Making Public Defenders Mandatory For All Court Appearances? Courts To Decide

The Office of the Public Defender has been scrambling to figure out how to provide attorneys to represent defendants, right after they have been arrested, in their first hearing before a court Commissioner, as a result of a recent decision by Maryland’s highest Court. WYPR’s Art Buist reports the decision was supposed to go into effect today; but it has been delayed, at least for a short while.

If the decision to require the Public Defender’s Office, to provide representation at initial appearances before a commissioner, goes into effect, it could cost the state a lot of money.

When a person is placed under arrest, he or she appears before a commissioner within a few hours.  That person decides whether the defendant should be allowed to go home, or be locked-up.  If they are locked-up, the commissioner sets the amount of bail.

The way it works now, the Public Defender’s office isn’t required to provide attorneys until later in the process.  One hundred-76-thousand arrestees appeared before Court Commissioners last year.   It could be at any time, day or night.  Paul DeWolfe, Jr., the head of Maryland’s Public Defender system, told WYPR his main concern is that ...

“It is such a massive change, in our office’s ability to represent the clients that we have now, that we simply don’t have the resources to take on this task right now.”
    
Estimated costs to add Public Defender representation at the Commissioner hearings range wildly from a few million dollars to nearly 100-million dollars per year. With 41 Commissioner locations in the State, additional attorneys would have to be found; and in large jurisdictions, such as Baltimore City, the staffing would need to be 24-hours a day, seven days-a-week.

Prosecutors, and police officers, in Maryland would also be affected, according to Baltimore County State’s Attorney Scott Shellenberger.

“We believe that making these, now adversarial, hearings will slow down the process, which means that police overtime will go up.”
 
The Commissioner hearing takes place shortly after arrest.  If bail is set, the defendant has the opportunity to appear the next business day before a judge for a bail review.  Often, however, the District Court judge keeps the bail status the same. 

Professor Doug Colbert, of the University of Maryland Law School, has studied the issue for 15 years.  He said that people who have lawyers at bail hearings are two-and-a-half times more likely to be released, or have affordable bail set. What a Commissioner decides can have long-term effects.

“If you regain your liberty, then the judge sees you as somebody who ought to hold on to liberty.  If I’m in jail, and the judge sees me in jail, that individual is more likely to keep me in jail, because I look like I belong there.”

The Court of Appeals case reviewed an earlier decision by the Circuit Court for Baltimore City.  The appeals court decided the case based only on the Maryland Public Defender Act.  The statute, itself, can be changed, and emergency bills are pending in both the Maryland House and Senate, which would effectively moot the decision.   Delegate Mike McDermott of the Eastern Shore is sponsoring one of the bills to amend the statute.

“The best way to deal with problems is to keep ‘em as simple as possible. Deal with the actual issue, not try to adjust everything, but just deal with the problem that needs to be tweaked.”
 
The Court of Appeals, however, did not address another issue from the Circuit Court, as to whether the State needed to provide an attorney under the U.S. Constitution, or the Maryland Declaration of Rights.  If at, a later point, the Maryland Court decides there is a mandatory right to counsel, at Commissioner hearings, under the Constitution, then nothing could be done to change it.

On Wednesday, the Maryland Attorney General filed a Motion to Reconsider, which has the effect of holding off implementation of the decision until further order of the court. 
There have also been requests to delay the implementation of the decision from various legislators.  Major concerns include funding; and at present, there are no clear rules on how to handle the situation.  The Court’s Rules Committee is scheduled to meet later today to discuss rule changes.  

Nonetheless, the situation remains in flux.  The Court of Appeals could rule on pending motions at any time.  Once that happens, the requirement that the Public Defender provide attorneys at all commissioner hearings could go into effect immediately.

I’m Art Buist, reporting in Annapolis for 88-1, WYPR.