Two of Maryland's top officials suggested Wednesday that they don't see a decision by the state's highest court guaranteeing poor people the right to state-appointed counsel at all bail hearings as being the final word on the matter.
Appearing on the Marc Steiner radio show before the opening of the General Assembly session, Gov. Martin O'Malley and Senate President Thomas V. Mike Miller emphasized that the Court of Appeals decision requiring the state to provide public defenders to prisoners when they appear before court commissioners remains before the courts and could be appealed again.
By delaying a response to the high court's decision, the governor and lawmakers could avoid the thorny problem of paying for the added cost of providing those lawyers – estimated at about $30 million for the state Office of the Public Defender alone. Changing the bail system to conform to the ruling has been viewed as potentially one of the most difficult of the session.
O'Malley dealt with questions about the ruling indirectly, saying he looks forward to the "exhaustion of the appellate process" on a matter the appeals court has already dealt with twice. In its last decision, the Court of Appeals reaffirmed prisoners' rights to representation at any hearing where their liberty is at stake, but sent the matter to the Baltimore Circuit Court for implementation. That court has not yet acted.
Miller bluntly expressed his disagreement with the high court decision and expressed the hope that the Circuit Court's eventual decision would be appealed to the Court of Appeals in a way that would give the high court the opportunity to reverse its 4-3 DeWolfe vs. Richmond decision. He pointed out that the Court of Appeals now has a new chief judge and a new member.
"Guess what, we now have a different Court of Appeals," Miller said. "We're hoping they're going to get a fresh look at their wrong decision."
To fulfill Miller's wish, the court would have to overrule a precedent it set only a few months ago – something judges are usually reluctant to do.
O'Malley signaled that he is looking favorably on one recommendation of the judiciary for how to adapt to the Richmond decision. A judicial task force recommended this week that the state eliminate the step of initial bail hearing before a commissioner — at least on weekdays – and hold just one hearing before a judge. The judges estimated that such a change would cost about one-third as much as beefing up the public defender's office.
"There may be some merit in going in that direction," O'Malley said. "Perhaps it's time to eliminate the court commissioner process altogether."