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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. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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