Maryland public defender asks for stay in high court's ruling

The state would have to hire 284 new public defenders to comply with a recent Court of Appeals ruling requiring lawyers for indigent defendants at thousands of annual bail hearings, according to an affidavit filed Thursday by Maryland Public Defender Paul DeWolfe.

"I have determined that the Office is unable to comply with the court's mandate at this time in light of its current resource constraints," DeWolfe wrote in the eight-page, sworn document, filed in the state's highest court. It accompanied a motion asking that the new requirement, outlined in a Jan. 4 opinion, be stayed for at least six months, until Aug. 1.

The Maryland Court of Appeals refused an earlier request to suspend the order, however, noting that judges "cannot declare that [defendants] have a statutory right to counsel at bail hearings and, in the same breath, permit delay in the implementation of that important right."

Terri Bolling, a spokeswoman for the Maryland judiciary, said DeWolfe's new motion will be considered at a Feb. 16 meeting, which has the effect of delaying the new requirement for about two weeks. It took effect in theory as soon as the opinion was handed down last month, but an official mandate had been expected to be issued Feb. 3, after a rules committee meeting.

"There is no mandate until motions for reconsideration are considered," Bolling said.

Meanwhile, two state legislators have filed emergency bills in the Maryland House and Senate that would overturn the ruling altogether by amending state law to specifically exempt initial hearings before District Court commissioners, the first step in the prosecution process where bail is considered, from requiring public defender presence.

The legislators — Del. Michael A. McDermott, a Wicomico and Worcester County Republican, and Sen. Richard F. Colburn, a Republican who represents Caroline, Dorchester, Talbot and Wicomico counties — contend that the costs are too great to let the ruling stand.

The high court's opinion, the result of a 2006 class action suit filed in Baltimore Circuit Court, found that commissioner appearances, and by extension any bail review hearings that follow, are critical stages in the legal process that by statute guarantee the right to an attorney.

"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 in their opinion, which affects hearings throughout the state. "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 was heralded as a long-awaited "gift of justice" by some defense lawyers, who declared unconstitutional the practice of no representation and suggested that it led to unnecessary incarceration of defendants by overzealous court officials. But it was deemed impossible to implement by DeWolfe.

"It is important to note that in the [class action] litigation, we supported the right to counsel," DeWolfe wrote in an email interview. "However we also recognized that compliance was impossible if the right was declared without any plan to address implementation."

About 180,000 commissioner hearings are held throughout the state every year, seven days a week, 24 hours a day. And none of them are staffed by public defenders. To do that, 250 new lawyers would have to be hired, DeWolfe said.

Adding to that about 85,000 bail review hearings at 35 district courthouses, most of which aren't staffed, the total number of new attorneys required would go up to 284. That's a 53 percent staff increase.

DeWolfe noted in his affidavit that his office's 535 attorneys are already overworked and that caseloads exceed "standards for effective assistance of counsel in nearly every case type and every jurisdiction in the state."

It would cost millions to attend all bail setting and review hearings as well.

DeWolfe said he met with people from every facet of the court process — prosecutors, corrections officials, private defense attorneys and court commissioners — to develop a compliance plan.

He considered hiring "panel" attorneys, private lawyers deemed qualified and willing to represent indigent defendants for reduced fees, at $50 per hour, for a total cost of $28 million per year, to staff the commissioner hearings, but concluded that there are not enough panel attorneys statewide to meet the demand.

And he considered relying on students and pro bono volunteers, but concluded that "it is unrealistic and impractical to expect that this mandate can be fulfilled by relying solely or substantially on volunteers."

His office has submitted supplemental funding requests for the current and coming fiscal years to the Department of Budget and Management in the hope it will help close the gap.

"We cannot and will not spend money that has not been appropriated for this purpose," DeWolfe told The Baltimore Sun.

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