Appeals court ruling requires lawyers at bail hearings

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.

Before Wednesday, the bail setting process in Maryland typically involved defendants being brought before commissioners, who often work in jails and police stations at all hours of the day. The commissioner explains the charges against a defendant and determines whether there was probable cause for arrest and if bail should be required. If bail is set, the defendant gets a review hearing before a judge as soon as possible afterward, often the next business day.

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.

Maryland's 535 public defenders are already taking on higher than acceptable caseloads in nearly all of the 12 districts in which they practice, DeWolfe said. They handled nearly 219,000 cases in 2010, according to public statistics.

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.