Md. courts aim to provide lawyers at bail hearings by summer

Criminal suspects in Maryland will have free access to lawyers at their first court appearances as soon as July, a top judiciary official said Tuesday, as the state struggles to comply with a court order that has been delayed for months amid concerns about its cost.

The change, mandated by the Maryland Court of Appeals as a way to treat suspects more fairly before trial, has challenged all three branches of government. The General Assembly could not agree on a plan to restructure the pretrial release system, opting instead to put aside $10 million to pay for lawyers.


But that might not be enough to pay for attorneys at the approximately 160,000 bail hearings each year in Maryland. The cost has been estimated at triple that amount, and local governments fear that they could be on the hook for the difference.

The $10 million becomes available July 1 to pay for the lawyers. Judge John P. Morrissey, who is responsible for implementing the change in his role as incoming chief judge of the District Court, said that by then the state should be able to work out the practical issues associated with the change.


"There's several unknowns," he said, but two months is "a reasonable time frame."

In recent years, Maryland has made public defenders available at defendants' second court date: a bail review hearing before a judge. But the high court ruled in 2013 that the first hearing, in which a court commissioner sets or denies bail, is a crucial time for suspects to consult counsel.

Advocates for the poor contend that earlier representation would lead to fewer people spending time in jail awaiting trial and would enable them to keep jobs and housing, making them less likely to commit other crimes.

The lawsuit that led to the change was brought by a group of Baltimore defendants who said the state violated their rights by holding bail hearings without offering lawyers. At a Court of Appeals hearing Tuesday on the implementation of the decision, their attorneys urged the state to move quickly.

Michael Schatzow, who represents the plaintiffs, asked the court to issue an injunction ordering that lawyers be available as soon as possible in Baltimore, with the rest of the state to follow close behind and no later than July 1.

"It's time to go," he told the judges.

Later, in an interview, he said he was "delighted" by Morrissey's comments.

The Court of Appeals ruled in 2012 that defendants had a legal right to be represented by an attorney when their bail is set. After that ruling, the General Assembly changed the law to say that counsel was guaranteed at the review hearings.


The court again ruled in the plaintiffs' favor last fall, ordering lawyers at initial hearings in a decision based on the state Constitution. But the judges put the mandate on ice to give the state time to adapt.

In March, the judges said they would wait a few months to see what the Assembly would do.

Lawmakers considered many proposals that would have overhauled the bail system, but the session ended last month without an accord. Instead, lawmakers set aside $10 million of the judiciary budget to pay for a pool of private lawyers to advise at the hearings.

The arguments Tuesday ended without any hint as to what the Court of Appeals might do next. Despite the court system's commitment to get a system up and running, a number of practical issues must be resolved.

The defendants will be represented by private attorneys paid by the court, rather than staff from the public defender's office. Morrissey said he has been rounding up attorneys and is seeking more, but could not say Tuesday how many have signed on.

Any costs beyond the $10 million will be charged to the county where the lawyer was provided.


Leslie Knapp Jr., legal and policy counsel at the Maryland Association of Counties, said the organization was not told ahead of time about the idea and that local governments are worried about the cost.

"This is an open-ended expense," he said. "We don't really know how much it's going to be."

The next step is a meeting Friday at which officials will discuss new court rules to accommodate lawyers at bail hearings. The rules will go to the Court of Appeals for final approval.

After the rules are in place, Morrissey said, he will begin training the state's nearly 300 bail commissioners who are used to operating under the existing system. The effort will take about 10 days.

With those issues unresolved, plaintiffs said in court that they are seeking an injunction to force District Court officials to commit to a timeline. The officials say that is unnecessary because the court will comply voluntarily.

While the sides are approaching consensus, Paul B. DeWolfe Jr., the head of the public defender's office and a party to the case, said he was disappointed in the outcome.


He said he had hoped that, spurred by the likely cost of providing lawyers at bail hearings, the Assembly would streamline the pretrial process, eliminating commissioners' role in the bail system and using computers to evaluate who can safely be released before trial.

That plan died, but DeWolfe hopes it can be revived.

"It was a real opportunity to implement bail reform," he said.