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Having district court commissioners determine if defendants are indigent would compromise the commissioners’ ability to be neutral arbiters in cases, Chief Maryland District Court Judge John P. Morrissey told state senators Thursday. ‘We are not the prosecuting body,’ he said. ‘We are the neutral body.’(Maximilian Franz/The Daily Record)

Public defender, Judiciary battle over who determines defendants’ indigency

ANNAPOLIS – The Maryland Office of the Public Defender squared off Thursday against the state Judiciary over legislation that would transfer the responsibility for determining if a criminal defendant qualifies for state-sponsored counsel from the OPD and give it to district court commissioners.

Deputy Maryland Public Defender Charles H. Dorsey III called the transfer necessary due to the office’s coming loss of intake staff to collect financial information from defendants to determine if they qualify for a public defender. Requiring the OPD to review a defendant’s eligibility undermines the defense attorneys’ ethical obligation to zealously defend their clients, Dorsey added.

“It is difficult for us to investigate our clients and at the same time investigate their cases,” he told the Senate Judicial Proceedings Committee, which is reviewing the legislation.

But Chief Maryland District Court Judge John P. Morrissey said the ethical quandary is no less for district court commissioners, who are bound to be neutral arbiters and not investigators of the financial status of the defendants who appear before them.

“We are not the prosecuting body,” Morrissey told the Senate committee. “We are the neutral body.”

The controversial legislation has influential support, as it is cosponsored by Senate President Thomas V. Mike Miller Jr., D-Calvert, Charles and Prince George’s, and Sen. Robert A. “Bobby” Zirkin, D-Baltimore County, who chairs the Senate panel.

Miller told the committee that the impetus for the bill is the coming loss of OPD intake personnel in Gov. Larry Hogan’s proposed budget for fiscal year 2017, which begins July 1.

That argument drew criticism from Morrissey, who likened it to the public defender’s office saying, “We can’t do it; you do it.”

Maryland law calls for public defender assistance for defendants whose assets fall below the federal poverty guidelines.

For defendants with assets at least equal to the guidelines, a determination must be made as to whether they are capable of affording a competent private attorney based on their available assets and the complexity of the legal proceedings, including the projected costs of discovery and experts.

District Court commissioners currently make that determination provisionally prior a defendant’s initial appearance before them if one occurs. OPD then makes the determination prior to a bail hearing or trial and may request information from the Department of Labor, Licensing and Regulation regarding the defendant’s employment status.

The legislation, Senate Bill 1156, would have court commissioners make the determination of a criminal defendant’s indigency in all cases. The bill would trim OPD’s costs by more than $538,000 in its first year based on the elimination of 14 intake positions at OPD and at least $748,000 in future years based on annualization and inflation, according to the Department of Legislative Services.

But the measure would increase the Judiciary’s cost by more than $1.3 million in the first year based on the hiring of 22 commissioners to conduct eligibility determinations at initial appearances and re-determine eligibility of defendants who were represented by OPD at bail hearings, according to legislative analysts. That figure would increase to at least $1.7 million in future years, according to analysts.

If enacted, the bill would go into effect on Oct. 1, 2017. It has not been cross-filed in the House of Representatives.