The state could be forced by next week to let suspected criminals in Baltimore go free until trial if it does not provide them with lawyers at the time their bail is set.
A sweeping order by a city judge would accelerate the timetable for a substantial change in the pretrial release system, and Maryland's top court will consider the matter next week. State officials are wrestling with the prospect of providing public defenders for the hundreds of defendants who come before bail commissioners daily.
Maryland now provides public defenders to suspects when they go before judges for bail review hearings, but not at the proceedings at which the initial bail is set.
The Court of Appeals has twice ruled that suspects have a constitutional right to counsel at those initial hearings, a proposition that could cost $30 million if an already strained public defender's office picks up the work. Court administrators say they would need a year to comply with the requirement. And the General Assembly is looking at proposals to overhaul the pretrial release system entirely.
But the order released this week by Baltimore Circuit Judge Alfred Nance said the state must move immediately to provide counsel to defendants in Baltimore.
The blunt directive prohibited officials from "directing the incarceration of any Plaintiffs who have not been provided counsel at [bail commissioner] hearings."
Officials with the state attorney general's office called the order "unworkable" and asked the high court to put it on hold. The Court of Appeals agreed to do so — at least until a hearing next Thursday.
Michael Schatzow, an attorney representing the plaintiffs in the case that led to the ruling, said the courts have forced themselves into a corner and are seeking to slow down the process, rather than think of ways to let defendants exercise their rights as they hammer out the finer details.
"I would have more sympathy for them if I thought that they had acted with the foresight and speed that you would have expected," Schatzow said in an interview. "Nobody has looked down the road and said this is going to happen, how do we deal with it?"
Defendants in the case include judges and officials who run state courts.
Schatzow wrote to the Court of Appeals judges by overnight letter sent late Monday asking them to put Nance's order into effect, but state lawyers quickly filed a petition for the commands to be put on ice and ultimately thrown out.
The top court has now given the plaintiffs — a group of criminal suspects who were denied lawyers at their bail hearings — until Friday to file a response.
Chief Judge Mary Ellen Barbera wrote that the court will decide whether to freeze Nance's order indefinitely or let it go into effect.
Advocates for change to the pretrial release system have long argued that defendants are treated more fairly and have a better chance of receiving a bail amount they can afford if they are represented by a lawyer at all stages.
The trouble has arisen because the simplest way of providing lawyers for defendants at their bail hearings — hiring more public defenders — is so expensive. The courts, the legislature and the governor's office went looking instead for cheaper ways to implement the decision.
A state task force proposed doing away with money bail entirely, and the judiciary has suggested a streamlined system with a single bail hearing before a judge in most cases. Neither plan has been finalized, and each would require new laws.
The court officials who are defendants in the case argued in filings that Nance's two-page order does not take into account all the action going on in Annapolis.
"All three branches of government are actively engaged in considering policy reform proposals that would substantially alter existing aspects of the State's pretrial procedures, while at the same time grappling with the more immediate logistical and fiscal challenges created by the Court's ruling," wrote the court officials' lawyers, who work in the attorney general's office.
"Rather than crafting a remedy that acknowledges these challenges, the circuit court ignored them and entered an unworkable injunction."
As recently as last week, Gov. Martin O'Malley and Senate President Thomas V. Mike Miller suggested that the issue of whether a constitutional right even exists might not be settled, noting that the composition of the court has changed since last fall.
The high court could revisit the underlying issue, but the latest flurry of papers does not explicitly call on it to do so. The petition on behalf of the court officials argues instead that Nance's order falls flat on procedural and wording issues.
And at a hearing Wednesday in Annapolis, Barbera, who wrote a dissenting opinion in the case itself, endorsed the plan developed by her colleagues for a streamlined system.
"I believe our proposal, that of the judiciary, provides ... a feasible plan that reorganizes the front end of the criminal justice system," she said.