- The Enterprise
- The Recorder
Time is running out for Maryland’s courts, jails and lawyers to fully conform with a 2012 ruling that criminal suspects are entitled to legal representation at their first bond hearing, and state legislators are seeking ways to reduce the costs of those changes.
Public defenders began taking part in suspects’ bond review hearings held in district courts and circuit courts after the decision by the Maryland Court of Appeals. But two years later, lawmakers and lawyers say they’re aware that the partial compliance will no longer suffice. The ruling called for lawyers to be available for newly arrested suspects, when the bond requirement for their pretrial release is being set by a court commissioner.
Any changes will require more space and staff in St. Mary’s jail, according to its commander. And the county’s state’s attorney said that if defense lawyers will be at the initial bond hearings, so must one of his prosecutors. A Calvert judge recently issued a memo seeking private lawyers to make themselves available for the work, at the same pay scale that they get when cases are assigned to them by the public defender’s office.
The additional cost statewide to the public defender’s office could be as much as $40 million a year if the appeals court ruling’s requirements were fully implemented, state Del. Joseph F. Vallario Jr. (D-Calvert, Prince George’s) said last week, and legislators instead are seeking ways to reduce or even eliminate the court commissioners’ role in the process.
Vallario, a private-practice attorney and longtime chairman of the House Judiciary Committee, acknowledged that a change of that sort would hold many newly arrested inmates in custody for a longer period, at the expense of the counties where the inmates would be waiting to see a judge to plead for their release.
“We’ve got several bills that were filed late, ... that are now into the hopper,” he said.
The appeals court ruling written by Judge Mary Ellen Barbera, now the court’s chief judge, concerned a complaint by jail inmates in Baltimore, where a circuit court ultimately agreed that they have a right to a public defender at their bond hearings. That decision was shelved to let the appeals court further review the matter, and Barbera and a majority of the judges, in a split decision, affirmed the inmates’ right to that representation.
“The initial appearance before a [court] commissioner in Maryland is an event that marks the beginning of the criminal adversarial process,” Barbera wrote. “Whenever a commissioner determines to set bail, the defendant stands a good chance of losing his or her liberty, even if only for a brief time. Furthermore, the likelihood that the commissioner will give full and fair consideration to all the facts relevant to the bail determination can only be enhanced by the presence of counsel.”
Barbera wrote that concerns from the public defender’s office about the cost of attending court commissioner proceedings were “not a proper consideration for the judiciary,” in that “we cannot declare that [inmates] have a statutory right to counsel at bail hearings and, in the same breath, permit delay in the implementation of that important right and thereby countenance violation of it, even for a brief time.”
In their dissenting opinion, Judges Glenn T. Harrell Jr. and Sally D. Adkins countered that a “stay of a modest duration,” postponing the ordered changes and their financial impact for six months, would also allow time to implement the new procedures and make changes to the offices where the court commissioners’ hearings are held.
The appearance of public defenders at bond review hearings in district court and circuit court during the past two years was in effect a stopgap measure, one that has run its course, according to Vallario and St. Mary’s State’s Attorney Richard Fritz (R).
“It’s going to be like mini-trials over bond,” Fritz said during a recent interview at his office in the county courthouse.
Vallario said one proposal legislators are considering would limit the court commissioners’ role to just telling newly arrested suspects their rights, and they would have to wait for their bond hearing until they appeared before a judge.
“We’re going to eliminate that [commissioner bond] hearing, and everybody’s going to go to the courthouse,” the delegate said. The initial appearance before the court commissioner within 24 hours after an arrest would still take place, he said, to ensure that people aren’t being detained by police “for questioning” for an indefinite period.
Another proposal would automatically grant arrested suspects release on personal recognizance, he said, if they’re charged with a nonviolent offense carrying a maximum penalty of one year in jail, and have not missed showing up in court during the previous five years.
But as of now, slightly more than half of the arrested suspects have gained pretrial release after seeing the commissioner and before they would have had a bond review in court, Vallario said, and delaying that initial bond hearing would slow that exodus.
“They’re going to have to spend the night in jail,” he said. “The locals are going to have to put out more money for housing and detaining that person.”
St. Mary’s Sheriff Tim Cameron (R) said he would need more bed space and staff to handle the additional inmates.
“We’re going to hold people who normally were released. We can’t put them in [the regular inmate] population, because they haven’t been committed yet,” the sheriff said. “It’s a total change in process.”
Sheriff’s Capt. Michael Merican, the jail’s commander, said that assuming the commissioners’ bond hearings are eliminated, it would cost $750,000 a year from the onset to have six additional correctional officers watch over the detained people in makeshift living quarters in the jail’s gymnasium, plus two more officers to help handle the increased number of detainees being escorted through a tunnel to district court.
The use of the gymnasium would be “mixing everybody that’s arrested into one big place,” Merican said, and the county would need to spend $8 million to promptly renovate the existing central booking station into a safer overnight holding area.
“I’m out of space,” Merican said, adding that the new procedures “will change how corrections and the courts have done things for 40 years. It’s going to impact every jail in Maryland.”
The message to private attorneys sent out in December by District Judge Robert B. Riddle, the administrative judge for St. Mary’s and Calvert, states that they will be paid $50 an hour for evening and weekend duty to represent indigent defendants, if the initial hearings before the court commissioners continue under the appeals court’s requirement.
Fritz said he would also need additional quarters for his staff at the county jail to prepare for those proceedings.
His existing office space in both the courthouse and the Carter state office building would be inaccessible, the prosecutor said, during initial bond hearings held on nights and weekends.
“I’m going to have to staff it with attorneys, also, which means our budget is going to have to be increased,” Fritz said. “I’m going to have to interview the [arresting] police officer. He’s [also] going to have to hang around.”