DeWolfe Update: Legislative Standstill and a Modest Alternative Proposal

By Michael Wein

As discussed in numerous prior posts on this blog, DeWolfe’s implementation has been an unexpected headache for the Court of Appeals. The Court held in 2013 that criminal defendants have a constitutional right to counsel at their initial bail determination. Legislation (discussed in my previous post), but nothing passed. It appears, however, that the General Assembly has appropriated $10 million to pay for counsel. I’ve not been involved with this case, but, having worked in Annapolis before law school, I’ll put on my legislative hat to propose a workable solution that would predictably cost under $10 million. To do this, three separate categories are necessary to first examine: (1) Baltimore City; (2) the interim constitutional solution using cost-efficient video conference technology, and (3) the long-term, non-constitutional, legislative solution.

(After a draft of this Post was complete, it was announced that there would be an Emergency Rules Committee meeting this coming Friday May 9, 2014 chaired by Judge Wilner. From my quick review of the agenda, this post is consistent with these proposed rules)

Baltimore City

Baltimore City has – as pointed out in oral arguments on March 13, 2014 in the present Richmond case, as well as arguments on May 6, 2014 – could within a few weeks begin having attorneys representing criminal defendants immediately, as all arrests go through a form of Central Booking. Major metropolitan cities like New York City already have lengthy experience with this (for those unfamiliar with the concept, think a more serious version of the NBC sitcom Night Court.) (This link is quite funny for those interested) This could even include, now, or at a later date, both a public defender and prosecuting attorney having access to the basic necessities of bail review; (1) the pending charges, and (2) the criminal defendants’ basic background and criminal history, including whether there are any outstanding warrants. Baltimore City, is unique in Maryland from an initial bail determination perspective, with the criminal defendants most adversely affected by the lack of protections from DeWolfe. Furthermore, the DeWolfe constitutional right, was based in Baltimore, and thus the victorious litigants are entitled to most immediate relief, can and should have full implementation done no later than July 1, 2014. It also would not be that expensive, given the already pre-existing set-up for Baltimore City, to have these determinations at or near Central Booking.

Interim Constitutional Solution using Cost-Efficient Video Conference Technology

The various iterations of bills this past General Assembly, tended to focus only on a comprehensive ‘solution,’ variously claimed to cost $30-$55 million. That the amount of costs was far more than the $10 million eventually authorized, is not surprising to some degree. Particularly with legislation in Annapolis that’s labeled ‘Appropriations.’ these tend to start off with seeking ‘everything’ with the expectation that something less ambitious (and more cost-effective) will eventually be agreed upon. It wasn’t until the last few weeks of Session that the focus shifted to crafting an ‘interim’ solution, when it became apparent that none of the various proposals had sufficient support in both chambers. In retrospect, particularly as this was not a regular ‘appropriation’ matter, everyone should have started with the ‘interim’ solution strategy, and perhaps something would have been agreed upon earlier, that would have reduced the Court of Appeals’ direct interest and ability to craft for themselves, how the Constitutional Right should be implemented, as they promise to do in some form no later than June 5, 2014.

All the legislative proposals seem to not fully implement the advantages of new video conference technology. There’s a brief mention of “video conference technology” as part of the Judiciary legislative proposal that was submitted, but that was focusing on how in some Courts bail determinations have direct link ups between the jail and the District Court. (Such as exists in Prince George’s County) Instead, the advances of video conference technology, should have been seen as the “interim solution” for the constitutional right guaranteed under DeWolfe. Technically, what needs to be done is to have available public-defender attorneys (and neutral magistrate judges) available for these initial bail determinations. That is resolvable, though this technology, that has only become commonplace in the past few years.

The District Court system is – as stated in Statute, on its webpage, and a number of cases – a “statewide court.” Thus, it’s not necessary on Day 1, to have all 34 District Court locations open at night and during weekends, in all 23 counties and Baltimore City, to constitutionally implement DeWolfe. Instead, link-ups for the main District Court buildings, with geographic diversity, should be made available with the jail systems of the various Maryland counties. (It could be theoretically done from a single Court, for example, in Howard County, about the ‘geographical center’ of Maryland; though I do not recommend that, as that would seem to offend or at least make very inconvenient the right to a public trial.). Instead, a better solution and recommendation would be to have Baltimore City, the largest city in Maryland, and the direct party in DeWolfe, in effect ASAP, like suggested above. The rest of Maryland, for a constitutional interim solution, can be divvied up six-ways similar to the other existing Maryland Court of Appeals’ Districts. So offhand, District Courts buildings can be made available for initial bail review determinations 24/7 in the following locations (1) Washington County (Hagerstown), (2) Montgomery County, (3) Prince George’s County, (4) Anne Arundel County, (5) Baltimore County, and (6) Worcester County (Ocean City). This would work, assuming they are set up for secured video conference capabilities. This should significantly reduce the cost for an “interim solution” to below the $10 million dollars that’s apparently now agreed upon has been appropriated by the state Legislature for the upcoming fiscal year, with funds available on July 1, 2014.

Counties that aren’t already set up or necessarily willing to hear cases within their own District Courts at the present (such as Garrett County cases being heard via teleconference in Hagerstown), can use video conference capability set ups, at least for now, to comply with the Constitutional requirements of DeWolfe. To give you an example of the comparable ease of what would work, one could set up two I-Pads with secure communications between the Counties and the associated County jail or prison locations sites throughout Maryland. This is capable of a quicker transition, at least for interim purposes, than implementation in all 23 Counties. There would need to be video-conference links for (1) between the various jails and the ‘Central’ District Court location, and (2) a secure line between the jail and the assigned Public Defender, so that adequate assistance of counsel has been maintained. But the fiscal or practical challenge should not be an overwhelming obstacle to implementation. Additionally, secure scanning technology can and should be set up so that the attorneys and judges at the “real-time” location of the seven District Court locations, have access to the Charging documents and Criminal history Record.

Long-Term, Legislative Solutions Can Now Be Considered on “Non-Emergency” Basis in Future Sessions of Annapolis

As I previously commented, during legislative session in Annapolis, I had significant concerns, that the various Legislative proposals, including a separate “Pretrial services unit” without judges or attorneys, should notbe considered as a solution to the temporary “emergency” concerns involving the DeWolfe constitutional right.

I wrote that “the natural and foreseeable consequences of the Pretrial “solution” to Dewolfe, is a greatly expanded DNA database collection system, once the immediate DNA results become a reality [“in 1-4 years”]. The legislature’s “time-sensitive” concern of complying with DeWolfe should not be also invoked sub silencio to also permit a system that would immediately be suited for all arrestees to be subject to DNA testing for the identity and pre-trial services rationales that were the basis upon which Maryland v. King was ultimately upheld, though arguably as pointed out by Justice Kagan, a few years before being ready for primetime. There should be a more measured and considered debate on the subject of routine and mandatory DNA testing for all arrestees in the near future, as a consequential next step of adopting the Pretrial Services approach.”

I still have those concerns. But, video and scanning technologies are sufficiently dependable now that they provide a reasonable Constitutional ‘interim’ solution for the Court of Appeals of Maryland. In whatever order the Court of Appeals were to issue by June 5, 2014, an interim solution ideally would allow the various alternative legislative proposals from this past Term to be fully aired and addressed (hopefully in a non-election year). That is preferable for all parties and governmental branches, and can be done without the apprehension, legitimately driven by the Judiciary’s desire through constitutional interpretation, for criminal defendants not to be further subject to months-long detainment unfairly and unnecessarily, without the assistance of defense counsel.