Lawyers-at-bail ruling could take effect as soon as Tuesday

The Court of Appeals pushed back a deadline Friday for authorities in Baltimore to expand criminal defendants' access to lawyers, but one of the state's top judges said she does not expect to alter the court's underlying ruling that suspects have a right to counsel at all bail hearings.

The ruling last year, which has set off a wide-ranging debate on how to handle the 175,000 or so people arrested in Maryland each year, could take effect as soon as Tuesday.

District Court administrators — the defendants in the case — as well as the governor and Senate president had hoped the hearing would be a chance to reverse the ruling, which is vexing policymakers as they try to figure out a way to comply. Officials have estimated the cost of a solution at $30 million per year.

But Judge Lynne A. Battaglia quickly shut down any discussion of the court going back on the "Richmond decision," named for lead plaintiff Quinton Richmond, a Baltimore man who in 2006 demanded a lawyer at his first bail hearing and was denied one.

"That's not on the table," she said. The rest of the hearing focused on how the court system might adapt to the decision, a sign legal experts said could mean the matter is settled.

The court ruled in September that criminal defendants have a right to a lawyer when bail is set at hearings before a District Court commissioner. Currently, the state only provides lawyers at a suspect's second hearing, which happens in front of a judge.

Despite the court's finding, the ruling has not been put into effect, and the issue of how the state will comply remains up in the air.

The high court extended a stay on a lower court order that lawyers be provided immediately; it was due to expire Friday but was extended until Tuesday afternoon. And while the judges floated some ideas about how to proceed, the hearing ended with little clarity.

Steven M. Klepper, an attorney who specializes in appeals cases and blogs on the topic for the Maryland State Bar Association, said the short stay suggests the court will issue some kind of order next week, with a detailed opinion to follow.

Senate President Thomas V. Mike Miller said he still hopes the ruling could be overturned. "The easiest thing would be for one or more of the judges to admit a mistake was made."

But if the judges do not reverse themselves, it will be up to the legislature to craft a solution to comply with the ruling. A spokeswoman for Gov. Martin O'Malley said the governor is now in favor of the General Assembly arriving at a long-term answer.

"He's working with legislative leaders to overhaul the current system in a way that addresses the Richmond decision and improves the pretrial system as a whole," said spokeswoman Nina Smith.

Simply paying lawyers to take on the work could be costly, though lawyers in the case have challenged the $30 million estimate as too high.

Assistant Attorney General Julia Bernhardt, who represents the judiciary, said the state was in a fix because it has no money to provide for lawyers at the hearings. "The entire system is designed not to have counsel in that setting."

To avoid the cost, the General Assembly is considering plans to mostly eliminate the first round of hearings. They could also put jail officials — instead of court commissioners — in charge of the first hearings, a technical change that might not trigger the need for an attorney.

Those changes could take up to a year to implement, Bernhardt said. Lawmakers are also looking at a stopgap measure, changing the way commissioners make release decisions, also potentially avoiding the need for lawyers to be present.

Michael Schatzow, an attorney for the plaintiffs, urged the Court of Appeals to compel the state to provide lawyers. He argued that 20,000 people in the city alone had been denied their rights since the high court ruled.

Schatzow said it was possible that the legislature would not act this session, meaning the courts could not afford to wait. And without further action by the judges, Schatzow argued, the other branches of government would not feel the need to "lift a finger."

"The legislative and executive branches do not have a financial veto over the decisions of this court," Schatzow said.

Bernhardt said that if nothing happened and the ruling went into effect, the court system would ultimately do its best to comply.

Schatzow proposed modifying the order to give judicial administrators a week or so to prepare a temporary solution using court-appointed lawyers in Baltimore. The decision could be phased in over a longer period elsewhere, he said.

Copyright © 2019, The Baltimore Sun, a Baltimore Sun Media Group publication | Place an Ad