Appeals court ruling requires lawyers at bail hearings

State public defender's office says it can't comply with order

January 04, 2012|By Tricia Bishop, The Baltimore Sun

The Maryland Court of Appeals ruled Wednesday that the state must provide lawyers to indigent defendants during bail hearings, overturning a long-standing practice under which newly arrested individuals face court commissioners alone — often in private, unrecorded proceedings — to argue for freedom.

"Whenever a commissioner determines to set bail, the defendant stands a good chance of losing his or her liberty, even if only for a brief time," the judges wrote. "Furthermore, the likelihood that the commissioner will give full and fair consideration to all facts relevant to the bail determination can only be enhanced by the presence of counsel."

The ruling, effective immediately, was heralded as a long-awaited "gift of justice" by some defense lawyers, who criticized the previous practice as unconstitutional and suggested that it led to unnecessary incarceration of defendants by overzealous court officials. But it was deemed impossible to implement by Maryland's public defender, whose office would be charged with attending potentially 180,000 bail hearings that occur 24 hours a day each year.

"We believe that declaring the right without addressing the issue of remedies was an empty gesture," said Maryland Public Defender Paul B. DeWolfe Jr. "We don't have the resources to comply with this order."

DeWolfe had argued in favor of the requirement, but asked that it be delayed long enough to find the resources to put it into practice. Two appeals court judges agreed with him in a separate, dissenting opinion, addressing only the timeline. But the majority opinion couldn't abide the apparent contradiction.

"We cannot declare that Plaintiffs have a statutory right to counsel at bail hearings and, in the same breath, permit delay in the implementation of that important right and thereby countenance violations of it, even for a brief time," the judges wrote.

Now, every part of the judicial system is examining the opinion to determine what it means in terms of logistics.

In separate statements, representatives from the District Court of Maryland, which oversees the bail process; the Baltimore state's attorney's office, which has one of the state's biggest criminal caseload; and the Department of Public Safety and Correctional Services, which manages pre-trial incarceration, said they are evaluating the consequences and determining next steps.

By far, the agency hardest hit will be the public defender's office, most agreed.

"It's going to be huge," said Lori Albin, a former legislative director for the Maryland public defender's office, who left in May to take a job in Washington.

In addition to the initial bail hearings held before a commissioner, public defenders will also be required to attend the bail review hearings held hours later, before a judge, she said, estimating that the office would need to double its $83 million budget to comply.

Failure to provide the required attorneys could lead to class action lawsuits seeking millions in damages, or the state's public defender could be held in contempt, she said.

"The state has basically ordered him to have people there," Albin said, noting that "you can't manufacture public defenders overnight."

In the long run, the ruling could be less costly to the court system, some said, leading to fewer people being detained in public facilities. A law review article written by University of Maryland law professor Douglas Colbert and others showed that defendants charged with nonviolent crimes were nearly three times as likely to be released on their own recognizance when they had a lawyer during their bail hearings.

The court opinion and order grew from a 2006 class action case filed in Baltimore Circuit Court, seeking an immediate declaration that indigent defendants have a right to a public defender during bail hearings. The plaintiffs were all people who had been denied lawyers and filed the case on behalf of everyone similarly situated.

The case took years to work its way through the courts, held up on procedural issues and other technicalities. But in September 2010, the Circuit Court held that presentation before a commissioner is a critical stage of prosecution for which a lawyer should be present. Various appeals and motions afterward led to the case being taken on by the state's highest court last year.

Its ruling affects the bail process throughout Maryland.

Colbert, who worked on the case when it was in its early stages, called the ruling "groundbreaking" and "a gift of justice for poor people."

"It's a stunning recognition of a long overdue right to a lawyer's representation when people's liberty is at stake," he said, adding that "this is the most important ruling for indigent defendants' right to counsel since Gideon," referring to the nearly 50-year-old Supreme Court ruling that established a constitutional right for a poor person accused of a felony to a lawyer.

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