Overturn of Bail Ruling ‘Not on the Table’; Unclear What is

In a hearing Friday, Judge Lynne A. Battaglia made it clear that the option for the Court of Appeals to go back on it’s decision in DeWolfe v. Richmond was off the table. What remains unclear is how the state will comply with the ruling.

As previously reported on Conduit Street, the court found under DeWolfe v. Richmond, that there is a State constitutional requirement to provide representation to indigent individuals at all stages of the bail process, including the initial appearance before a District Court commissioner and subsequent review by a District Court judge. Complying with this decision will have significant costs on the state and county levels, upwards of $30 million per year.  As reported in the Baltimore Sun, the court has extended a stay to allow authorities in Baltimore to figure out a way to comply with the ruling.

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.

As previously reported on Conduit Street, in papers filed with the Court of Appeals, the State judiciary administrators and the Attorney General’s office asked that the court overturn the ruling in DeWolfe v. Richmond requiring that indigent defendants have a constitutional right to representation from a public defender at the initial bail hearing. As the courts have declined to take that route, potential solutions for compliance appear to now remain in the hands of the legislature. A number of possibilities are in the air. As the Baltimore Sun notes:

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.

MACo will continue to track  and update on this issue.
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