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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. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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  4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

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