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Judge expected to rule Monday on release of riot-related arrestees

A Baltimore judge is expected to rule Monday morning on whether the city must release from custody people who were arrested during last week’s riots and held more than 24 hours before seeing a district court commissioner.

Baltimore City Circuit Judge Charles J. Peters heard arguments Friday afternoon from city and state prosecutors that Gov. Larry Hogan acted within his authority under Maryland’s state of emergency law when he — amid the looting and rioting — extended to 47 hours a judiciary rule that presentment before a commissioner must occur within 24 hours. Public defenders countered that the governor had no authority to suspend the rule, which they said sets an ironclad 24-hour time limit for presentment or the arrestee must be released.

In his questions, Peters appeared to see considerable merit in the prosecution’s case during the nearly two-hour hearing.

He voiced disbelief that a judge — if not the governor — would lack discretion to extend the 24 hour deadline during civil unrest, when the need for police to patrol the streets trumped their duty to complete charging documents.

“The arresting officers were being deployed in response to the state of emergency,” Peters told the public defenders. “Are you going to argue that it makes no difference?”

Peters also cited the Supreme Court’s 1991 decision in County of Riverside, Calif., v. McLaughlin, in which the justices said the federal constitution requires that arrestees be brought before a judicial officer within 48 hours of arrest, not 24.

In response, Assistant Public Defender Deborah K. Levi said the Supreme Court set a “ceiling” of 48 hours but that the Maryland Court of Appeals stated by rule that the appropriate standard in the state is 24 hours.

The rule, which implements Maryland law governing detention, states that “in any event” presentment must occur no later than 24 hours after arrest.

“The court has no other authority but to release” if the deadline is not met, Levi said.

“The court has no discretion,” she told Peters. “You can’t read an exception into the statute.”

As for Hogan’s order, Levi said the governor lacks the “power to reach across the branches of government” and alter a rule established by the judiciary.

David Walsh-Little, also an assistant public defender, said releasing arrested individuals is “the only way to remedy the wrong” of holding them more than 24 hours without presentment before a district court commissioner. “At 24 hours and one minute [the arrestees] should have been released.”

But Peters called it “not insignificant” that Baltimore police were trying to quell a riot. Under such extraordinary circumstances, the rule should perhaps be interpreted as “do the best you can,” he added.

Deputy Baltimore City State’s Attorney of Operations Patricia DeMaio picked up on Peters’ concerns.

“Our city was in a state of emergency,” DeMaio said. “What is the choice? Let the city burn or send the officers back out.”

Under such circumstances, judges and the governor have discretion to suspend the 24-hour deadline, she added.

Assistant Maryland Attorney General Julia Doyle Bernhardt said Hogan acted within his authority in extending the deadline to 47 hours, noting the state of emergency law expressly enables governors to suspend rules, as well as laws and regulations. Rules, as referred to in the law, include those issued by the judiciary, Bernhardt added.

The public defenders presented their arguments specifically on behalf of three men arrested during the riots last Monday evening but did not appear before a district court commissioner until Wednesday morning, a span of more than 24 hours but less than 47.

Peters ended the court session at about 4:45 p.m. Friday and announced he would be back on the bench at 9:30 a.m Monday.