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Accused murderers likely to stay in jail awaiting trial

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When the Indiana Supreme Court upended 150 years of precedent concerning murder defendants, it raised eyebrows and stirred debate but, in practice, the impact of the opinion is expected to be very limited.

In Loren Hamilton Fry v. State of Indiana, 0900-1205-CR-361, the Supreme Court held that in murder cases, the state, not the defendant, has the burden of proof as to why the individual charged is not entitled to bail. This reversed precedent first set by the same court in the mid-1800s and sustained through the 1900s.

Fry, accused of murdering his neighbor, David H. Schroder, on Sept. 20, 2011, challenged the constitutionality of the state statute which goes beyond Article 1, Section 17 of the Indiana Constitution by including language stating that the person charged with murder has to prove why bail is appropriate.

Appearing before the state Supreme Court, Fry renewed his argument that Indiana Code 35-33-8-2(b) is unconstitutional, and he asserted the state’s founding document does allow for murder defendants to get released on bail.

The Supreme Court split on the decision, submitting four opinions. The majority agreed with Fry that the state statute is unconstitutional.

Joel Schumm mug Schumm

“By placing the burden on the defendant accused of murder or treason in a bail proceeding, we are in effect requiring him, while hampered by incarceration, to disprove the State’s case pre-trial in order to earn the right to be unhampered by incarceration as he prepares to disprove the State’s case at trial,” Justice Steven David wrote for the majority. “There is not a valid justification for such a backwards process.”

Attorneys do not anticipate much will change because of the Supreme Court’s stance. The standard for proving a murder defendant does not deserve jail has been set very low and, should a defendant be found to be eligible for bail, the cost of surety bond will likely be higher than many could afford.

Asking himself rhetorically if the ruling means accused murders will be out on bail, Larry Landis, executive director of the Indiana Public Defender Council, answered, “I think that would be unlikely.”

Constitutional question

Fry’s attorney, solo practitioner Jim Brugh, argued the constitutionality question before the trial court and before the Supreme Court.

In his brief to the Supreme Court, the Logansport attorney asserted Article 1, Section 17, which provides a right to bail, also extends that right to murder defendants except “when the proof is evident or the presumption strong.”

However, Brugh continued, while the state statute mirrors the Indiana Constitution on conditions that must be met for individuals charged with murder, the statute goes too far when it gives the murder defendant the burden of proof that he or she should be admitted to bail.

The trial court declared the statute unconstitutional but still denied Fry the opportunity to post bail.

Brugh based his argument on his reading of laws from other jurisdictions. He found Indiana was in the minority of states requiring the defendant to prove bail is appropriate and, more importantly, no one had ever challenged the law in this state.

In its brief to the Supreme Court, the Office of the Indiana Attorney General maintained the justices did not have to address the question of the statute’s constitutionality. Even with the burden of proof on the state, the trial court still ruled Fry should not receive bail.

Indiana Justice Robert Rucker agreed with the state’s position that because the trial court denied bail, the constitutional question did not need to be considered.

Rucker also expressed hesitancy in overturning 150 years of precedent but he noted, “if the proper case were before us, then I would be in favor of harmonizing the statute in a way to uphold its constitutionality and in the process distinguish rather than overrule existing precedent.”

As part of its brief, the state did review the statute and found grounds supporting its constitutionality. Like Rucker, the state cited the Supreme Court’s consistent interpretation of Article 1, Section 17, for 150 years. The state made the point that Hoosiers have not amended that section of the constitution, and the Legislature has demonstrated agreement with the court by codifying its interpretation.

Joel Schumm, clinical professor of law at Indiana University Robert H. McKinney School of Law, pointed out the Supreme Court pondered the Fry case a long time, which indicates this issue was not something straightforward for the court to discuss.

“I think all the opinions were thoughtful,” he said. “I think all the opinions did a good job in respecting each other.”

Limited impact

Although the Supreme Court shifted the burden of proof, it held the state has to show only a preponderance of evidence. Meeting this standard, attorneys said, should be easy because it is low and, typically, the state has strong evidence when bringing a murder charge.

“Bail is like insurance to guarantee that the defendant will return to court for trial,” said Bryan Corbin, spokesman for the Indiana attorney general’s office. “In finding that the state has the burden of proof to show that a murder defendant should be held without bail, the Indiana Supreme Court found that the state met the burden in the Fry case. Although it is still too early to draw any firm conclusions, early indications are that the practical impact of this decision is quite limited and that murder defendants bailing out while they await trial are the exception, not the usual outcome.”

Brugh said even though he pushed for the court to set the higher standard of “clear and convincing evidence” for the state to meet, he is pleased with the Supreme Court’s decision. The change in the law now puts the burden on the state and gives a person charged with murder the opportunity to get bail based on the facts.

And getting out on bail, Landis said, can make a significant difference in defending against criminal charges.

In general, he said, a defendant who gets released on bail can help the attorney prepare the case, in part, by finding witnesses the attorney may have difficulty locating. Also, the defendant will be more easily accessible to the attorney and any conversations between the defendant and the lawyer will not be recorded as they are in jail.

Finally, Landis continued, studies have shown that defendants who are held pre-trial usually get longer sentences than those who make bail.

“I am very happy to have been able to change the law,” Brugh said. “I am pleased with the decision.”•
 

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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