Public defenders do not appear before the commissioner, and they only attend bail review hearings in several of the state's jurisdictions, including Baltimore, Albin said, blaming a lack of resources.
DeWolfe said states vary in how they handle public defenders at commissioner hearings. But a 2007 ruling by the U.S. Supreme Court said "an overwhelming majority of American jurisdictions understand" that the initial appearance by a defendant "before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel."
Criminal defense attorney Warren Brown, who typically works in Baltimore, acknowledged the hardships of the Maryland public defender's office, but said that a lack of resources shouldn't be used as an excuse, and he called on all components of the justice system to pitch in.
"Everybody's going to have to lend a helping hand here," he said, urging police to issue citations instead of arrests for driving violations, like suspended licenses and lapsed insurance, and suggesting that the state find the required cash to fund the order.
"I'm not so sure cost should get in the way with somebody's liberty," said Brown, who's opposed to the commissioner system overall. He would prefer a judge be making those decisions, rather than a commissioner, who is not legally trained.
DeWolfe said he plans to put together a study group to determine the resources he would need to obey the order.
"We'll do everything we can to comply with the order, but with current resources, I think everybody would agree — including the court of appeals in its opinion would agree — that we don't have the necessary resources to staff" the hearings, DeWolfe said.
Two appeals court judges, Glenn T. Harrell Jr. and Sally D. Adkins, found that the refusal of the other judges to grant a stay of the order was an "unacceptable" rigidity.
"We would have granted a stay of the judgment until 30 June 2012, during which period, the [Office of the Public Defender], the Legislature and others must do what needs to be done to effectuate the right declared here," they wrote.
Del. Curtis Stovall "Curt" Anderson, a Baltimore Democrat and lawyer who chairs the House Criminal Justice subcommittee, said the order will stretch the public defenders' "capabilities beyond belief" and he worries that a failure to comply could result in lost cases for prosecutors later on.
Indigent defendants who were denied attorneys before commissioners could use that as a basis for seeking dismissal of their cases later on, he said.
DeWolfe is "going to have to have a meeting with the governor, that's for sure," Anderson said. "He can't do more than the resources he has [allow], and if the governor doesn't fund his office, that could be a direct causal relationship between many, many defendants — probably some of them guilty — having their cases dismissed, simply because the public defender's office didn't have an attorney present."
Baltimore Sun reporter Andrea Siegel contributed to this report.