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Rules Committee takes up bail-review process
With the General Assembly having spoken, Maryland‘s top court will soon consider and vote on a procedural rule for providing public defenders to indigent defendants at bail review hearings.
A Maryland Judiciary panel gave its approval to the proposed rule on Friday and will submit it to the Court of Appeals after Gov. Martin O’Malley signs House Bill 261 into law, said Alan M. Wilner, who chairs the Standing Committee on Rules of Practice and Procedure.
With that bill, the legislature amended a law the Court of Appeals had interpreted as requiring that counsel be provided even earlier in the legal process: when a defendant is first brought before a District Court commissioner and bail is initially set.
Lawmakers balked at the high court’s broad interpretation of the Public Defender Act in January, when Maryland Public Defender Paul B. DeWolfe told them the state’s cost of providing representation at approximately 177,000 annual initial bail hearings would be $28 million.
The legislators opted instead to require counsel at the bail review hearing, which generally occurs 24 hours after the initial hearing. The legislation, which Gov. Martin O’Malley is expected to sign, would bar prosecutors from using against the defendants anything they said before a commissioner without an attorney present.
Only three Maryland jurisdictions already provide public defenders at bail-review hearings: Baltimore, and Montgomery and Harford counties.
DeWolfe said last week that he has no updated figures on the state’s cost to provide representation at the 35,000 additional bail-review hearings annually statewide. In late January, he had put the cost at about $3.8 million.
If signed by the governor next month, the law will go into effect June 1.
In February, the Court of Appeals considered a rule to implement its Jan. 4 decision in DeWolfe v. Richmond requiring that public defenders be provided at initial bail hearings. But on Feb. 16, the court suspended its consideration of that rule — as well as a planned order to implement its Richmond decision — in light of the then-pending legislation before the General Assembly.
The rule that will now come before the high court contains a provision that would require judges at bail review hearings to tell defendants they have a right to counsel and that an attorney can be helpful in advocating for pre-trial release on their own recognizance or for bail with minimal conditions or restrictions.
“The rule is in keeping with what the legislation intended for us to do,” DeWolfe said last week. “We have reviewed it and approved it.”
Wilner said neither the legislation nor the proposed rule will change the fact that attorneys will continue to appear at initial bail hearings, but only on behalf of defendants who can afford counsel.
“If there is a defense lawyer there [at an initial bail hearing], it’s not going to be a public defender,” said Wilner, a retired Court of Appeals judge.
The Richmond litigation began in November 2006 in Baltimore City Circuit Court on behalf of 11 indigent defendants. The class action challenged procedures at the city’s Central Booking and Intake Facility, where a District Court commissioner sets the initial bail.
Judges then hold bail review hearings on the first business day after a defendant is in custody, which could be a Monday if a defendant is arrested on Friday.
A circuit court judge originally granted summary judgment for the state, but the Court of Appeals sent the case back in March 2010 with instructions to add the public defender as a party.
That October, Judge Alfred Nance ruled there was a right to counsel, a decision the Court of Appeals affirmed this January.
