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Have a heart, Md. judges: Hold a pre-holiday hearing

While considerable work remains to repair Maryland’s pretrial justice system, there’s one sensible thing that judges, prosecutors and defense attorneys can do right now to make a significant difference in dozens of lives: take a close look at the incarcerated population awaiting trial to see who should be released before any more winter holidays pass.

Why hold an additional pre-holiday hearing for arrestees who have already appeared at bail hearings before a District Court commissioner and then a reviewing judge within days following arrest? Let us count the ways.

For starters, consider the automatic, court-ordered 30-day (at least) wait for another court appearance that follows every Maryland bail review hearing. Anyone arrested and jailed Thanksgiving week should not expect to reappear in court until after New Year’s, given the holidays. Compare that process to New York’s, where incarcerated defendants return to court within three to five days after a bail hearing to learn whether prosecutors intend to prosecute or dismiss various charges, giving a judge the opportunity to reconsider the original bail conditions. Providing deserving Maryland defendants with a pre-holiday hearing allows both defense and prosecuting attorneys to present relevant information not previously available that spares individuals from further incarceration and taxpayers from paying the bill.

Next, reflect on indigent defendants being persuaded out of a lawyer’s assistance at commissioner hearings. Commissioners, typically without a law school education, are not accustomed to facing lawyers at their hearings. Indeed, it took a hard-fought, seven-year lawsuit brought by three pro bono lawyers — and vigorously opposed by the state — before Maryland’s highest court in 2013 recognized poor people’s constitutional right to counsel when their liberty was at stake. But the reality is less rosy: Only a minimal number of indigent defendants take advantage of legal representation; most surrender this valuable right. Why? They are given a choice between an immediate hearing before a commissioner, and thus the potential to go home right away, or a wait for a lawyer. Add to that the discomfort of telling the judicial officer who ultimately will decide your liberty that you don’t trust his or her judgment and want to wait. Which would you choose? In Baltimore County, 85 percent of indigent defendants decide to go it alone.

And since commissioner hearings are neither transcribed nor taped, lawyers later are left to wonder what happened there. An accused’s family also cannot see, hear or contribute needed information to the hearing officer.

And even when city defendants opt for representation, the circumstances are less than ideal. An assigned attorney conducts a quick interview in the bowels of the Central Booking jail inside the same cell area where the commissioner sits on the other side of a Plexiglas window — hardly equivalent to a judicial hearing conducted inside a public courtroom.

The assigned lawyers do their best to make an effective argument, though commissioner rulings frequently leave many defendants in jail on “no bail” status, with their last hope being a review hearing.

That brings us to consideration No. 3: Bail review judges typically affirm commissioner decisions. Public defenders at review hearings try to meet their clients to gather information before representing them in front of a reviewing judge that same morning, but time is limited. In Baltimore City, it is common to see one public defender representing between six and 10 clients, one after another. Despite their earnest effort to persuade the presiding judge to reverse the commissioner’s bail ruling they find most judges unwilling to do so. Current data from the University of Baltimore Law School’s bail clinic shows city judges overwhelmingly agreeing with commissioners and changing fewer than one of 10 outcomes — sometimes favorably for the defendant and other times to harsher conditions.

Providing a pre-holiday review is more than a humanitarian gesture to allow people to rejoin families and community until trial, though that alone would be a worthy objective, considering the severe consequences of detainees losing jobs, housing, family and being exposed to an unhealthy environment. The proposed hearing also would afford a meaningful right to counsel where the lawyer most familiar with the defendant’s case and background presents updated information and alternatives to further incarceration. Prosecutors, as “ministers of justice,” would review their cases and evidence sooner to determine whether conviction is unlikely, or whether they can recommend release for individual defendants knowing they must return for trial.

With input from the defense and prosecution, judges who monitor the jail population find it easier to review detainees’ circumstances and support release, thus promoting a more efficient and less taxed pretrial justice system.

When detainees who pose no clear danger or significant flight risk regain liberty, it’s a win-win situation for the principal players, corrections officers and the community.

Doug Colbert teaches at the University of Maryland School of Law and was one of the pro bono lawyers bringing the right to counsel suit. His e-mail is dcolbert@law.umaryland.edu.

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