they were just wrong.”

Indigent defendants would retain the right to a public defender within 24 hours, when the commissioner’s decision to remand to custody is reviewed by a judge, Hough added.

Including Hough, R-Frederick and Carroll, the bill is cosponsored by seven of the Judicial Proceedings Committee’s 11 members, including its chair, Sen. Robert A. “Bobby” Zirkin, D-Baltimore County.

“We’ve been given a charge to come up with a solution to the DeWolfe v. Richmond decision.” Zirkin said, referring to Miller’s admonition. “We need to have a debate.”

Sen. Susan Lee, a member of the committee, voiced deep concern with the proposed amendment, saying it “will lead to the denial of counsel” to indigent Marylanders who are arrested.

“This is a radical, extreme response to the Richmond decision,” said Lee, D-Montgomery.

On Friday, the Senate panel held a hearing on the proposed amendment, which drew scorn from criminal defense attorneys.

The amendment’s “goal of stripping poor Marylanders of a constitutional right to counsel is without precedent in its antagonism to the rights of indigent criminal defendants, and it will result in continued costly, unnecessary and unconstitutional incarceration of indigent defendants, most of whom are people of color,” attorney Mitchell Y. Mirviss, who represented indigent arrestees in the Richmond case, stated in written testimony to the committee.

“This is an extraordinarily unfortunate attempt to roll back the civil rights of those least able to speak for themselves,” added Mirviss of Venable LLP in Rockville.

Maryland Public Defender Paul B. DeWolfe said that “doing away with the right to counsel is the wrong approach.”

A person’s “liberty is at stake” when he or she appears at an initial bail hearing, DeWolfe said. “They have the right to counsel.”

In written testimony, DeWolfe’s office stated that the proposed amendment, if ratified, would violate equal-protection and due-process guarantees under the federal Constitution.

“If this bill were to pass and be ratified by popular referendum, a laborious process that will take years, those who can afford private counsel at these hearings will have an attorney, but those who are poor will go it alone,” the office stated in written testimony.

“SB 942 is an affront to a system of justice that we should take pride in rather than seek to undermine,” the office added. “While low economic status is not generally recognized as a ‘suspect class’ for the purpose of assessing claims of unconstitutionality, this analysis changes when such a status affects a fundamental interest like liberty and access to the courts.”

Douglas Colbert, who directs the Access to Justice Clinic at the University of Maryland Francis King Carey School of Law, told the senators that “the people you are denying counsel to are the people who look to you most for protection.”

Joining Hough and Zirkin as sponsors are Sens. C. Anthony Muse, D-Prince George’s; Jim Brochin, D-Baltimore County; Wayne Norman, R-Harford and Cecil; Robert Cassilly, R-Harford; and Justin Ready, R-Carroll, all Judicial Proceedings Committee members.

House Judiciary Committee Chair Joseph F. Vallario Jr., D-Prince George’s, has proposed the amendment has well, as House Bill 496.

The proposed amendment, by seeking to remove counsel from the initial hearings, runs counter to recommendations a state commission made in December for protecting the rights of arrested individuals in the pretrial process.

The Governor’s Commission to Reform Maryland’s Pretrial System said the Office of the Maryland Public Defender should replace the Maryland Judiciary’s $10 million-per-year attorney representation program and provide counsel at the 177,000 initial bail hearings annually before district-court commissioners. DeWolfe, a member of the commission, voted for the recommendation, saying his office has the expertise in representing indigent criminal defendants at every stage of the judicial process.