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DeWolfe, Morrissey battle over who should determine indigency

Judicial officers ‘are supposed to be neutral and impartial and not an investigative body,’ Maryland District Court Chief Judge John P. Morrissey Morrissey told lawmakers Wednesday as they consider whether to re-introduce legislation to transfer the responsibility from the Office of the Public Defender to the Judiciary. (Maximilian Franz/The Daily Record)

Judicial officers ‘are supposed to be neutral and impartial and not an investigative body,’ Maryland District Court Chief Judge John P. Morrissey told lawmakers Wednesday as they consider whether to re-introduce legislation to transfer the responsibility from the Office of the Public Defender to the Judiciary. (Maximilian Franz/The Daily Record)

ANNAPOLIS – Maryland’s chief public defender called on state legislators Wednesday to transfer to district court commissioners the responsibility for determining if a criminal defendant qualifies for state-sponsored counsel.

The commissioners already have the duty to ask criminal defendants at their initial appearances whether they want to be represented by counsel and if they can afford one, Paul B. DeWolfe said at a joint session of Senate and House judiciary committee members. The current law, which requires the public defender’s office to conduct a subsequent inquiry, is “duplicative,” DeWolfe said.

But Maryland District Court Chief Judge John P. Morrissey said commissioners would have a conflict of interest if required to have the final say on whether a defendant is indigent and thus qualifies for free legal assistance.

Judicial officers “are supposed to be neutral and impartial and not an investigative body,” Morrissey told the legislators as they consider whether to re-introduce legislation to transfer the responsibility from the OPD to the Judiciary.

The Senate passed such a measure last session, but the bill died in the House.

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

The commissioners already have the duty to ask criminal defendants at their initial appearances whether they want to be represented by counsel and if they can afford one, Paul B. DeWolfe said at a joint session of Senate and House judiciary committee members. (The Daily Record / Maximilian Franz)

The commissioners already have the duty to ask criminal defendants at their initial appearances whether they want to be represented by counsel and if they can afford one, Paul B. DeWolfe said at a joint session of Senate and House judiciary committee members. (The Daily Record / Maximilian Franz)

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.

Under current law, commissioners make the indigency determination provisionally prior to a defendant’s initial appearance. The Judiciary maintains a list of attorneys who are on call to represent defendants who qualify for free legal aid.

This statutory requirement followed the Maryland Court of Appeals’ 2013 ruling in DeWolfe v. Richmond that defendants have a right to counsel at these first appearances because they can result in the defendants being sent to jail before trial.

Current law also requires OPD to make the ultimate determination of indigency prior to a bail hearing or trial. In making this determination, the public defender may request information from the Department of Labor, Licensing and Regulation regarding the defendant’s employment status.

Last session’s legislation, Senate Bill 1156, would have had court commissioners make the determination of a criminal defendant’s indigency in all cases. As introduced, the bill would have trimmed 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.

The measure also would have increased 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 have increased to at least $1.7 million in future years, according to analysts.

DeWolfe and Morrissey, despite disagreeing on who should make the final decision on indigency, agreed to abide whatever the legislature decides.

“We will show you the same determination that we did with the Richmond decision,” Morrissey told the legislators.

The 2017 General Assembly session opens Jan. 11.


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