Bill Hopes To Address Court’s Public Defender Opinion

BERLIN -- A recent Maryland Court of Appeals opinion guaranteeing legal representation for defendants at the earliest stages of criminal proceedings, including initial bail reviews, could cost state and local governments millions of dollars to implement, but an emergency bill introduced by Delegate Mike McDermott (R-38B) may provide a remedy.

In early January, the Court of Appeals ruled indigent individuals charged with crimes were entitled to public defender representation at all stages of criminal proceedings against them including the initial bail review hearings before District Court Commissioners that often occur at all hours of the day when crimes are committed. In its opinion released in early January, the high court ruled even the earliest bail review hearing represents a potentially critical stage in the criminal process and that a defendant has a right to public defender representation.

While defendants have always been entitled to representation at every stage of a criminal proceeding against them, many are not represented at initial bail hearings and bond reviews. However, the high court’s opinion released in early January guarantees their right to a public defender at every stage, regardless of the time of day or the circumstances of the arrest.  

“The initial appearance before the commissioner, including the bail hearing that is part of that event, is clearly encompassed with a criminal proceeding and may result in the defendant’s incarceration,” the opinion reads. “The only remaining question is whether the bail determination is a stage of that proceeding. Doubtless, it is.”

As a result, the state will now be required to have public defenders readily available to indigent arrestees at every stage of a criminal proceeding, even if they are arrested at 4 a.m. or any time of day or night. However, the high court issued its opinion without an implementation plan in place. Ostensibly, the state’s public defender’s office will have to have attorneys on standby at all hours to honor requests for representation at initial bail reviews and preliminary hearings.

The potential cost of doing so is staggering for a public defender’s office already struggling to keep up with demand. However, the court opined the defendants’ rights superseded cost of implementation.

“We cannot declare that defendants 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 violations of it, even for a brief time,” the opinion reads.

However, McDermott’s House Bill 112 seeks to create an exception in the law that would maintain the status quo for indigent defendants at initial bail review hearings before District Court Commissioners. The bill, introduced as emergency legislation, reads “except for an initial appearance before a District Court commissioner or a judge in the District Court or Circuit Court” representation shall be provided to an indigent individual in all stages of a criminal proceeding.

McDermott said prior to introducing the bill he sought the opinion of Maryland Attorney General Doug Gansler, who concurred the exception did not appear to compromise a defendant’s 6th Amendment right to representation. McDermott said the bill was introduced as emergency legislation because of concerns about the logistics and expense of carrying out the Court of Appeals opinion.

“This has the potential to be very onerous for the public defender’s office,” he said. “This could easily cost the state $100 million to implement. There appears to be some support for it and hopefully it will move through. At the very least, I hope it gives the state a little more time to figure out how to implement this and how to pay for it.”