Court commissioner role questioned

At 10 a.m. on a recent weekday, roughly a half-dozen District Court commissioners were individually processing 120 arrestees at Baltimore's Central Booking and Intake Center, and making big decisions about whether to set bail or release the accused with instructions to come to court when called.

They work out of tiny concrete cells in the detention center, similar to those packed with waiting prisoners. For protection, they have a window partition between them and the defendant, who is locked in during the proceeding.

The specifics of what they talked about is anyone's guess. Reporters and the public aren't allowed inside the Baltimore hearings, even though the process is supposed to be open. But the purpose of the discussion is known: The commissioners explain the criminal charges and try to quickly assess whether a defendant is a danger to the public or a flight risk.

It's a powerful position that requires little training, no law degree and largely goes unnoticed by the public. But a recent ruling by Maryland's highest court has thrust the commissioners into the spotlight. And some legislators and lawyers are asking whether the system should be changed.

"I think that most of the things that a commissioner does should be done by a judge," said Del. Curtis S. Anderson, who chairs the House Criminal Justice subcommittee. He's drafting a bill that would take away warrant power from the state's 240 commissioners, who in addition to setting bail, can order someone's arrest based on another citizen's word.

But others claim the judicial officers are a necessary component of an overworked court system. They're required to be on duty all day every day "for the convenience of the public and police in obtaining charging documents, warrants or criminal summonses and to advise arrested persons of their rights as required by law," according to the Maryland Code.

"If they took away the commissioners, the work would fall to the judges," said David Weissert, coordinator of commissioner activity for Maryland's 12 court districts. And in that hypothetical case, he said, "justice only applies five days a week, eight hours a day" — or judges would have to start working round the clock.

Critical stage

The commissioners' work, which takes place quietly in detention centers and district courthouses throughout the state, was highlighted Wednesday by the Maryland Court of Appeals.

The high court ruled that a defendant's initial appearance before a commissioner is a critical stage of criminal prosecution, and ordered the Maryland Public Defender's Office to immediately begin representing indigent defendants at the nearly 200,000 bail hearings each year. It's unlikely that the mandate can be carried out any time soon, however, because the defender's office doesn't have the resources, according to its chief.

That's led some to take a closer look at what commissioners do. They're typically the first judicial officer a person sees after being arrested, and they hold a suspect's pre-trial freedom in their hands.

"A big problem here, is we have no idea what takes place at the commissioner hearings," said Douglas Colbert, director of the Access to Justice Clinic at the University of Maryland School of Law.

His students have been fighting for public defender representation at commissioner hearings since 1997, and they were elated by Wednesday's ruling. But he said there is still work to be done based on their observances.

"There are certainly individual commissioners who do a very good job under trying circumstances, but the system of justice needs considerable improvement," Colbert said.

The circumstances are difficult, according to Weissert's telling.

Commissioners, who are paid between $44,000 and $65,000 a year, work eight-hour shifts with no lunch break, and they don't earn overtime, even when they're forced to stay and finish the work. They work holidays and weekends.

"We never stop, just never … we're holding hearings all the time," Weissert said. Commissioners see tens of thousands of criminal defendants each year. And they issue roughly 77,000 charging documents and accompanying warrants annually, about half for police and the other half for citizens.

'Makes no sense'

The latter category concerns Anderson.

"Currently, if a police officer wants a search and seizure warrant, he's got to go to a judge, a judge who has been to law school," said Anderson, who worked his way through college as a commissioner.

"Yet a private citizen, who might be motivated by a grudge or something else, can go to a court commissioner, who doesn't even have to finish college, and get a warrant to put another person in jail," he said. "To me, that makes no sense."

In Baltimore, the state's attorney created a panel in late June that reviews such citizen complaints and commissioner warrants so prosecutors can quickly recall those that may not appear to have merit.

Of the nearly 1,800 cases filed and reviewed by the so-called "Citizen Review Unit," only 44 percent made it to trial. The rest were dropped shortly after they were processed, in large part because the complainants failed to pursue their complaints.

It "allows us to kind of weed out the cases that don't belong in court," said Baltimore State's Attorney Gregg Bernstein.

Weissert said that the number of cases dropped by prosecutors after a review in Baltimore don't reflect an error in commissioner's judgment in issuing charges, but rather an assessment on the part of prosecutors over the possibility of conviction.

"It's not a question of whether our finding of probable cause [for an arrest warrant] is in error, it wasn't in error, it was what it was," Weissert said. "We are an office that was designed not to be lawyers" but to "mirror the community."

He said commissioners aren't adjudicating anything and don't do work that would require a law degree. "If you're going to do more than what we're doing, then you really don't need a lawyer, you need a judge," Weissert said.

Safeguarding liberties

The Code of Maryland requires only that commissioners, who are appointed and serve at the pleasure of the district court's chief judge, be 18 or older and residents of the counties in which they serve.

The judiciary adds a requirement — in job descriptions recently posted online for Washington and Prince George's counties — that they also have a bachelor's degree and the "ability to type efficiently." The job write ups warn that "employees may be exposed to individuals who are hostile, emotionally charged and/or unhealthy or wounded."

In Central Booking Friday morning, the commissioners spoke to defendants through openings in the glass partitions, passing paperwork through the holes. The proceedings aren't recorded — a budget issue, said Weissert — which means there's a lot for prisoners to sign, acknowledging that their rights have been explained to them and so on.

The defendants, mostly African-American men, sat close to the glass, appearing to hang on every word. They treat the commissioners like lawyers, asking questions and potentially providing details that are often better left unsaid, Colbert said, highlighting the need for public defender representation.

But Weissert said his staff isn't taking notes.

"We're neither for the prosecution nor for the defense. We're there for that person to understand their constitutional rights and why they were yanked off the streets," said Weissert, who's worked in the state's district court system for 40 years, since it was created. "The purpose of our office is to be a safeguard of your liberties."

He claims that all commissioner proceedings outside of Baltimore's Central Booking facility are public, as is required under the Maryland constitution.

"There's misunderstanding in the Central Booking in Baltimore City because it is a detention center that somehow they can trump judicial rights," he said, adding that it's a disservice to citizens.

'Maximum protection'

Maryland's commissioner system was put in place in 1971, alongside the district courts, which replaced a magistrate model that had turned corrupt by the 1960s, Weissert said.

Many other states have commissioners, though they may call them by another name, he said. Many require that the employees hold law degrees and perform legal duties.

"The difference between Maryland and other states is Maryland is quite clear that there is no adjudicatory power," Weissert said, which leads commissioner's here to "err on the side of the rights of the defendant" when determining whether to set bail.

But some lawyers worry that they have incentive to do the opposite, ordering high bails for nonviolent offenders to assure they aren't freed to commit more crimes.

Studies show that bail is set in half of the cases commissioners hear — most involving nonviolent offenses — and that their figures are typically upheld by judges during review hearings. "They err on the side of caution," said Warren Brown, a criminal defense attorney in Baltimore.

"These commissioners are not versed necessarily in the law. … It is insane, it's something that should have been changed a long time ago," Brown said. "The question oftentimes is asked what do you need a commissioner for?"

To that question, Weissert responds: "We are independent judicial officers in the third branch of government. There is no influence over us, there's no influence from the state's attorneys, no influence from the defense [bar] and that gives citizens the maximum protection."