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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. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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