Bills seek to reverse high court ruling on bail hearings

State legislators have drafted emergency bills to reverse a Maryland Court of Appeals order forcing public defenders to attend thousands of bail hearings for indigent defendants held in front of district court commissioners each year, after law enforcement officials complained about the cost.

The measures, introduced in the Maryland House and Senate, would amend the state's public defender statute to remove the right to counsel at the commissioner stage, before the high court's mandate takes effect next month.

"My office was contacted by various state's attorneys and their organizations concerning the crisis that it would create for them in their budgets," said Del. Michael A. McDermott, the Wicomico and Worcester County Republican who submitted the House version of the bill.

Prosecutors believe they would have to attend the hearings as well, to counter the defense attorneys, which would require both sides to double their budgets, McDermott said.

The Maryland Office of the Public Defender, while it says it cannot afford to comply with the court's ruling, opposes the legislative efforts, believing that defendants have a constitutional right to have a lawyer present when their freedom is at stake.

Public Defender Paul B. DeWolfe plans to ask for a stay of the court ruling, which becomes mandatory Feb. 3, to figure out a way to fund both short- and long-term compliance, which would likely cost millions of dollars.

"We don't have the current staff, and we don't have the current funding," he said.

An advisory opinion issued Tuesday by the Maryland attorney general's office suggested that the legislative measures would hold up to constitutional scrutiny.

The Maryland Court of Appeals held in an opinion issued Jan. 4 that the state's public defender statute provided for attorney representation during bail hearings before commissioners and ordered that public defenders be made available for the more than 170,000 hearings per year. Public defenders now staff only a handful of bail review hearings and never attend commissioner hearings.

The appeals court decision was hailed as a long-awaited "gift of justice" by University of Maryland law professor Douglas Colbert, who had been fighting for such representation for years, particularly for nonviolent offenders whom he contends are more likely to have unnecessarily high bail set if they do not have representation.

If passed, the emergency legislation would undo the gains he thought had been made.

During a briefing Thursday on the House bill, Colbert said, he tried to drive home through testimony the importance of having a lawyer at bail hearings. "I said, 'Look, if you knew someone who had gotten arrested, of course you would want a lawyer to speak for that person's liberty, and it's no different for working people or poor people.'"

The Senate version of the bill was introduced by Sen. Richard F. Colburn, a Republican who represents Caroline, Dorchester, Talbot and Wicomico counties.

Based on a briefing he attended Monday, Colburn said, "There's not a penny in the governor's budget" to comply with the court ruling. He said it could cost taxpayers $20 million and worried that police would be taken off the streets as they waited for public defenders to appear for commissioner hearings, which are held 24 hours a day, seven days a week.

"Maybe the public defender's office wants to utilize this Court of Appeals ruling to expand their force," Colburn said, "but I don't think the taxpayers will have it."

Hearings are set for Tuesday on the House bill and Feb. 8 on the Senate version.

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