Openness and bond hearings

Injustice happens in empty courtrooms.

If any proof of the validity of this maxim were needed, one need only read the 21-page report “Inside Prince George’s County Bond Hearings” just released by Howard University’s Movement Lawyering Clinic. After observing hundreds of bond hearings over two years, participants witnessed:

“[J]udges dismissing defendants’ needs for medical attention while in jail, dismissing the needs and wishes of defendants with mental health issues and allowing them to ramble in court without a lawyer or procedural guidance, giving harsh rulings to juveniles, setting unaffordable bonds, and proceeding with hearings despite poor audio quality, making effective assistance of counsel impossible.”

These findings, documented in far greater detail than can be recounted here, were provided to the Maryland Senate Committee on Judicial Proceedings on March 23. Hours later, the committee voted 8-2 to report unfavorably SB43, a bill to require each court in the state to provide remote audio-visual access to all public court proceedings, but allowing the judge to prohibit broadcast at the request of any party, witness or counsel consistent with the public interest.

This was the second time in two years that a court transparency bill died in committee, and we urge our legislators to think long and hard before allowing it to happen again. During committee hearings on the bill in January, many good reasons for passing the bill were raised by knowledgeable participants in the legal system. Only two reasons were advanced for rejecting the bill, neither of them frivolous, but neither compelling.

The constitutional right to a public trial tops the positive side of the ledger, and for some of us, that’s enough. One witness, born in Iran, called it a “treasure.” But as several witnesses pointed out, the right to a public trial is merely a mirage when a defendant’s friends and family cannot afford to lose a day of work to attend court, or to pay for transportation or child care.

Among the other benefits of the bill cited at the hearing were increasing access to justice, strengthening the accountability of judges and counsel, improving the efficiency of the legal system, enhancing public participation and community trust, mitigating the harms and effects of overloaded dockets, and leveling the playing field for Black and Brown people.

Two important reasons were cited in opposition to the bill. The Maryland Judiciary has estimated that the cost of the equipment needed would run to $2.6 million annually, while the cost of additional personnel (another clerk in each court) could reach $25- to $35-million. In the fiscal note accompanying the bill, however, the Department of Legislative Services generally disagreed with the judiciary’s estimate of the magnitude of the personnel costs.

In any event, we acknowledge that the cost would not be insubstantial, but we believe the benefits would be well worth the expenditure.

Finally, opponents of the bill – notably the state’s attorneys – raised the specter of posting hearing videos on social media, resulting in potential witness intimidation and retaliation. While the bill’s sponsor, Sen. James Rosapepe, agreed that the concern was reasonable, he suggested the problem could be managed with a “scalpel,” and did not require the “sledgehammer” of defeating the bill.

One former Prince George’s County public defender noted that, in the hundreds of bond hearings she participated in during COVID, not once was virtual access abused nor was she aware of any witness intimidation.

We urge lawmakers to take the time to examine this issue more closely – beginning with the Howard report – and find a way to enact it next session. Injustice happens in empty courtrooms.

Editorial Advisory Board member Arthur F. Fergenson did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Andre M. Davis

Eric Easton

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Roland Harris

Julie C. Janofsky

Ericka N. King

Susan F. Martielli

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.